United States v. Mario Thoma

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, C. Arlen Beam and Raymond W. Gruender (PUBLISHED) [4451585] [16-1283]

United States Court of Appeals
For the Eighth Circuit
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No. 16-1283
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mario Thomas, also known as "Hoodie"
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - El Dorado
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Submitted: September 19, 2016
Filed: September 26, 2016
[Published]
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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
Mario Thomas appeals the district court's1 enhancement of his sentence under
the United States Sentencing Guidelines (U.S.S.G. or Guidelines), and we affirm.
1

The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas.

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Thomas was convicted of distributing cocaine base. At sentencing the district court
applied the Guidelines' career-offender enhancement on the basis of two prior
convictions, one of which was for first-degree battery under § 5-13-201 of the
Arkansas Code. That statute enumerates several classes of conduct that qualify as
first-degree battery, including: "With the purpose of causing serious physical injury
to another person, the person causes serious physical injury to any person by means
of a deadly weapon." Ark. Code Ann. § 5-13-201(a)(1). The Arkansas Code defines
"serious physical injury" as "physical injury that creates a substantial risk of death or
that causes protracted disfigurement, protracted impairment of health, or loss or
protracted impairment of the function of any bodily member or organ," id. § 5-1102(21), and "deadly weapon" as "(A) A firearm or anything manifestly designed,
made, or adapted for the purpose of inflicting death or serious physical injury; or (B)
Anything that in the manner of its use or intended use is capable of causing death or
serious physical injury," id. § 5-1-102(4).
In United States v. Boose, 739 F.3d 1185, 1188 (8th Cir. 2014), we held that
§ 5-13-201 prohibits a wider range of conduct than that which would be considered
a crime of violence under the "force clause" of U.S.S.G. § 4B1.2(a)(1). The district
court therefore employed the "modified categorical approach" when sentencing
Thomas to attempt to determine whether he had been convicted under a divisible
portion of § 5-13-201 prohibiting a class of conduct that qualified as a crime of
violence. It looked to the information, which identified § 5-13-201 as the statute
under which Thomas was charged with first-degree battery. Although that document
did not in express terms identify any particular subsection of § 5-13-201, it parroted
the language of subsection (a)(1), alleging that Thomas, "with the purpose to cause
serious physical injury did cause serious injury to Jarnard McCree by means of a
deadly weapon." The sentencing order indicated that Thomas pled guilty to that
charge and there was no evidence the information had been amended. The district
court concluded that Thomas pled guilty to a violation of subsection (a)(1). It further

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concluded that subsection (a)(1) requires as an element the use of violent force and
is therefore a crime of violence.
The district court applied the career-offender enhancement on the basis of
Thomas's prior conviction under § 5-13-201(a)(1) and another prior conviction for
delivery of a controlled substance. This resulted, after a downward adjustment for
acceptance of responsibility, in an offense level of 31 and a recommended Guidelines
range of 188 to 235 months' imprisonment. The district court denied Thomas's
objection to the career-offender enhancement and sentenced Thomas to 188 months'
imprisonment. Thomas now appeals, arguing that his prior conviction for first-degree
battery under § 5-13-201 was not a crime of violence because: (1) the charging
document does not specify which subsection Thomas was charged with and (2) in any
event subsection (a)(1) does not require the use–actual, attempted, or threatened–of
violent force.2
"We review de novo a district court's application of an enhancement based
upon a prior conviction." United States v. Pierson, 544 F.3d 933, 941 (8th Cir. 2008).
The career-offender enhancement prescribes the offense level for certain defendants
who have "at least two prior felony convictions of either a crime of violence or a
controlled substance offense." U.S.S.G. § 4B1.1(a)(3). The definition of a "crime of
violence" includes any offense, punishable by imprisonment for a term exceeding one
year, that "has as an element the use, attempted use, or threatened use of physical
force against the person of another." Id. § 4B1.2(a)(1). The Supreme Court has
addressed the question of what offenses qualify as a "violent felony" under the Armed
Career Criminal Act (ACCA), Johnson v. United States, 559 U.S. 133 (2010), and we
employ that analysis to determine whether an offense is a crime of violence under the

2

Because we affirm the district court, we do not reach Thomas's further
arguments that his previous convictions for second-degree battery and kidnaping
likewise do not qualify as crimes of violence.
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Guidelines, e.g., Boose, 739 F.3d at 1187 n.1 (noting the ACCA's and Guidelines'
"nearly identical definitions" of "violent felony" and "crime of violence").
Under Johnson, a previous conviction is one for a crime of violence if the crime
of conviction requires as an element the actual, attempted, or threatened use of
"violent force"–i.e., "force capable of causing physical pain or injury to another
person." 559 U.S. at 140. If violent force is an element of the crime of conviction,
the inquiry ends; by being convicted of that crime the defendant necessarily has been
convicted of a crime employing violent force and, therefore, a crime of violence. The
district court may make this determination by "look[ing] only to the fact of conviction
and the statutory definition of the prior offense." Taylor v. United States, 495 U.S.
575, 602 (1990). This "categorical approach" is not appropriate, however, if the
defendant has been convicted under a statute that defines both crimes that do and
crimes that do not qualify as a crime of violence. In that case, the district court may
look to certain kinds of record evidence to determine which of these crimes the
defendant was convicted of–the so-called "modified categorical approach." See
United States v. Ossana, 638 F.3d 895, 899-900 (8th Cir. 2011). In the event of a past
conviction based on a guilty plea, the district court may look to "the terms of the
charging document, the terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this information." Shepard v.
United States, 544 U.S. 13, 26 (2005). Both parties agree that the only record setting
forth a factual basis for Thomas's conviction under § 5-13-201 in this case is the
charging document.
Thomas first argues that the charging document does not establish that he was
convicted under subsection (a)(1) of § 5-13-201. Records that the district court is
permitted to rely upon under the modified categorical approach must establish the
crime of conviction by a preponderance of the evidence. United States v. Ossana, 679
F.3d 733, 736 (8th Cir. 2012). "Occasionally, . . . it will be necessary to interpret the
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state court record and make reasonable inferences based upon the Shepard-qualifying
materials in order to identify the discrete statutory subdivision at issue." Id. We
agree with the government and infer from the information that Thomas was convicted
under subsection (a)(1). The charge tracks the language of (a)(1), and that is the only
subsection of § 5-13-201 that employs, as the charge does, the term "deadly weapon."
The state court's criminal docket indicates that the information was never amended,
and the plea agreement and sentencing order do not contradict this conclusion in any
way. See United States v. Vinton, 631 F.3d 476, 485 (8th Cir. 2011) (concluding
defendant was convicted under a subsection of a statute because "[t]he charging
instrument precisely track[ed] the language" of that subsection).
Second, Thomas argues that § 5-13-201(a)(1) does not qualify as a crime of
violence under U.S.S.G. § 4B1.2(a)(1). But as the plain language of § 5-13-201(a)(1)
and the statutory definition of "serious physical injury" suggest, one must cause
serious injury to violate § 5-13-201(a)(1). In Smith v. State, 98 S.W.3d 433, 438
(Ark. 2003), the Supreme Court of Arkansas held that repeatedly striking a victim in
the head with the butt of a gun merely inflicted "physical injury" sufficient for a
second-degree battery conviction but not "serious physical injury" as required for
first-degree battery.3 Thus, if it is the case that a defendant exercises physical force
to violate subsection (a)(1) by causing serious physical injury as Arkansas defines and
interprets that term, then such physical force unquestionably meets the definition of
"violent force" set forth in Johnson; that force must necessarily have been capable of
causing physical pain or injury to another person.
The question, then, is whether it is possible to inflict serious physical injury by
means of a deadly weapon, as those terms are defined in the Arkansas Code, without

3

Although we are not bound by Arkansas state courts' definition of "physical
force" as that term is used in the Guidelines, we are bound by their interpretation of
what § 5-13-201(a)(1) requires. Johnson, 559 U.S. at 138.
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employing physical force. We conclude it is not. As the Supreme Court has
explained, the term physical force "plainly refers to force exerted by and through
concrete bodies." Johnson, 559 U.S. at 138. The Arkansas Code's definition of
"deadly weapon" describes just such a physical instrumentality. Ark. Code Ann. § 51-102(4). This result is demanded by both common sense and our precedent. See
United States v. Rice, 813 F.3d 704, 706 (8th Cir. 2016) (holding Arkansas's statute
for second-degree battery prohibiting "intentionally or knowingly . . . caus[ing]
physical injury" is a crime of violence under the Guidelines' force clause (alteration
in original) (quoting Ark. Code Ann. § 5-13-202)); Vinton, 631 F.3d at 485-86 (same
for a Missouri assault statute making it a crime if a person "[a]ttempts to cause or
knowingly causes physical injury to another person by means of a deadly weapon or
dangerous instrument" (quoting Mo. Rev. Stat. § 565.060.1(2)).4
Accordingly, we affirm.
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4

Thomas's reliance on the dissent in Rice is unavailing, not least because we
are bound by the court's opinion in that case.
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