                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1709
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                     Antonio Mata

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                  ____________

                              Submitted: March 6, 2017
                               Filed: August 25, 2017
                                   ____________

Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.
                         ____________

SHEPHERD, Circuit Judge.

      Antonio Mata pled guilty to possessing with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii), and being
an armed career criminal in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(e)(1). In his plea agreement, Mata stipulated to three previous
convictions: (1) first-degree possession with intent to deliver a controlled substance
in Dallas County, Texas in 2001; (2) first-degree possession with intent to deliver a
controlled substance in Dallas County, Texas in 2001; and (3) third-degree criminal
sexual conduct with force or coercion in Rice County, Minnesota in 2004. As a
result, the district court1 applied the fifteen-year mandatory minimum sentence found
in 18 U.S.C. § 924(e)(1). Mata appeals, arguing that his 2004 Minnesota conviction
does not qualify as a predicate felony under the Armed Career Criminal Act (ACCA).
Exercising de novo review, see United States v. Irons, 849 F.3d 743, 746 (8th Cir.
2017), we affirm.

                                    I. Discussion

A.    ACCA Framework

       When an individual pleads guilty to, or is convicted of, violating § 922(g), the
ACCA imposes a fifteen-year mandatory minimum sentence if that individual “has
three previous convictions . . . for a violent felony or a serious drug offense.” 18
U.S.C. § 924(e)(1). Under the statute, “the term ‘violent felony’ means any crime
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. § 924(e)(2)(B)(i). “[T]he phrase ‘physical force’ means violent
force—that is, force capable of causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 140 (2010). Thus, in order for Mata’s
Minnesota conviction to qualify as a predicate felony, the statute under which he was
convicted must have as an element the use, attempted use, or threatened use of force
capable of causing physical pain or injury to another person. See id.

      Our determination of whether Mata’s conviction meets the statutory definition
begins with the categorical approach, under which we “look only to the fact of


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

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conviction and the statutory definition of the prior offense.” United States v.
Headbird, 832 F.3d 844, 846 (8th Cir. 2016) (internal quotation marks omitted). But
where “the statute criminalizes both conduct that does and does not qualify as a
violent felony and the statute is divisible, we apply the modified categorical approach
and may review certain judicial records to identify which section of the statute
supplied the basis for a defendant’s conviction.” Id. (internal quotation marks
omitted).

B.    Minn. Stat. § 609.344(1)(c) (2004)

       Mata pled guilty to a violation of Minnesota Statute section 609.344(1)(c).
This statute states: “A person who engages in sexual penetration with another person
is guilty of criminal sexual conduct in the third degree if . . . the actor uses force or
coercion to accomplish the penetration.” Minn. Stat. § 609.344(1)(c) (2004). We
conclude the statute is divisible. See Mathis v. United States, 136 S. Ct. 2243, 2249
(2016) (declaring a statute divisible because it “prohibited ‘the lawful entry or the
unlawful entry’ of a premises with intent to steal, so as to create two different
offenses, one more serious than the other”); Descamps v. United States, 133 S. Ct.
2276, 2281 (2013) (noting that a “divisible . . . statute sets out one or more elements
of the offense in the alternative—for example, stating that burglary involves entry
into a building or an automobile.”). The Minnesota Supreme Court has noted that
“[t]he plain language of the elements of the offense indicates that third-degree
criminal sexual conduct can be committed by coercion alone, force alone, or both
force and coercion.” State v. Leake, 699 N.W.2d 312, 323-24 (Minn. 2005); see
Mathis, 136 S. Ct. at 2248 (“‘Elements’ are the ‘constituent parts’ of a crime’s legal
definition . . . .”). In a prosecution under section 609.344(1)(c), the factfinder is
required to determine which of the three possibilities—force, coercion, or both—was
present because, under Minnesota law, the use of force constitutes a more serious
offense. See Minn. Stat. § 609.106(1)(a)(3) (stating that a violation of section
609.344 becomes a “heinous crime . . . if the offense was committed with force”);

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10 Minn. Practice Jury Instr. Guides—Criminal § 12.21 & cmt. (2015). Accordingly,
because Minnesota Statute section 609.344 “list[s] elements in the alternative, and
thereby define[s] multiple crimes,” it is a divisible statute. See Mathis, 136 S. Ct. at
2249. Because this offense can be committed by coercion rather than force, we will
assume that subsection (1)(c) is also over-inclusive.2

       We therefore apply the modified categorical approach to determine whether
Mata pled guilty to using force, coercion, or both to accomplish the offense. See
Headbird, 832 F.3d at 846. “Under that approach,” we may “look[] to a limited class
of documents (for example, the indictment, jury instructions, or plea agreement and
colloquy) to determine what crime, with what elements, a defendant was convicted
of.” Mathis, 136 S. Ct. at 2249. The record evidence in this case includes Mata’s
2014 plea agreement and the plea colloquy from the 2004 Minnesota state case. In
the transcript of the plea colloquy from the 2004 conviction, the following exchange
between Mata and the state court judge is recorded:

      The Court: First of all, when you had sex with her, she was saying no?
      The Defendant: Yes.


      2
        Though Mata makes no distinct argument that the coercion element in this
subsection could constitute a nonviolent felony, he broadly asserts that “when a
statute such as Minnesota’s sweeps non-violent conduct and violent conduct together,
the prior conviction cannot count as an ACCA predicate felony.” Appellant’s Br. 14.
Moreover, there are a limited number of possible outcomes: a statute can concern
violent conduct, nonviolent conduct, or a combination of the two. For the reasons
discussed infra, the statute clearly proscribes at least some conduct that comports
with the ACCA’s generic version of a violent felony. So we are left either with a
statute concerning only violent conduct or a mixture of nonviolent and violent
conduct. Given the lack of a distinct argument on whether the coercion prong of this
subsection meets the ACCA definition of a violent felony and our determination that
the issue has no bearing on this case, we leave that question for another day. See
United States v. Lopez-Zepeda, 466 F.3d 651, 654 (8th Cir. 2006).

                                          -4-
      The Court: She might have said yes or maybe earlier, but at that point
           she was saying, no, I don’t want to have sex with you?
      The Defendant: Um-hum.

      The Court: Secondly, the sex involved penetration. Your penis entered
           her vaginal area?
      The Defendant: Yes, your Honor.

      The Court: Okay. Third, you used your strength, your force to have the
           sex?
      The Defendant: Yes, your Honor.

      The Court: She was trying to push you off, say, no, get away, and you
           were stronger and could force yourself onto her; is that true?
      The Defendant: Yes.

R. at 23. Nowhere in this transcript does the court question Mata in a similar manner
regarding coercion. Thus, Mata pled guilty to using force to accomplish sexual
penetration.

      Our court has previously found that the use of force to accomplish sexual
penetration in violation of section 609.344(1)(c) satisfies the “crime of violence”
enhancement under U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)).3 See Lopez-Zepeda,
466 F.3d at 653-54. And, given “their nearly identical definitions, we construe
‘violent felony’ under 18 U.S.C. § 924(e)(2)(B)(ii) (the Armed Career Criminal Act)
and ‘crime of violence’ under the Guidelines as interchangeable, including the
corresponding force clauses and residual clauses.” United States v. Schaffer, 818
F.3d 796, 798 n.2 (8th Cir.) (internal quotation marks omitted), cert. denied, 137 S.
Ct. 410 (2016). Mata advances no argument for overruling or distinguishing Lopez-

      3
          Although this section has been renumbered, the critical language has remained
the same. See U.S.S.G. § 2L1.2, comment. (n.2) (“Crime of violence” means . . . any
. . . offense under federal, state, or local law that has as an element the use, attempted
use, or threatened use of physical force against the person of another.”).

                                           -5-
Zapata, so we are bound to follow the conclusions reached in that case. See Maxfield
v. Cintas Corp., No. 2, 487 F.3d 1132, 1135 (8th Cir. 2007).

      The enhancement was properly applied.4

                                    II. Conclusion

      Because Mata “has three previous convictions . . . for a violent felony or a
serious drug offense,” we affirm the district court’s application of the fifteen-year
mandatory minimum sentence found in 18 U.S.C. § 924(e)(1).




      4
        In a pro se submission, Mata also argues that the single-sentence rule
presented in U.S.S.G. § 4A1.2(a)(2) requires the conclusion that his two drug related
offenses in Texas count as a single offense for the purpose of calculating the number
of predicate felonies under 18 U.S.C. § 924(e)(1). We disagree. The statute itself
specifies that such offenses count separately when “committed on occasions different
from one another.” § 924(e)(1). Here, Mata sold narcotics to an undercover officer
on two occasions five days apart, so they are separate offenses under the ACCA. See
United States v. Long, 320 F.3d 795, 801-02 (8th Cir. 2003) (noting that “the ACCA
is triggered by the criminal episodes that underlie a defendant’s convictions,” and
holding that each of three separate deliveries “constitutes a ‘conviction’ of a serious
drug offense for ACCA purposes”).

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