                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1174
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                 Scott Wayne Pitts

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                            Submitted: March 12, 2018
                               Filed: June 29, 2018
                                  [Unpublished]
                                  ____________

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

PER CURIAM.

      In December 2013, Scott Pitts was sentenced to 30 months imprisonment for
“threat[ening] to injure the person of another.” 18 U.S.C. § 875(c). He served his
time and was discharged on supervised release in April 2015. A little over one year
later, the district court1 issued a summons after receiving information that Pitts had
violated two mandatory conditions of his supervised release: one prohibiting him
from using controlled substances and another barring him from violating any federal,
state, or local law.

       A hearing was held, at which Pitts admitted the controlled-substances violation
but denied violating any other laws. The government countered with the testimony
of Pitts’s ex-girlfriend, Alexa Baker. Baker testified at length about how Pitts had
been threatening and harassing her via phone calls and text messages since his release
from prison. In summary, she testified that Pitts threatened to rape and kill both her
and her current boyfriend, and to rape her friend and kidnap that friend’s son. To
corroborate this testimony, the government introduced screenshots of a number of
these messages, and Pitts stipulated to their accuracy.2

       At the conclusion of this hearing, the court found that the government had
established, by the required preponderance of the evidence, that Pitts violated Ark.
Code Ann. § 5-13-301(a)(1)(A). Under that statute, “[a] person commits the offense
of terroristic threatening in the first degree if . . . [w]ith the purpose of terrorizing
another person, the person threatens to cause death or serious physical injury or
substantial property damage to another person.” Id. After hearing argument from
both parties on the issue, the court found that this qualified as a “crime of violence”
under United States Sentencing Guidelines (USSG) §§ 7B1.1(a)(1) and 4B1.2(a). It
therefore concluded Pitts committed a class A violation of his supervised release.


      1
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
      2
       The government also called Pitts’s probation officer, David Baker, to the
stand. In short, Officer Baker further corroborated the above testimony and asserted
that the copied text messages were the reason that he petitioned the court for a
summons, which set in motion the current events.

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Rather than immediately revoking Pitts’s supervised release, the court imposed some
additional conditions on Pitts’s supervision—including a condition that he was to
have no contact whatsoever with Alexa Baker—and gave Pitts a four-month period
to prove that he could conform his conduct to the new conditions. Pitts failed. Prior
to the end of that period, he again sent threatening messages to Baker. The court held
another revocation hearing and ultimately sentenced Pitts to 14 months imprisonment.

       We review the district court’s imposition of a revocation sentence for abuse of
discretion, first questioning whether the court committed procedural error and then
ensuring the sentence was substantively reasonable. See United States v. Richey, 758
F.3d 999, 1001 (8th Cir. 2014). As defined in Gall v. United States, procedural error
includes “failing to calculate (or improperly calculating) the Guidelines range.” 552
U.S. 38, 51 (2007).

       On appeal, Pitts’s lone argument is that the district court procedurally erred by
improperly calculating his guideline range because his violation of Ark. Code Ann.
§ 5-13-301(a)(1)(A) does not constitute a “crime of violence” under the applicable
sentencing guideline. More specifically, he asserts that whether a prior act qualifies
as a “crime of violence” under USSG § 7B1.1(a)(1) is determined by using the
categorical approach. See United States v. Swopes, 886 F.3d 668, 670 (8th Cir. 2018)
(en banc) (“Under the categorical approach that governs analysis of the [Armed
Career Criminal Act (ACCA)], we focus on the elements of the state statute and
consider whether a violation necessarily satisfies the federal definition of violent
felony.”). Applying that approach, he first posits that the Arkansas statute is
indivisible and overbroad: because it criminalizes threats to damage a person’s
property, he claims the statute does not necessarily require the threat or use of force
against the person of another. See United States v. Kinney, 888 F.3d 360, 365 (8th
Cir. 2018) (holding conviction of an overbroad and indivisible state statute could not
serve as a predicate offense under the ACCA). Even assuming the statute is divisible,
Pitts next contends that it does not require enough force to meet the definition of

                                          -3-
“violent force” under federal law. See Johnson v. United States, 559 U.S. 133, 140
(2010) (“[I]n the context of a statutory definition of ‘violent felony,’ the phrase
‘physical force’ means violent force—that is, force capable of causing physical pain
or injury to another person.”).

        Grade A probation violations are, inter alia, those in which the offender is
charged with “conduct constituting . . . a federal, state, or local offense punishable by
a term of imprisonment exceeding one year that . . . is a crime of violence.” USSG
§ 7B1.1(a)(1). “The term ‘crime of violence’ means any offense under federal or state
law . . . 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). Importantly, unlike the
categorical approach required in assessing cases under the ACCA, “the grade of the
violation is to be based on the defendant’s actual conduct,” rather than by looking
only at the statutory definition. Id. § 7B1.1, comment. (n.1); see United States v.
Schwab, 85 F.3d 326, 327 (8th Cir. 1996) (“We conclude that the district court
properly looked to Schwab’s actual conduct in determining the grade of his
supervised release violation, rather than the crime to which he pleaded guilty.”).

       Because of this application note, Pitts’s argument misses the mark. Although
he argues at length that we should apply the categorical approach, Pitts neither
mentions Schwab nor attempts to explain why it is no longer binding. Our precedent
has stayed loyal to the application note in recent years, albeit in a slightly different
context. See United States v. Mendoza, 782 F.3d 1046, 1048 (8th Cir. 2015) (per
curiam) (“The grade of violation does not depend upon the conduct that is the subject
of criminal charges but rather is to be based on the defendant’s actual conduct. Thus,
the fact that Texas authorities charged Mendoza with possession of marijuana does
not preclude a finding that he possessed the marijuana with intent to distribute and
thus committed a Grade A controlled substance offense violation.” (internal citation
and quotation marks omitted)); United States v. Ceballos-Santa Cruz, 756 F.3d 635,
637 (8th Cir. 2014) (per curiam). And our sister circuits have applied it with equal

                                            -4-
force to nearly identical arguments. See, e.g., United States v. Golden, 843 F.3d
1162, 1166 (7th Cir. 2016) (“Critically, Golden’s argument assumes that the
categorical approach applies—i.e., that we must examine the elements of the generic
aggravated-battery offense without regard to Golden’s actual conduct. But that
approach is squarely foreclosed both by the Guidelines themselves and by our case
law.”). As a result, we remain true to it today.

       The district court found, and Pitts does not contest on appeal, that Pitts had
violated Ark. Code Ann. § 5-13-301(a)(1)(A). The conduct underlying this
finding—which is likewise not disputed by Pitts—involved threatening to rape and
kill Baker and her friend. This conduct clearly involves “the use, attempted use, or
threatened use of physical force against the person of another.” As such, the district
court committed no procedural error.

      For the reasons above, we affirm Pitts’s sentence.
                      ______________________________




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