                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 16-1874
                          ___________________________

                               United States of America

                          lllllllllllllllllllll Plaintiff - Appellee

                                             v.

                                 Arthur Lee Starks, Jr.

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                  for the Eastern District of Arkansas - Little Rock
                                   ____________

                           Submitted: December 12, 2016
                             Filed: December 28, 2016
                                   [Unpublished]
                                   ____________

Before RILEY, Chief Judge, WOLLMAN and SMITH, Circuit Judges.
                             ____________

PER CURIAM.

       Arthur Lee Starks, Jr. pleaded guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). He appeals from his sentence of 80 months’
imprisonment, arguing that the district court1 erroneously calculated his offense level
under § 2K2.1(a)(4)(A) of the United States Sentencing Guidelines Manual (U.S.S.G.
or Guidelines) because his underlying Arkansas conviction for domestic battering in
the third degree was not a “crime of violence” within the meaning of that section. He
also argues that his sentence is substantively unreasonable because the district court
considered an improper factor in varying upward from the Guidelines range. We
affirm.

       The presentence report (PSR) calculated Starks’s advisory sentencing range
under the 2014 version of the Guidelines. The PSR determined that Starks had a total
criminal history score of 10 and thus that his criminal history category was V. The
PSR also determined that the base offense level was 20 under
U.S.S.G. § 2K2.1(a)(4)(A), because Starks committed the felon-in-possession offense
after sustaining a felony conviction for a crime of violence, namely, a 2008 Arkansas
conviction for domestic battering in the third degree, second offense, in violation of
Arkansas Code Annotated § 5-26-305. The PSR recommended a 2-level reduction
for acceptance of responsibility. The district court adopted the PSR and granted a 3-
level reduction for acceptance of responsibility. Based on a total offense level of 17
and a criminal history category of V, the district court calculated an advisory
sentencing range of 46 to 57 months. The district court varied upward from the
Guidelines range and imposed a sentence of 80 months, giving the following
explanation:

      The justification for my upward variance from the guideline range is Mr.
      Starks’ consistent and violent criminal history. It is to protect the public
      from the situation that now Mr. Starks is in possession of a firearm
      which, in the Court’s opinion, will escalate that future danger to the
      public as well as to his family. It’s also to address his needs for his
      alcohol problems and perhaps his mental health needs.

      1
       The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.

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       Starks first argues that the district court committed procedural error in
calculating his Guidelines range because Arkansas Code Annotated § 5-26-305 does
not qualify as a crime of violence under U.S.S.G. § 2K2.1(a)(4)(A). “We review de
novo a district court’s interpretation and application of the guidelines.” United States
v. Rice, 813 F.3d 704, 705 (8th Cir. 2016). As relevant here, the Guidelines define
a “crime of violence” as an offense that is punishable by more than one year’s
imprisonment and that “has as an element the use, attempted use, or threatened use
of physical force against the person of another.” U.S.S.G. § 4B1.2(a).2 “To
determine whether a prior conviction was for a crime of violence, ‘we apply a
categorical approach, looking to the elements of the offense as defined in the . . .
statute of conviction rather than to the facts underlying the defendant’s prior
conviction.’” Rice, 813 F.3d at 705 (quoting United States v. Dawn, 685 F.3d 790,
794 (8th Cir. 2012)). “If the statute of conviction is divisible in that it encompasses
multiple crimes, some of which are crimes of violence and some of which are not, we
apply a modified categorical approach to ‘look at the charging document, plea
colloquy, and comparable judicial records’ for determining which part of the statute
the defendant violated.” Id. (quoting Dawn, 685 F.3d at 794-95). “We then
determine whether a violation of that statutory subpart is a crime of violence.” Id.

     The district court did not err in determining that Starks’s 2008 third-degree
domestic battering conviction was for a crime of violence. At the time of conviction,
Arkansas Code Annotated § 5-26-305 provided:

      (a) A person commits domestic battering in the third degree if:


      2
       This definition is the “force clause” of the “crime of violence” definition.
U.S.S.G. § 4B1.2(a) also defines as a crime of violence any offense punishable by
more than one year’s imprisonment that either qualifies as one of certain enumerated
offenses or falls within the “residual clause.” Because we conclude that the
underlying Arkansas conviction in this case falls within the force clause, we do not
consider the residual clause.

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             (1) With the purpose of causing physical injury to a family or
             household member, the person causes physical injury to a family
             or household member;
             (2) The person recklessly causes physical injury to a family or
             household member;
             (3) The person negligently causes physical injury to a family or
             household member by means of a deadly weapon; or
             (4) The person purposely causes stupor, unconsciousness, or
             physical or mental impairment or injury to a family or household
             member by administering to the family or household member,
             without the family or household member’s consent, any drug or
             other substance.


Because this statute is divisible we apply the modified categorical approach. See
United States v. Eason, 829 F.3d 633, 642 (8th Cir. 2016) (determining that Arkansas
Code Annotated § 5-26-305 is divisible in a case under the Armed Career Criminal
Act). The felony information from Starks’s underlying conviction alleged that Starks
“with the purpose of causing physical injury to a family or household member, did
cause physical injury to [the victim], a family or household member.” Reviewing the
felony information at the sentencing hearing, the district court determined that “Mr.
Starks was being charged under[] Arkansas Code Annotated 5-26-305, and it appears
further from the information that it was under paragraph (a)(1).” The record thus
establishes that Starks was convicted of violating subsection (a)(1) of § 5-26-305.
The only remaining question, then, is whether subsection (a)(1) “has as an element
the use, attempted use, or threatened use of physical force against the person of
another.”


      Our precedent establishes that subsection (a)(1) falls within the force clause of
U.S.S.G. § 4B1.2(a). In Rice, we held that a subsection of the Arkansas second-
degree battery statute was a crime of violence. That subsection provided that a person


                                         -4-
commits second-degree battery if the person “intentionally or knowingly, without
legal justification, causes physical injury to one he knows to be” a member of certain
enumerated groups. Rice, 813 F.3d at 705. We reasoned that the defendant’s
conviction under this statute “includes the use of violent force as an element ‘since
it is impossible to cause bodily injury without using force “capable of” producing that
result.’” Id. at 706 (quoting United States v. Castleman, 134 S. Ct. 1405, 1416-17
(2014) (Scalia, J., concurring)). And in United States v. Vinton, we held that a
subsection of a Missouri assault statute “ha[d] as an element the use, attempted use,
or threatened use of physical force against the person of another” because the
subsection covered cases in which a person “[a]ttempts to cause or knowingly causes
physical injury to another person by means of a deadly weapon or dangerous
instrument.” 631 F.3d 476, 485-86 (8th Cir. 2011). Starks argues that physical force
is not an element of § 5-26-305(a)(1) because it is possible to cause bodily injury
intentionally without using physical force, and that other circuit courts that have
considered the issue have come to that conclusion. But we considered these
arguments in Rice, and still held that the offense in question was a crime of violence.
See 813 F.3d at 706. Accordingly, under our precedent, Arkansas Code Annotated
§ 5-26-305(a)(1) “has as an element the use, attempted use, or threatened use of
physical force against the person of another” and is thus a crime of violence under
U.S.S.G. § 4B1.2(a).


      We see no reason to depart from our precedent in this case. “Although one
panel of this court ordinarily cannot overrule another panel, this rule does not apply
when the earlier panel decision is cast into doubt by a decision of the Supreme
Court.” United States v. Williams, 537 F.3d 969, 975 (8th Cir. 2008) (emphasis
removed) (quoting Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 838 (8th Cir.
1997)). Starks contends that Mathis v. United States, 136 S. Ct. 2243 (2016),
supports his argument that Arkansas’s domestic battering statute is broader than the
“crime of violence” definition set forth in U.S.S.G. § 4B1.2(a). In Mathis, the
Supreme Court held that a defendant’s prior convictions under an Iowa burglary

                                         -5-
statute were not “crimes of violence” under the Armed Career Criminal Act because
the Iowa statute was broader than the generic offense of burglary in the Armed Career
Criminal Act. The Court emphasized that in determining whether a prior conviction
was for a “crime of violence,” courts must look to the elements of the offense, not the
factual means by which an offense may be committed, even if the statute of
conviction lists alternative factual means. The Iowa burglary statute reached “any
building, structure, [or] land, water, or air vehicle,” but the generic offense of
burglary covers only a “building or other structure.” Id. at 2250 (emphasis removed).
The Court concluded that the locations listed in the Iowa statute “are not alternative
elements, going toward the creation of separate crimes,” but instead “they lay out
alternative ways of satisfying a single locational element.” Id. The Court based its
conclusion largely on a decision of the Iowa Supreme Court, but it also instructed that
“if state law fails to provide clear answers,” courts may look to the record materials,
such as “indictments, jury instructions, plea colloquies and plea agreements” to
determine whether the statute describes separate crimes or merely different ways of
committing the same crime. Id. at 2256-57, 2257 n.7.


       Mathis does not affect this case, because § 5-26-305 sets forth “alternative
elements,” not merely “alternative ways of satisfying a single [] element.” Id. at
2250. The statute clearly delineates alternative elements, and the judicial record
establishes that Starks was charged under subsection (a)(1). Accordingly, application
of the modified categorical approach was proper, and, applying that approach as
discussed above, a violation of subsection (a)(1) constitutes a crime of violence.


       Starks also argues that Voisine v. United States, 136 S. Ct. 2272 (2016),
supports his position that Arkansas Code Annotated § 5-26-305 does not have “as an
element the use, attempted use, or threatened use of physical force against the person
of another.” Starks points to an example used by the Court, in which it stated that
letting a door slip while trying to hold it is not the “use” of force, even though the


                                         -6-
result is that the door catches someone’s fingers, but slamming a door with someone
following close behind is the “use” of force, whether the door was slammed with the
certainty that someone’s fingers would be caught or with only the awareness that
catching someone’s fingers was very likely. Id. at 2279. But the Court offered this
example to support its holding that a “misdemeanor crime of domestic violence”
under 18 U.S.C. § 922(g)(9) includes an offense committed recklessly. See id.
(“Once again, the word ‘use’ does not exclude from § 922(g)(9)’s compass an act of
force carried out in conscious disregard of its substantial risk of causing harm.”).
Because Voisine concerned the mens rea required for a “use” of force, it does not
affect this case, in which subsection (a)(1) of § 5-26-305 requires the purpose of
causing injury to a family or household member.


        Starks also alleges that his sentence is substantively unreasonable because the
district court impermissibly based its upward variance on the need to address Starks’s
alcohol-treatment and mental-health needs, in violation of Tapia v. United States, 564
U.S. 319 (2011). Because Starks did not object on this basis before the district court,
we review for plain error, under which “the defendant must show: (1) an error; (2)
that is plain; and (3) that affects substantial rights.” United States v. Blackmon, 662
F.3d 981, 986 (8th Cir. 2011). The district court justified the sentence based on
Starks’s “consistent and violent criminal history,” as well as the need to protect his
family and the public from the danger he poses by possessing a firearm. The district
court then noted that its sentence was “also to address his needs for his alcohol
problems and perhaps his mental health needs.” We acknowledge that the district
court’s statement can be read as going beyond merely “discussing the opportunities
for rehabilitation within prison,” id. at 987 (quoting Tapia, 564 U.S. at 334), and we
are reminded that Tapia forecloses district courts from imposing or lengthening a
sentence to promote rehabilitation or facilitate a defendant’s participation in a
treatment program. Nevertheless, assuming that the district court erroneously
considered Starks’s needs for alcohol and mental-health treatment in imposing the
sentence, Starks has not shown that he would have received a different sentence

                                         -7-
absent such error. See id. at 987 (“[W]here the effect of the error on the result in the
district court is uncertain or indeterminate—where we would have to speculate—the
appellant has not met his burden of showing a reasonable probability that the result
would have been different but for the error.” (quoting United States v. Pirani, 406
F.3d 543, 553 (8th Cir. 2005) (en banc))); see also United States v. Pickar, 666 F.3d
1167, 1169-70 (8th Cir. 2012) (citing Blackmon and holding no plain error in part
because proper sentencing factors were dominant). Having failed to show that any
error affected his substantial rights, Starks has thus not shown plain error.


      The judgment is affirmed.
                          ___________________________




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