                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1850
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                Cody Kinzie Dittmar

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                    for the Northern District of Iowa - Dubuque
                                  ____________

                             Submitted: April 13, 2018
                               Filed: July 27, 2018
                                  ____________

Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
                         ____________

GRUENDER, Circuit Judge.

       Cody Dittmar pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). The district court found that he qualified for a
sentencing enhancement under the Armed Career Criminal Act (“ACCA”) on the
basis of two prior convictions for arson in Iowa and one prior conviction for burglary
in Wisconsin. See 18 U.S.C. § 924(e). On appeal, Dittmar argues that the district
court erred in designating him an armed career criminal. We review this designation
de novo. United States v. McFee, 842 F.3d 572, 574 (8th Cir. 2016).

       The ACCA imposes a sentencing enhancement when a defendant is convicted
of being a felon in possession of a firearm following three prior convictions for a
“violent felony.” 18 U.S.C. § 924(e)(1). The ACCA defines burglary and arson as
violent felonies. Id. § 924(e)(2)(B)(ii). However, only the usual or “generic”
versions of these crimes—that is, “the offense as commonly understood”—are valid
ACCA predicates. Mathis v. United States, 136 S. Ct. 2243, 2247-48 (2016)
(burglary); United States v. Whaley, 552 F.3d 904, 907 (8th Cir. 2009) (arson). Many
state statutes prohibit a broader range of conduct than the generic version of an
offense, and the sentencing court must determine whether the elements of a prior
conviction match the elements of the generic crime. Mathis, 136 S. Ct. at 2248.
Applying the “categorical approach,” the court may look only to the elements of the
crime of conviction—not to the particular facts of the case—to determine whether a
conviction was for the generic offense. Id.

       Dittmar had two prior convictions under Iowa’s arson statute, which defines
arson in two subsections. See Iowa Code § 712.1. The district court found that
subsection (1) matches the definition of generic arson, while the Government
conceded that subsection (2) does not. Where a statute contains alternative elements,
essentially creating multiple crimes, the statute is “divisible.” Descamps v. United
States, 570 U.S. 254, 261-62 (2013). In such cases, the court uses the “modified
categorical approach” to determine which of the multiple crimes in the divisible
statute provided the basis for the conviction. Id. The district court applied the
modified categorical approach and determined that Dittmar was convicted of generic
arson under subsection (1).

       The court made this determination on the basis of the minutes of evidence (also
referred to as the minutes of testimony). Under Iowa Rule of Criminal Procedure

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2.5(1), a prosecution can be commenced by filing “[a]n information charging a person
with an indictable offense.” Rule 2.5(3) further provides that the prosecutor “shall,
at the time of filing such information, also file the minutes of evidence of the
witnesses,” which lists “each witness upon whose expected testimony the information
is based, and a full and fair statement of the witness’ expected testimony.” The trial
court examines the information and the minutes of evidence to determine whether
there is probable cause to proceed. See Iowa R. Crim. P. 2.5(4), 2.11(6)(a); State v.
Shank, 296 N.W.2d 791, 792 (Iowa 1980).

      Dittmar argues that the district court improperly relied on the minutes of
evidence when it applied the modified categorical approach because the Supreme
Court allows “only a restricted look beyond the record of conviction” to “records of
the convicting court approaching the certainty of the record of conviction in a generic
crime State.” Shepard v. United States, 544 U.S. 13, 23 (2005). The sentencing court
may look “to the terms of a 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.” Id. at 26.

       Thus, we must determine whether the minutes of evidence are a charging
document or “some comparable judicial record” falling within Shepard’s list of
permissible documents. Id. Here, though the minutes of evidence are required to be
filed with the information, the Iowa Rules of Criminal Procedure treat the minutes as
a distinct document and state that the “prosecuting attorney shall, at the time of filing
such information, also file the minutes of evidence.” See Iowa R. Crim. P. 2.5(3)
(emphasis added). While this is not dispositive, Shepard also held that a sentencing
court could not consider “police reports or complaint applications,” even where “the
underlying purpose would be . . . to determine the nature of the offense of which [the
defendant] was convicted, rather than to determine what he actually did.” 544 U.S.
at 16, 21 (alterations omitted). Moreover, Shepard stated that a court could look only

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to a written plea agreement or plea colloquy “in which the factual basis for the plea
was confirmed by the defendant.” Id. at 26. Only these records “approach[] the
certainty of the record of conviction in a generic crime State.” Id. at 23.

       These factors lead us to conclude that the minutes of evidence are not
permissible Shepard documents if the defendant has not confirmed their accuracy in
a plea agreement or during plea colloquy. In this case, the minutes consist of a
narrative listing expected witnesses and detailing their anticipated testimony.
According to the record, Dittmar did not specifically confirm the minutes when he
pleaded guilty. This fact distinguishes the cases cited by the Government involving
defendants who expressly admitted that the minutes were accurate during plea
colloquy. See, e.g., United States v. Hunter, 505 F.3d 829, 831 (8th Cir. 2007). As
noted, moreover, the purpose of the minutes is to allow the trial judge to ascertain
whether there is probable cause to proceed. They thus resemble a complaint
application or police report, which are not permissible Shepard documents. See
United States v. Donnell, 661 F.3d 890, 894 (4th Cir. 2011) (“The police reports and
complaint applications at issue in Shepard are similar to the statement of probable
cause at issue here: Both are used to make an assessment of probable cause and
depart from the certainty of the record of conviction.”). These considerations tip the
scale in Dittmar’s favor.

     In sum, we hold that the Iowa minutes of evidence are not permissible Shepard
documents if the defendant has not confirmed their accuracy. Thus, the district court
improperly used them to apply the modified categorical approach to determine
whether Dittmar had the three necessary predicate convictions under the ACCA.
Consequently, we vacate Dittmar’s sentence and remand for resentencing.
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