                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2868
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                Aaron Michael Harris

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                 for the Western District of Missouri - Springfield
                                  ____________

                           Submitted: September 24, 2018
                              Filed: November 5, 2018
                                     [Published]
                                   ____________

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

PER CURIAM.

      Aaron Michael Harris pleaded guilty to one count of being a felon in
possession of a firearm. At sentencing, the district court concluded that Harris’s 2013
second-degree domestic assault conviction in Missouri state court was a crime of
violence under the United States Sentencing Guidelines, and it increased Harris’s
recommended Guidelines range as a result. See USSG § 2K2.1(a)(4)(A). It then
sentenced Harris to 46 months of imprisonment, at the bottom of the recommended
Guidelines range. On appeal, Harris renews his argument that his prior conviction
does not qualify as a crime of violence.

       The Guidelines’ force clause defines a crime of violence as any offense under
federal or state law punishable by imprisonment for more than one year that “has as
an element the use, attempted use, or threatened use of physical force against the
person of another.” USSG § 4B1.2(a)(1).1 The parties agree that to determine
whether Harris’s prior conviction meets this definition, we use a modified categorical
approach, examining the elements of Harris’s offense of conviction, rather than his
actual conduct. See Schneider, 2018 WL 4653433, at *1–2. If the statutory elements
of Harris’s offense of conviction do not require physical force, then the conviction
cannot satisfy the force clause. See id. The parties also agree that Harris was
convicted under Missouri Revised Statutes section 565.073.1(2). When Harris was
convicted in 2013, that section provided, “A person commits the crime of domestic
assault in the second degree if the act involves a family or household member . . . and
he or she . . . [r]ecklessly causes serious physical injury to such family or household
member.”

       We previously explained that a statute that criminalizes reckless driving cannot
satisfy the force clause, as reckless driving does not require physical force. See


      1
       A second clause, known as the enumerated-offenses clause, provides that
“murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex
offense, robbery, arson, extortion, or the use or unlawful possession of a firearm . . .
or explosive material” are all crimes of violence, too. USSG § 4B1.2(a)(2). The
government waived its argument that Harris’s prior conviction falls within the
enumerated-offenses clause, because it did not raise this argument before the district
court. Regardless, the government’s argument would fail. See United States v.
Schneider, — F.3d —, 2018 WL 4653433, at *5–6 (8th Cir. Sept. 28, 2018) (holding
that ordinary recklessness does not satisfy the mental-state requirement of generic
aggravated assault).

                                          -2-
Schneider, 2018 WL 4653433, at *3; United States v. Fields, 863 F.3d 1012, 1014–15
(8th Cir. 2017); United States v. Ossana, 638 F.3d 895, 903 (8th Cir. 2011). And we
previously determined that Missouri’s second-degree assault statute effective in 2003,
section 565.060.1(3), criminalizes reckless driving and is therefore not a crime of
violence under the force clause. Fields, 863 F.3d at 1015–16. Missouri’s second-
degree domestic assault statute contains identical language; the only difference
between the two statutes is the victim. Compare § 565.060.1(3) (2003) (“A person
commits the crime of assault in the second degree if he . . . [r]ecklessly causes serious
physical injury to another person . . . .”), with § 565.073.1(2) (2013) (“A person
commits the crime of domestic assault in the second degree if the act involves a
family or household member . . . and he or she . . . [r]ecklessly causes serious physical
injury to such family or household member . . . .”). Therefore, Missouri’s second-
degree domestic assault statute also criminalizes reckless driving and is not a crime
of violence under the Guidelines. Thus, we reverse and remand for resentencing
consistent with this opinion.
                       ______________________________




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