                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1174
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                               Lashawn Deron Harris

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

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

                           Submitted: January 14, 2019
                            Filed: February 21, 2020
                                 ____________

Before BENTON, MELLOY, and KELLY, Circuit Judges.
                          ____________

MELLOY, Circuit Judge.

       Lashawn Deron Harris pleaded guilty to distributing methamphetamine. The
district court determined Harris qualified as a career offender pursuant to U.S.S.G.
§ 4B1.1(a) because he had two prior convictions for “crimes of violence”: Arkansas
Code § 5–13–310 (2002) (Terroristic Act) and Arkansas Code § 5–13–202(a) (2006)
(Second Degree Battery). We reverse.
                                           I.

       Harris does not challenge his conviction. The career-offender determination
resulted in an adjusted offense level of thirty one, a criminal history category VI, and
an advisory Guidelines range of 188–235 months. Without application of the career-
offender Guidelines, his advisory range would have been 87–108 months. The
district court imposed a sentence of 240 months, identifying the sentence as an
upward variance. The court cited concerns about community safety and evidence
concerning firearm-related incidents for which Harris either was not charged or was
charged but not prosecuted.

      Harris appeals, challenging the career-offender determinations. He also
challenges his ultimate sentence as unreasonable and argues the district court
improperly departed upwardly without notice.

                                           II.

        We review the district court’s crime-of-violence determinations de novo.
See United States v. Bearden, 780 F.3d 887, 895 (8th Cir. 2015). “The term ‘crime
of violence’ means any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that (1) 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). In determining whether Harris’s convictions are for crimes of
violence, “we look, categorically, at the generic elements of the offense, not the facts
of [Harris’s] conviction.” United States v. Doyal, 894 F.3d 974, 975 (8th Cir. 2018).
If the statute lists alternative methods of committing the offense, we must determine
whether the statute lists alternative elements that define separate crimes and must be
found by a jury or whether the statute merely “specifies various means of fulfilling
the crime’s elements.” Id. If the statute lists alternative elements, only some of
which qualify as crimes of violence, we describe the statute as overinclusive and

                                          -2-
divisible, and we apply the modified categorical approach. See Mathis v. United
States, 136 S. Ct. 2243, 2253 (2016). Under this approach, we look at a limited body
of qualifying materials for the narrow purpose of determining which set of elements
were at issue in the prior conviction. See Shepard v. United States, 544 U.S. 13, 26
(2005) (identifying qualifying materials). When a statute merely lists alternative
means, however, and where at least one of those means does not qualify as a crime
of violence, the statute is overinclusive but non-divisible. A prior conviction for a
non-divisible but overinclusive offense is not a crime of violence. Mathis, 136 S. Ct.
at 2256 (for such a statute, “the court has no call to decide which of the statutory
alternatives was at issue in the earlier prosecution”).

      At the time Harris committed a terroristic act, Arkansas defined the crime as
follows:

      (a)    For the purposes of this section, a person commits a terroristic act
             when, while not in the commission of a lawful act:
             (1) He shoots at or in any manner projects an object with the
                   purpose to cause injury to persons or property at a
                   conveyance which is being operated or which is occupied
                   by passengers; or
             (2) He shoots with the purpose to cause injury to persons or
                   property at an occupiable structure.
      (b)    (1) Any person who shall commit a terroristic act as defined in
                   subsection (a) of this section shall be deemed guilty of a
                   Class B felony.
             (2) Any person who shall commit a terroristic act as defined in
                   subsection (a) of this section shall be deemed guilty of a
                   Class Y felony if the person, with the purpose of causing
                   physical injury to another person, causes serious physical
                   injury or death to any person.

Ark. Code Ann. § 5-13-310 (2002).



                                          -3-
       Harris argues that his Class B felony conviction for committing a terroristic act
under Ark. Code Ann. § 5-13-310(a), (b)(1) (2002) is not a crime of violence because
it does not have “as an element the use, attempted use, or threatened use of physical
force against the person of another” as required by U.S.S.G. § 4B1.2(a)(1). To be
convicted under this statute, the defendant must act “with the purpose to cause injury
to persons or property.” Ark. Code Ann. § 5-13-310(a)(1), (a)(2). Harris asserts that
because this can be satisfied with a purpose to injure property, rather than a purpose
to injure persons, the offense does not categorically have 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)(1) (emphasis added).

       “When analyzing which words or phrases of a statute form the elements of a
crime, courts may look to the statute of prior conviction, state court decisions, and,
as a last resort, ‘the record of a prior conviction itself.’” United States v. McMillan,
863 F.3d 1053, 1057 (8th Cir. 2017) (quoting Mathis, 136 S. Ct. at 2256). The
language of the Class B felony’s mens rea requirement, standing alone, is
inconclusive. When considered in context of the potential punishment for the
offense, the statutory language suggests the mens rea alternatives are means rather
than elements. The Class B felony carries a uniform punishment of 5 to 20 years of
imprisonment regardless of whether it is committed with a purpose to injure persons
or a purpose to injure property. See Ark. Code Ann. § 5-4-401(a)(3) (2002);
McMillan, 863 F.3d at 1057 (“The text of [a] statute ‘does not provide helpful
guidance’ as to whether the phrase ‘person or property’ lists alternative means or
alternative elements [where] ‘there is . . . a uniform punishment for commission of’
[the offense].” (quoting United States v. McArthur, 850 F.3d 925, 938 (8th Cir.
2017))); see also United States v. Coleman, 918 F.3d 592, 594 (8th Cir. 2019) (“If
statutory alternatives carry different punishments, then . . . they must be elements.”
(alteration in original) (quoting Mathis, 136 S. Ct. at 2256)).




                                          -4-
       Arkansas case law, too, suggests that the Class B felony’s mens rea
requirement is not divisible. See McMillan, 863 F.3d at 1057 (we may look to state
court decisions in “analyzing which words or phrases of a statute form the elements
of a crime”). There appears to be no state court decision directly on point. But
Arkansas courts generally discuss the “persons or property” phrase without
distinguishing between the two components.1 The failure to specify whether the jury
must find that the defendant acted with “the purpose of causing injury to another
person or other persons” or “the purpose of causing damage to property” suggests that
these are alternative means of satisfying a single mens rea element rather than
separate elements of different crimes. See Mathis, 136 S. Ct. at 2248 (noting that
elements “are what the jury must find beyond a reasonable doubt to convict the
defendant”); Descamps v. United States, 570 U.S. 254, 272 (2013) (“A prosecutor
charging a violation of a divisible statute must generally select the relevant element
from its list of alternatives.”).

      1
        See, e.g., Stephenson v. State, 282 S.W.3d 772, 776 (Ark. 2008) (“[A] person
commits a terroristic act if, while not in the commission of a lawful act, and with the
purpose of causing injury to persons or property, he shoots at a vehicle that is being
operated or that is occupied by another person.”); Ealy v. State, 511 S.W.3d 355, 357
(Ark. Ct. App. 2017) (“The plain language of the statute provides that the necessary
intent, or goal of the action, is the purpose to cause injury to another person or
damage to property . . . .”); Starling v. State, 468 S.W.3d 294, 296 (Ark. Ct. App.
2015) (“A person commits a terroristic act if, while not in the commission of a lawful
act, the person: shoots at or in any manner projects an object at a conveyance which
is being operated or which is occupied by another person with the purpose to cause
injury to another person or damage to property.”); Butler v. State, 371 S.W.3d 699,
702 (Ark. Ct. App. 2009) (“[A] person commits a terroristic act if, while not in the
commission of a lawful act, the person shoots at or in any manner projects an object
with the purpose to cause injury to another person or damage to property at a
conveyance that is being operated or that is occupied by another person.”); Johnson
v. State, 55 S.W.3d 298, 301 (Ark. Ct. App. 2001) (“A person commits a terroristic
act if he shoots, with the purpose to cause injury to persons or property, at a
conveyance which is being operated or occupied by passengers.”).


                                         -5-
       Model jury instructions reinforce this interpretation. See McMillan, 863 F.3d
at 1057 (“We may use a state’s model jury instructions to ‘reinforce’ our
interpretation of the means or elements inquiry.” (citation omitted)); See Ark. Model
Jury Instructions–Criminal (AMCI 2d 1312) (2002) (listing persons and property
together without parentheses, brackets, or options for the jury or the court to
distinguish between the alternatives). The government argues the opposite, asserting
that Arkansas’s jury instructions show that the Class B felony contains elements
rather than means. The government, however, cites to current jury instructions that
are applicable to a later version of the Arkansas terroristic act statute. The
instructions applicable to Harris’s actual 2002 offense, in contrast, suggest that injury
to persons and injury to property are alternative means rather than elements.

       Further, we note that a terroristic act can also qualify as a Class Y felony,
carrying a punishment of 10 to 40 years of imprisonment, if the defendant acts “with
the purpose of causing physical injury to another person” and “causes serious
physical injury or death to any person.” Ark. Code Ann. §§ 5-4-401(a)(1) & 5-13-
310(b)(2) (2002) (emphasis added). The Arkansas Criminal Code expressly defines
“physical injury” and “serious physical injury.”2 The Arkansas Criminal Code does
not define the simple term “injury,” as used in the Class B felony. Ark. Code Ann.
§ 5-13-310(a)(1) & (a)(2). The use of “injury” in the Class B felony’s mens rea and
“physical injury” in the Class Y felony’s mens rea suggests that the requirements are
different. The most natural interpretation is that “injury” includes both physical and


      2
       “Physical injury” means the: “(A) Impairment of physical condition;
(B) Infliction of substantial pain; or (C) Infliction of bruising, swelling, or visible
marks associated with physical trauma.” Ark. Code Ann. § 5-1-102(14) (2002).
“Serious physical injury” means “physical injury that creates a substantial risk of
death or that causes protracted disfigurement, protracted impairment of health, or loss
or protracted impairment of the function of any bodily member or organ . . . .” Id.
§ 5-1-102(19).

                                          -6-
non-physical injury. The Class Y felony provision, therefore, takes a subset of Class
B felonies and subjects that subset to greater punishment only if the mens rea is
further limited to a purpose to cause “physical injury to another person” and if
“serious physical injury” or “death” actually results. Although the Class B felony’s
intent to cause “injury to persons” and the Class Y felony’s intent to cause “physical
injury” may in many instances overlap, they do not necessarily overlap in every case.

        Even if the phrase “injury to persons” in the Class B felony could be deemed
synonymous with the phrase “physical injury to another person” in the Class Y
felony, the difference in punishments between the Class B and Class Y felonies does
not support the conclusion that the different alternatives wholly contained in the Class
B felony, “persons” and “property,” are elements rather than means. It is true that,
“[i]f statutory alternatives carry different punishments, then . . . they must be
elements.” Mathis, 136 S. Ct. at 2256. But the “statutory alternatives” that carry
different punishments here are the Class B and Class Y felonies, not the different
mens rea alternatives of the Class B felony for which Harris was convicted. The
Class Y felony is a distinct crime. The fact that the Class Y felony requires a
“purpose to cause physical injury to another person” says nothing about whether the
purpose to cause “injury to persons” and the purpose to cause “injury to property” are
elements or means of the separate crime defined as a Class B felony. A statute may
list different mental states as “interchangeable means of satisfying a single mens rea
element,” Mathis, 136 S. Ct. at 2253 n.3, and that is what the Class B felony does
here.

       Finally, the Shepard documents for Harris’s conviction also support the
conclusion that the Class B felony’s mens rea requirement is indivisible. See
McMillan, 863 F.3d at 1057 (we may consider, “as a last resort, the record of a prior
conviction itself” in analyzing which words or phrases of a statute form the elements
of a crime). The information alleges that Harris did, “with the intent to cause injury,
shoot at a vehicle while the victim . . . was standing next to it, said vehicle belonging

                                          -7-
to the victim.” The object of the defendant’s intent is not identified. Instead, the
information alleges only an “intent to cause injury,” without specifying whether the
intent was to injure “persons” or “property.” Use of the word “victim” is not
dispositive. A person could equally be considered a “victim” of a crime committed
against her property (i.e., her vehicle) as against her person.

       Ultimately, the statutory language is inconclusive, state-court decisions “fail[]
to provide clear answers,” and the record materials do not “speak plainly.” Mathis,
136 S. Ct. at 2256–57. At each turn, the available materials suggest that the “injury
to persons” and “injury to property” components of the Class B felony’s mens rea
requirement are different means of satisfying a single mens rea element and not
alternative elements defining different crimes. Therefore, the categorical approach’s
“demand for certainty” has not been met. Id. (citation omitted).3

       We note that our court has reached a different outcome as to a similarly titled,
but differently structured, Arkansas statute. In United States v. Myers, we held the
Arkansas felony offense of terroristic threatening, Ark. Code Ann. § 5-13-
301(a)(1)(A) (1995), qualified as a crime of violence. 928 F.3d 763 (8th Cir. 2019),
petition for cert. filed, (U.S. Nov. 22, 2019) (19-6720). There, the relevant statutory
language provided:

      (a)(1) A person commits the offense of terroristic threatening in the first
      degree if:



      3
       Even if we assume the statutory subsection at issue is divisible and apply the
modified categorical approach, the information filed against Harris does not tell us
which alternative mens rea formed the basis of his charge and conviction. As noted,
both property and a person are named in the information, but Harris was charged with
having the “intent to cause injury” generally, and not with the “intent to cause injury”
specific to either a person or property.

                                          -8-
             (A) With the purpose of terrorizing another person, the person
             threatens to cause death or serious physical injury or substantial
             property damage to another person . . .

The mens rea in Myers was focused and devoid of alternatives: “the purpose of
terrorizing another person.” Id. As such, the alternatives under examination were the
different objects of the threats: death, serious physical injury, or substantial property
damage. Citing Arkansas cases where charges and jury instructions omitted reference
to property damage, we concluded the alternatives were elements rather than means.
Id. at 766. In reaching that conclusion, we relied on the instruction from Mathis that,
when state courts have clarified the means–element distinction, the federal court’s
task is simply to apply that case law. See id. (stating that where “state court
decision[s] definitively answer[] the question,” we “need only follow what [they] say”
(quoting Mathis, 136 U.S. at 2256)). Here, because such conclusive guidance is
lacking and because the statutes are dissimilar, Myers simply does not apply.

       Because resentencing is required and additional questions may arise, we
address Harris’s other “crime of violence” argument but need not address the overall
reasonableness of his initial sentence or his separate argument concerning notice.
Regarding Harris’s conviction for second degree battery under Arkansas Code
Annotated § 5–13–202(a) (2006), we previously determined the statute is
overinclusive and divisible in that it criminalizes conduct with mens rea alternatives,
one of which is mere recklessness and does not satisfy the definition for a crime of
violence. See United States v. Rice, 813 F.3d 704, 705–06 (8th Cir. 2016); United
States v. Dawn, 685 F.3d 790, 795–96 (8th Cir. 2012), abrogated on other grounds
by Lofton v. United States, 920 F.3d 572, 575 (8th Cir. 2019). Applying the modified
categorical approach, Harris argues the Shepard materials surrounding his 2006
conviction are inconclusive. We reject his argument because the charging document
for that offense indicates he was charged with the “purpose of causing serious injury”
and “did . . . purposely cause serious physical injury.”


                                          -9-
       The district court did not err in finding Harris’s conviction for second degree
battery qualified as a crime of violence.

      We reverse the judgment of the district court.
                      ______________________________




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