                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2415
                        ___________________________

                             United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                              James Dwayne Myers

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

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

                          Submitted: February 16, 2018
                              Filed: July 23, 2018
                                ____________

Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

       James D. Myers pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced him as an armed



      1
      The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
career criminal to 188 months’ imprisonment. He appeals. Having jurisdiction under
28 U.S.C. § 1291, this court affirms.

       The Armed Career Criminal Act (ACCA) enhances sentences for those who
possess firearms after three convictions for a “violent felony or a serious drug
offense.” 18 U.S.C. § 924(e)(1). The district court sentenced Myers as an armed
career criminal based on one prior serious drug conviction and two prior violent
felonies under Arkansas law—first-degree terroristic threatening and second-degree
battery. Myers appeals, arguing neither one is a violent felony. This court reviews
de novo the determination that a conviction is a violent felony under the ACCA. See
United States v. Keith, 638 F.3d 851, 852 (8th Cir. 2011).

                                          I.

       Myers maintains his Arkansas first-degree terroristic threatening conviction is
not a violent felony under the ACCA. The parties agree Myers was convicted under
Arkansas Code Annotated § 5-13-301(a)(1)(A). At the time of his conviction, it said:

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

             (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; or

                                        ....

Ark. Code Ann. § 5-13-301(a)(1)(A) (1995). Myers argues this section is
“overbroad” because it “criminalizes the making of threats to cause ‘substantial
property damage’ in addition to threats ‘to cause death or serious physical injury,’”
and “does not . . . necessarily involve an element of physical force against the person
of another.”

                                         -2-
        A violent felony under the ACCA is “any crime punishable by imprisonment
for a term exceeding one year . . . that—(i) has as an element the use, attempted use,
or threatened use of physical force against the person of another.” 18 U.S.C. §
924(e)(2)(B). To determine whether a prior conviction is a violent felony, courts
apply a categorical approach, comparing “the elements of the crime of conviction .
. . with the elements of the generic crime.” Descamps v. United States, 570 U.S. 254,
257 (2013). If the elements criminalize a broader range of conduct than the generic
crime, the conviction is not a violent felony. Id. (“The prior conviction qualifies as
an ACCA predicate only if the statute’s elements are the same as, or narrower than,
those of the generic offense.”). However, “[i]f the statute of conviction defines more
than one crime by listing alternative elements,” this court applies the “modified
categorical approach, to determine which of the alternatives was the offense of
conviction.” United States v. Winston, 845 F.3d 876, 877 (8th Cir. 2017) (internal
quotation marks omitted).

       The parties disagree whether the categorical or modified categorical approach
applies. This depends on whether A.C.A. § 5-13-301(a)(1)(A) lists alternative
elements or means and is, therefore, divisible or indivisible. See Mathis v. United
States, 136 S. Ct. 2243, 2248 (2016) (“Distinguishing between elements and facts is
therefore central to ACCA’s operation.”). “‘Elements’ are the ‘constituent parts’ of
a crime’s legal definition—the things the ‘prosecution must prove to sustain a
conviction.’” Id., quoting Black’s Law Dictionary 634 (10th ed. 2014). “At a trial,
they are what the jury must find beyond a reasonable doubt to convict the defendant;
and at a plea hearing, they are what the defendant necessarily admits when he pleads
guilty.” Id. (internal citation omitted). Means are “[h]ow a given defendant actually
perpetrated the crime.” Id. at 2251. They “need neither be found by a jury nor
admitted by a defendant.” Id. at 2248.

                                         A.
     In United States v. Boaz, this court held § 5-13-301(a)(1)(A) defines separate
elements, is divisible, and requires the modified categorical approach. Boaz, 558

                                         -3-
F.3d 800, 807 (8th Cir. 2009) (“The underlying state statute defines two separate
offenses: threats of death or serious bodily injury and threats to property.”). See
Walker v. State, 389 S.W.3d 10, 15 (Ark. App. 2012) (“As charged and instructed to
the jury, the offense of first-degree terroristic threatening required the elements of
threatening to cause the death of the victim and the purpose of terrorizing the victim,
elements that are not necessary to prove aggravated robbery.”) (emphasis added).
Although Boaz was decided before Mathis, “the Supreme Court’s decision in Mathis
. . . did not address the ACCA’s force clause,” and, therefore, does not require
reconsideration of the otherwise controlling Boaz decision. See United States v.
Lamb, 847 F.3d 928, 930 (8th Cir. 2017), cert. denied, 138 S. Ct. 1438 (2018).
Under the modified categorical approach then, this court “looks to a limited class of
documents [from the record of conviction] to determine what crime, with what
elements, a defendant was convicted of.” Mathis, 136 S. Ct. at 2249. The court can
then determine if that conviction is a crime of violence. See id.

                                          B.

       Even if this court undertook a Mathis analysis, the same result would apply.
Mathis held that in determining whether a statute lists elements or means, courts look
to a number of sources. Id. at 2256-57. “[T]he statute on its face” or state court
decisions interpreting it “may resolve the issue.” Id. at 2256. A court also can look
to “a state’s model jury instructions to ‘reinforce’” its interpretation. United States
v. McMillan, 863 F.3d 1053, 1057 (8th Cir. 2017), citing Lamb, 847 F.3d at 932. See
Mathis, 136 S. Ct. at 2257. If none of these provides “clear answers,” the court may
“peek” at the records of conviction. Mathis, 136 S. Ct. at 2256.

       The text of the Arkansas statute “‘does not provide helpful guidance’” on
“whether the phrase ‘person or property’ lists alternative means or alternative
elements because ‘there is, for example, a uniform punishment for commission of’”
first-degree terroristic threatening. See McMillan, 863 F.3d at 1057, quoting United
States v. McArthur, 850 F.3d 925, 938 (8th Cir. 2017). The fact that the word “or”

                                         -4-
separates “serious physical injury” from “substantial property damage” is not
determinative: “As Mathis recognizes . . . the use of the word ‘or’ in a statute merely
signals that we must determine whether the alternatives are elements or means.” Id.
at 1058, citing Mathis, 136 S. Ct. at 2248-49.

       Arkansas case law is similarly unhelpful. In Adams v. State, the Arkansas
Court of Appeals said that “the State bore the burden to prove that appellant acted
with the purpose of terrorizing Karen and threatened to cause death or serious
physical injury or substantial property damage to Karen. . . . What is prohibited is the
communication of a threat with the purpose of terrorizing another person.” Adams,
435 S.W.3d 520, 523-24 (Ark. App. 2014). Myers argues this statement shows the
statute has two indivisible elements: (1) the purpose of terrorizing; and (2)
threatening to cause death or serious physical injury or property damage. But, in
Mason v. State, the Arkansas Supreme Court held that the elements of the statute
were satisfied where a defendant threatened to cause death or serious physical injury
to another person, without any proof of a threat to substantial property damage.
Mason, 206 S.W.3d 869, 873-74 (Ark. 2005). This suggests the state must establish,
as an element of the offense, that the defendant either threatened to cause death or
serious physical injury or threatened to cause substantial property damage to another
person. See Ta v. State, 459 S.W.3d 325, 328 (Ark. App. 2015) (omitting the element
of substantial property damage and stating that “[a] person commits the offense of
first-degree terroristic threatening if, with the purpose of terrorizing another person,
he threatens to cause death or serious physical injury to another person”); Knight v.
State, 758 S.W.2d 12, 14 (Ark. App. 1988) (“Under our statute it is an element of the
offense that the defendant act with the purpose of terrorizing another person, i.e., it
must be his ‘conscious object’ to cause fright.”).

      The Arkansas jury instructions also are ambiguous. The jury instructions say:

      __________________________ (Defendant(s)) [is] [are] charged with
      the offense of terroristic threatening in the first degree. To sustain

                                          -5-
      this charge the State must prove beyond a reasonable doubt that
      __________________________ (defendant(s)), with the purpose of
      terrorizing __________________________ (another person):

      [threatened to cause (death to) (or) (serious physical injury to) (or)
      (substantial damage to the property of) __________________________
      (another person);]

      [or]

      [threatened to cause (physical injury) (property damage) to a (teacher)
      (__________________________) other school employee) acting in the
      line of duty.]

AMI Crim. 2d 1310 (emphasis in original). Each parenthetical word or phrase may
be included or excluded based on the evidence. See Anderson v. State, 108 S.W.3d
592, 607 (Ark. 2003) (noting that a parenthetical in the criminal jury instructions
indicates its inclusion is optional).

       Myers argues the instruction could direct the jury to determine whether a
defendant “threatened to cause death to or serious physical injury to or substantial
damage to the property of another person.” If so instructed, the jury apparently would
not have to agree unanimously on whether the defendant made threats to injure a
person or damage property. According to Myers, this suggests the statute lists
alterative means of committing one element of the crime. On the other hand, the
instruction could direct the jury to determine whether a defendant “threatened to
cause death to or serious physical injury to another person.” Stated this way, the jury
instruction would set out the alternates disjunctively, allowing the court to choose
which is applicable. This suggests the alternates are elements, not means. See Lamb,
847 F.3d at 932 (“referencing one alternative term to the exclusion of all others”
demonstrates “that the statute contains a list of elements, each one of which goes
toward a separate crime”), quoting Mathis, 136 S. Ct. at 2257.



                                         -6-
      Because under the Mathis analysis, Arkansas state law fails to provide “clear
answers” on whether the categorical or modified categorical approach applies, this
court may look to “the record of a prior conviction itself.” Mathis, 136 S. Ct. at
2256. Cf. United States v. Naylor, 887 F.3d 397, 406 (8th Cir. 2018) (en banc)
(holding that “Missouri law provides a clear answer” to the elements/means inquiry
and the court “need not resort to taking a ‘peek at the record documents’”), quoting
Mathis, 136 S. Ct. at 2256. Thus, under either the modified categorical approach (as
Boaz directs this court to apply) or the Mathis analysis (which Myers argues applies),
this court must look to the record of conviction to determine whether Myers’
conviction for terroristic threatening is a crime of violence.

                                           C.

        A review of permissible materials shows Myers was convicted of threatening
to kill his girlfriend. The “Felony Information” charges:

      with the purpose of terrorizing another person, he threatened to cause
      death or serious physical injury or substantial property damage to
      another person, in violation of ACA § 5-13-301, to-wit: The Defendant
      threatened to kill his girlfriend while holding a knife to her throat,
      against the peace and dignity of the State of Arkansas.2




      2
       In Nance v. State, the Arkansas Supreme Court said: “‘[W]here but one
offense is charged but the several modes provided by the statute by which it may be
committed are charged in the disjunctive, the indictment is good. The reason is that
the charge is based upon one offense, and the different modes of committing it
provided in the statute are based upon the same transaction.’” Nance, 918 S.W.2d
114, 123 (Ark. 1996), quoting Kirkpatrick v. State, 9 S.W.2d 574, 575 (Ark. 1928).
This statement does not change the conclusion here. First, the court was discussing
the capital murder, not terroristic threatening, statute. Second, this is not a case where
“several modes provided in the statute . . . are charged in the disjunctive.”
                                           -7-
The “Sentencing Order” confirms that Myers was convicted of threatening his
girlfriend. This conviction is a violent felony under § 924(e) because it “has as an
element the . . . threatened use of physical force against the person of another.” 18
U.S.C. § 924(e)(2)(B)(i). See Boaz, 558 F.3d at 807. See also United States. v. Rice,
813 F.3d 704, 705 (8th Cir. 2016) (“Since the violation ‘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, we conclude that it was a crime of violence.”). The district court
properly counted Myers’ first-degree terroristic threatening conviction as a violent
felony.

                                         II.

      Myers also argues his Arkansas second-degree battery conviction is not a
violent felony under the ACCA. The parties agree Myers was convicted under
subsection (a)(1). At the time of his conviction, Arkansas Code Annotated §
5-13-202(a) said:

      (a) A person commits battery in the second degree if:

             (1) With the purpose of causing physical injury to another
             person, the person causes serious physical injury to any person;

             (2) With the purpose of causing physical injury to another
             person, the person causes physical injury to any person by means
             of a deadly weapon other than a firearm;

                                       ....

Ark. Code Ann. § 5-13-202(a) (2007). Post Mathis, this court held that “the
Arkansas second degree battery statute is divisible,” and the modified categorical
approach applies. Rice, 813 F.3d at 705. Post Mathis, this court also held that a
conviction under subsection (a)(2)—identical to subsection (a)(1) except requiring


                                         -8-
use of “a deadly weapon other than a firearm”—is a violent felony under the ACCA.
See Winston, 845 F.3d at 878.

       Myers argues Winston is distinguishable because subsection (a)(2) requires the
use of a deadly weapon. However, Winston did not hold that a conviction under
subsection (a)(2) was a violent felony because it required the use of a deadly weapon.
Rather, it held that the statute required a showing of physical injury, which is
equivalent to physical force. Id. Because subsection (a)(1), like subsection (a)(2),
“has as an element the use, attempted use, or threatened use of physical force” against
another person, 18 U.S.C. § 924(e)(2)(B)(i), it is a violent felony under the ACCA.
See id. The district court properly counted Myers’ second-degree battery conviction
as a violent felony.

                                    *******

      The judgment is affirmed.
                     ______________________________




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