                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1527
                        ___________________________

                            United States of America,

                       lllllllllllllllllllllPlaintiff - Appellee,

                                          v.

                            Jeffrey Joseph Pendleton,

                      lllllllllllllllllllllDefendant - Appellant.
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                          Submitted: February 16, 2018
                              Filed: July 6, 2018
                                ____________

Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.*
                             ____________




      *
       This opinion is filed by Chief Judge Smith and Judge Colloton under Eighth
Circuit Rule 47E.
COLLOTON, Circuit Judge.

       A jury convicted Jeffrey Pendleton of unlawful possession of a firearm as a
previously convicted felon. The district court1 imposed a 15-year prison sentence
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). On appeal,
Pendleton disputes an evidentiary ruling at trial and challenges the determination that
he qualifies as an armed career criminal under the sentencing statute. We conclude
that there was no reversible error, and we therefore affirm.

                                          I.

      In March 2015, Pendleton was living in the basement of his nephew’s home on
the Lower Sioux Indian Reservation near Morton, Minnesota. On March 17, Penny
Arredondo reported to law enforcement that she had observed Pendleton carrying a
handgun at the nephew’s residence. Three days later, law enforcement officers
executed a search warrant at the house.

       Officers entered the home and located Pendleton in a basement bedroom,
crouched near the bed. After arresting Pendleton, officers found a loaded black nine
millimeter semiautomatic handgun under the bed, approximately two feet from where
Pendleton had been crouching. Prescription pill bottles bearing Pendleton’s name
were lying on a dresser in the room. Inside the dresser, officers found shotgun shells,
a nine millimeter round, and a .380 caliber round, as well as several pairs of blue
jeans that matched Pendleton’s physical characteristics. Upstairs, officers found more
pill bottles labeled for Pendleton and a bag of nine millimeter ammunition. A
forensic examination later confirmed that Pendleton’s DNA was on the grip, slide,
and magazine of the handgun.


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

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       A grand jury charged Pendleton with unlawful possession of a firearm and
unlawful possession of ammunition as a previously convicted felon, both in violation
of 18 U.S.C. § 922(g)(1). The case proceeded to trial, and a jury found Pendleton
guilty of possessing the firearm, but acquitted him of possessing ammunition. At
sentencing, the district court concluded that Pendleton qualified as an armed career
criminal under 18 U.S.C. § 924(e) and sentenced him to the statutory minimum term
of 15 years’ imprisonment.

                                         II.

       Pendleton appeals his conviction on the ground that the district court erred by
admitting testimony of Penny Arredondo that she saw Pendleton carrying a handgun
before the search. The government gave advance notice of Arredondo’s testimony,
and Pendleton moved in limine to exclude it. The district court denied the motion,
stating that Arredondo’s testimony was admissible under Federal Rule of Evidence
404(b). The court also overruled Pendleton’s renewed objection to Arredondo’s
testimony before opening statements.

        At trial, Arredondo testified that while visiting Pendleton’s nephew, she
observed Pendleton carrying a firearm on his waistband “maybe two or three months
tops” before law enforcement executed the search warrant. When asked to describe
the gun, Arredondo testified: “I want to say black. It’s not one—not like a revolver.
Just one that you put like a—what do you call those, you fill it and then you just pop
it in, the casings.” We review the district court’s evidentiary rulings for abuse of
discretion. United States v. White, 816 F.3d 976, 982 (8th Cir. 2016).

      The district court admitted Arredondo’s testimony for limited purposes as
evidence of a crime, wrong, or other act under Rule 404(b). We agree with the
government, however, that the testimony was relevant to the charged offense and was
therefore admissible under Rule 402. Arredondo testified that she observed

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Pendleton carrying a black semiautomatic handgun within two or three months of the
search, and officers found a black semiautomatic handgun under the bed near which
Pendleton was crouching when they arrested him. Arredondo’s testimony tended to
make it more probable that the firearm under the bed belonged to Pendleton, because
a jury reasonably could infer that the gun under the bed was the gun that Arredondo
saw Pendleton carrying in his waistband. See Fed. R. Evid. 401.

      Pendleton complains that Arredondo’s observation was too remote in time to
be relevant, but the fact that Pendleton carried a firearm of the same description
within eight weeks of the search would tend to make it more likely that the seized gun
belonged to him. Pendleton also attacks Arredondo’s credibility, but a challenge to
credibility does not affect admissibility of testimony under Rule 402. See United
States v. Searing, 984 F.2d 960, 965-66 (8th Cir. 1993). It was for the jury to
determine how much weight to give the testimony in light of Pendleton’s arguments
about temporal proximity and credibility. The district court properly admitted the
disputed testimony, and we therefore affirm the conviction.

        Pendleton next argues that the district court erred by enhancing his sentence
under the Armed Career Criminal Act. To qualify as an armed career criminal under
the ACCA, a defendant must have sustained at least three previous convictions for
a violent felony or serious drug offense. 18 U.S.C. § 924(e)(1). The district court
concluded that Pendleton had incurred three previous convictions for a violent felony:
one conviction for first-degree assault and two convictions for second-degree assault,
all in Minnesota. We review the district court’s determination de novo. United States
v. Whaley, 552 F.3d 904, 905 (8th Cir. 2009).

       Pendleton contends that his second-degree assault convictions do not qualify
as violent felonies. Under the ACCA’s “force clause,” a conviction qualifies if the
crime “has as an element the use, attempted use, or threatened use of physical force
against the person of another.” § 924(e)(2)(B)(i). “Physical force” means “violent

                                         -4-
force—that is, force capable of causing physical pain or injury to another person.”
Curtis Johnson v. United States, 559 U.S. 133, 140 (2010).

       At the time of Pendleton’s offenses of conviction, Minnesota law defined the
crime as “assault[ing] another with a dangerous weapon.” Minn. Stat. § 609.222,
subdiv. 1 (1992); Minn. Stat. § 609.222 (1989). “Assault” meant “(1) An act done
with intent to cause fear in another of immediate bodily harm or death; or (2) The
intentional infliction of or attempt to inflict bodily harm upon another.” Minn. Stat.
§ 609.02, subdiv. 10 (1997); Minn. Stat. § 609.02, subdiv. 10 (1989). And “bodily
harm” was defined as “physical pain or injury, illness, or any impairment of physical
condition.” Minn. Stat. § 609.02, subdiv. 7 (1997); Minn Stat. § 609.02, subdiv. 7
(1989).

       Pendleton contends that assault in Minnesota did not categorically require the
use, attempted use, or threatened use of violent physical force. He cites the fact that
the statute does not require the defendant to cause actual bodily harm but only “fear”
of bodily harm, and he emphasizes that “bodily harm” includes “illness” or
“impairment of physical condition” as well as “physical pain or injury.” But as
Pendleton acknowledges, our decisions have specifically rejected comparable
arguments based on these aspects of the statute. See United States v. Headbird, 832
F.3d 844, 846-47 (8th Cir. 2016); United States v. Lindsey, 827 F.3d 733, 739-40 (8th
Cir. 2016); United States v. Schaffer, 818 F.3d 796, 798-99 (8th Cir. 2016). We
therefore conclude that Pendleton’s two convictions for second-degree assault in
Minnesota qualify as violent felonies under the force clause.

      Pendleton argues alternatively that the ACCA’s force clause is
unconstitutionally vague because it “fails to give ordinary people fair notice of the
conduct it punishes, or [is] so standardless that it invites arbitrary enforcement.”
Samuel Johnson v. United States, 135 S. Ct. 2551, 2556 (2015). The Supreme Court
held the ACCA’s “residual clause” void for vagueness because it created an

                                         -5-
indeterminate “risk” standard that left courts with “grave uncertainty about how to
estimate the risk posed by a crime” and “uncertainty about how much risk it takes for
a crime to qualify as a violent felony.” Id. at 2557-58; see also Sessions v. Dimaya,
138 S. Ct. 1204, 1213-14 (2018).

       Those two features of the residual clause are not present with the force clause.
The residual clause “tie[d] the judicial assessment of risk to a judicially imagined
‘ordinary case’ of a crime, not to . . . statutory elements,” and the Court thought there
was no reliable way to determine what an “ordinary” crime involved. Samuel
Johnson, 135 S. Ct. at 2557. The force clause, by contrast, permits the sentencing
court to focus on statutory elements and to analyze whether those elements
necessarily involve the use, attempted use, or threatened use of force. The residual
clause also required courts to interpret potential risk of physical injury in light of four
enumerated crimes that are “far from clear in respect to the degree of risk each
poses.” Id. at 2558 (quoting Begay v. United States, 553 U.S. 137, 143 (2008)). The
force clause includes no enumerated crimes; it allows the sentencing court to consider
the offense of conviction by itself in determining whether the elements involve the
use, attempted use, or threatened use of force. Without the two problematic aspects
of the residual clause, the force clause presents a manageable judicial inquiry that
provides adequate notice to potential offenders. We therefore reject Pendleton’s
contention that the force clause is unconstitutionally vague.

       Because Pendleton’s assault convictions qualify as violent felonies under the
ACCA’s force clause, and because the force clause is not void for vagueness,
Pendleton had three previous convictions for a violent felony when he committed the
instant offense. The district court therefore properly sentenced him to 15 years’
imprisonment under the ACCA.

                                    *       *       *



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The judgment of the district court is affirmed.
               ______________________________




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