                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 18-1416
                       ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                    Marvin Meux

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

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

                           Submitted: January 14, 2019
                             Filed: March 18, 2019
                                   [Published]
                                 ____________

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

PER CURIAM.

       Marvin Meux pleaded 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 under the

      1
       The Honorable James M. Moody Jr., United States District Judge for the
Eastern District of Arkansas.
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based on its finding that
Meux’s three prior felony convictions under Arkansas Code § 5-64-401 qualified as
serious drug offenses. Using the 2016 United States Sentencing Guidelines (USSG)
in effect at the time of sentencing, the district court also determined that because
Meux “used or possessed the firearm” in connection with a crime of violence, his
base offense level was 34 and his criminal history category was VI. See USSG
§ 4B1.4(b)(3)(A), (c)(2). After a 3-level reduction for acceptance of responsibility,
the final advisory Guidelines range was 188 to 235 months of imprisonment, and the
district court imposed a sentence of 210 months. Meux appeals, arguing that his
Arkansas convictions do not qualify as serious drug offenses and that he did not
possess the firearm in connection with a crime of violence.

       “We review de novo whether a prior conviction is a predicate offense under the
ACCA.” United States v. Van, 543 F.3d 963, 966 (8th Cir. 2008). Meux’s Arkansas
convictions are predicate offenses under the ACCA only if they meet the ACCA’s
definition of a serious drug offense: “an offense under State law, involving
manufacturing, distributing, or possessing with intent to manufacture or distribute,
a controlled substance . . . .” 18 U.S.C. § 924(e)(2)(A)(ii). To determine whether a
prior conviction meets this definition, “courts look to the elements of the crime of
conviction, not the underlying facts.” United States v. Boman, 873 F.3d 1035, 1040
(8th Cir. 2017) (citing Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)).

       The government concedes that the version of Arkansas Code § 5-64-401 in
effect at the time of Meux’s convictions is overbroad, as subsection (c) criminalizes
mere possession of a controlled substance.2 But Meux was convicted under
subsection (a), which criminalizes manufacturing, delivering, or possessing with


      2
        Meux’s relevant arrests and convictions occurred between 1991 and 2004.
The relevant parts of § 5-64-401 did not materially change throughout this time
period.

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intent to manufacture or deliver a controlled substance. The statute indicates that
these are separate offenses, each carrying its own punishment, and therefore the
statute is divisible. See Mathis, 136 S. Ct. at 2256 (“If statutory alternatives carry
different punishments, then . . . they must be elements.”). The Arkansas Supreme
Court has confirmed that § 5-64-401(a) itself encompasses several different crimes.
See Cothren v. State, 42 S.W.3d 543, 549 (Ark. 2001) (explaining that manufacturing
a controlled substance and possessing with intent to deliver a controlled substance are
separate offenses with distinct elements); see also Flores-Larrazola v. Lynch, 854
F.3d 732, 732 & n.1 (5th Cir. 2017). Review of the documents permitted by Shepard
v. United States, 544 U.S. 13, 26 (2005), confirms that Meux was convicted of twice
delivering a controlled substance and once possessing with intent to deliver a
controlled substance. The district court did not err in finding that these convictions
qualified as serious drug offenses.

       Meux did not object to the application of USSG § 4B1.4(b)(3)(A) and (c)(2)
for using or possessing a firearm in connection with a crime of violence, so we review
for plain error, affirming the judgment unless Meux shows an error that is plain,
“affects his substantial rights,” and “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Boman, 873 F.3d at 1040 (cleaned up). Because
Meux was subject to an enhanced sentence under the ACCA, these Guideline
provisions applied so long as “the facts surrounding the offense of conviction support
a charge that [Meux’s] firearm . . . possession was in connection with conduct that
constituted a crime of violence,” as defined by USSG § 4B1.2(a). United States v.
Eason, 907 F.3d 554, 560 (8th Cir. 2018). “This is not a categorical inquiry; it turns
on the facts of defendant’s offense of conviction.” Id.

       Here, Meux’s conviction resulted from an incident in which he pointed a gun
at a person attempting to repossess Meux’s car. Meux could have been charged with
committing a crime of violence for this conduct. See United States v. Maid, 772 F.3d
1118, 1120 (8th Cir. 2014) (“[I]ntentionally pointing any firearm toward another . . .

                                           -3-
constitute[s] a threatened use of physical force under USSG § 4B1.2(a)(1).” (cleaned
up)); see also Ark. Code Ann. § 5-13-204(a)(2) (“A person commits aggravated
assault if, under circumstances manifesting extreme indifference to the value of
human life, he or she purposely . . . displays a firearm in such a manner that creates
a substantial danger of death or serious physical injury to another person.”); Wooten
v. State, 799 S.W.2d 560, 561–62 (Ark. Ct. App. 1990) (suggesting that one commits
aggravated assault by pointing a firearm toward another). The district court did not
commit error, plain or otherwise.

      The judgment of the district court is affirmed.
                     ______________________________




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