                 United States Court of Appeals
                             For the Eighth Circuit
                          ___________________________

                               No. 18-3317
                       ___________________________

                           United States of America

                                     Plaintiff - Appellee

                                       v.

                              Bradd Alan Quigley

                                  Defendant - Appellant
                                ____________

                    Appeal from United States District Court
                 for the Southern District of Iowa - Des Moines
                                 ____________

                        Submitted: September 23, 2019
                           Filed: November 15, 2019
                               ____________

Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges.
                         ____________

GRUENDER, Circuit Judge.

      Bradd Quigley pleaded guilty to conspiracy to distribute 500 grams or more
of a mixture and substance containing methamphetamine and 50 grams or more of
actual methamphetamine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and
possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C.
§ 924(c)(1)(A)(i). The presentence investigation report recommended classifying
Quigley as a career offender under U.S.S.G. § 4B1.1 for two prior felony
convictions, one a crime of violence and one a controlled substance offense. Quigley
challenged this classification, arguing that his Iowa assault with intent to inflict
serious injury conviction did not qualify as a crime of violence under the career-
offender enhancement. The district court1 rejected this argument and concluded
Quigley qualified as a career offender. It then determined that Quigley’s criminal
history was a Category VI, with an advisory sentencing guidelines range of 262 to
327 months, plus a mandatory 60-month consecutive sentence for his firearms
offense. The district court varied downward to 180 months on the conspiracy count
and imposed a 240-month sentence. Quigley appeals, challenging only the district
court’s conclusion that his Iowa conviction for assault with intent to inflict serious
injury qualified as a crime of violence under the career-offender enhancement. We
affirm.

        “We review classification as a career offender de novo.” United States v.
Boose, 739 F.3d 1185, 1186 (8th Cir. 2014). A conviction qualifies as a “crime of
violence” for purposes of the career-offender enhancement if it is an “offense under
federal or state law, punishable by imprisonment for a term exceeding one year,”
that either (1) “has as an element the use, attempted use, or threatened use of physical
force against the person of another,” (the “force clause”) or (2) is “aggravated
assault,” among other enumerated offenses (the “enumerated-offenses clause”).
U.S.S.G. §§ 4B1.1(a), 4B1.2(a).

      In Iowa, assault with intent to inflict serious injury is an aggravated
misdemeanor punishable by up to two years in prison. Iowa Code §§ 708.2(1),
903.1(2). We have previously held that section 708.2(1) is categorically a crime of
violence under the enumerated-offenses clause. United States v. Chapman, 720 F.
App’x 794, 795-96 (8th Cir. 2018) (per curiam). Quigley suggests we erred in
Chapman, but, whether or not we follow Chapman—an unpublished and thus
nonprecedential opinion, see 8th Cir. R. 32.1A—Quigley cannot succeed because


      1
       The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.

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his Iowa conviction for assault with intent to inflict serious injury qualifies as a crime
of violence under the force clause.

       The “first step” in our analysis “is to determine whether to apply the
categorical or modified categorical approach.” United States v. Ossana, 638 F.3d
895, 899 (8th Cir. 2011). If the statute underlying the predicate conviction “creates
a single crime by listing a single set of elements,” it is indivisible, and we follow the
categorical approach, looking to the elements of the offense “rather than the
defendant’s actual conduct” to determine if it has a physical-force element. United
States v. Schneider, 905 F.3d 1088, 1090 (8th Cir. 2018). But if the statute creates
multiple crimes with distinct elements listed together, it is “divisible,” and we follow
the modified categorical approach. Id. at 1090-91. Sometimes, a statute may seem
divisible because it lists alternatives, but in fact it is indivisible because those
alternatives “are not alternative elements, going toward the creation of separate
crimes” but are simply “alternative ways” or “means” of “satisfying a single . . .
element.” Mathis v. United States, 579 U.S. ---, 136 S. Ct. 2243, 2250 (2016).

        Iowa’s offense of assault with intent to inflict serious injury requires
commission of an “assault” as defined in Iowa Code section 708.1 with the intent to
inflict a “serious injury” as defined in Iowa Code section 702.18 on another. Iowa
Code § 708.2(1); see State v. Edwards, 801 N.W.2d 378, 2011 WL 1878600, at *1
(Iowa Ct. App. May 11, 2011) (unpublished) (recounting jury instructions that
defined “serious injury” in section 708.2(1) by referring to the definition in section
702.18(1)); cf. State v. White, 668 N.W.2d 850, 859 (Iowa 2003) (looking to section
702.18 for the definition of “serious injury” as used in an Iowa criminal statute
similar to section 708.2(1)). On its face, section 708.2(1) appears indivisible.

        The “assault” and “serious injury” elements, however, refer to other statutes
that list different types of “assault” and “serious injury.” See Iowa Code §§ 708.1(2),
702.18(1). The parties agree that the statute is divisible based on the incorporation
of these other sections into section 708.2(1), though they disagree about the proper
analysis under the modified categorical approach. We nevertheless conclude that


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the statute is indivisible. The alternatives listed in sections 708.1(2) and 702.18(1)
are merely different means of satisfying the “assault” and “serious injury” elements,
respectively, of the singular “assault with intent to inflict serious injury” crime. See,
e.g., Bacon v. Bacon, 567 N.W.2d 414, 417-18 (Iowa 1997) (noting that section
708.1 lists “alternatives” that can satisfy the “assault” element of another Iowa
crime); State v. McKee, 312 N.W.2d 907, 912 (Iowa 1981) (recognizing the different
“possible kinds of serious injury . . . included in the section 702.18 definition”); Iowa
Code § 702.18(1) (stating that a “serious injury” is “any” of the alternatives listed in
the statute). Because section 708.2(1) merely allows for multiple factual means to
satisfy particular elements, it remains indivisible, so we apply the categorical
approach. See Mathis, 136 S. Ct. at 2249, 2253.

      Under the categorical approach, we restrict our inquiry to “the abstract
requirements for a conviction, rather than the defendant’s actual conduct,” and ask
whether a conviction necessarily had “a physical-force element” for the offense to
qualify as a crime of violence under the force clause. Schneider, 905 F.3d at 1090.
“Physical force” is “force capable of causing physical pain or injury to another
person.” Johnson v. United States, 559 U.S. 133, 140 (2010). If “only conduct
involving physical force” can support a conviction under the statute, then the crime
“has a physical-force element.” Schneider, 905 F.3d at 1090. Conversely, if the
crime can be committed without even the threatened use of physical force, it does
not have a physical-force element. See id.

       Mere speculation that section 708.2(1) could be applied to conduct not
involving physical force does not take the offense outside the scope of the force
clause; rather, there must be a “non-fanciful, non-theoretical manner” to commit
assault with intent to inflict serious injury without so much as the threatened use of
physical force. United States v. Gaines, 895 F.3d 1028, 1033 (8th Cir. 2018). To
make this showing, a defendant “must at least point to his own case or other cases
in which the state courts in fact did apply the statute” in a way that takes it beyond
the scope of the force clause. Fletcher v. United States, 858 F.3d 501, 507 (8th Cir.
2017).


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      Quigley does not identify any Iowa cases where an individual was convicted
under section 708.2(1) without having at least threatened to use physical force. And
our own survey of cases reveals that this is not a “realistic probability.” See id.

      For example, in State v. Ortiz, the Iowa Supreme Court concluded that the
evidence could not support a finding of “intent to inflict serious injury” under section
708.2(1) where, although the defendant “displayed a knife,” he “never turned to
confront” the victim, “did not lunge toward her or approach her with the knife,” and
“never made any stabbing or slashing gestures at her.” 905 N.W.2d 174, 182-83
(Iowa 2017). The component missing that was needed to satisfy the elements of
section 708.2(1) was the use or threatened use of physical force.

       Consider also Gaines, in which the defendant argued that his conviction under
Iowa Code section 708.2A(2)(c) for domestic abuse “assault” as defined in section
708.1 “with the intent to inflict a serious injury upon another” did not qualify as a
“crime of violence” for purposes of the career-offender enhancement. 895 F.3d at
1031. We concluded that “[b]y pleading guilty” to this offense, the defendant
“affirmed that he committed an assault . . . with the intent to inflict a serious injury,”
which “qualified as the use, attempted use, or threatened use, of physical force” as
required under the force clause of the career-offender enhancement. Id. at 1033.

        As in Gaines, so too here. Quigley’s commission of assault with intent to
inflict serious injury necessarily involved the use, attempted use, or threatened use
of physical force. And “we can think of no non-fanciful, non-theoretical manner in
which to commit such crime” without at least threatening use of physical force. See
id.

       Thus, Quigley’s assault conviction qualifies as a crime of violence under the
force clause of the career-offender enhancement. We affirm.
                        ______________________________




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