                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 08-3514
                                 ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Western District of Missouri.
Marquan L. Wilson, also known as          *
Marquawn L. Wilson,                       *
                                          *
             Appellant.                   *

                                 ________________

                            Submitted: April 17, 2009
                                Filed: June 12, 2009 (Corrected 6/16/09)
                                ________________

Before WOLLMAN, MELLOY and GRUENDER, Circuit Judges.
                      ________________

GRUENDER, Circuit Judge.

       Marquan Wilson pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, the district court1
found that Wilson was subject to the terms of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), based on his three prior violent felony convictions.
Accordingly, the district court sentenced Wilson to 180 months’ imprisonment, the


      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
mandatory minimum sentence under the ACCA. Wilson appeals his sentence, arguing
that he should not have been subject to the ACCA because one of his three prior
felony offenses—his conviction for child abuse under section 568.060 of the Missouri
Revised Statutes—does not qualify as a violent felony under § 924(e)(2)(B). We
affirm.

I.    BACKGROUND

      On July 31, 2007, Kansas City, Missouri police officers approached Wilson and
Lonnie Delaney at a bus stop near East 30th Street and Wabash Avenue because they
matched the description of two suspects wanted in connection with an armed
carjacking. While the officers were arresting Delaney on an outstanding warrant,
Delaney told the officers that Wilson had thrown a firearm under the bus stop seat
before the officers had arrived. The police searched the area around the bus stop and
recovered a .38 caliber revolver. Thereafter, Wilson pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

       Wilson’s Presentence Investigation Report (“PSR”) recommended that the
district court impose an enhanced sentence under the ACCA based on Wilson’s prior
felony convictions for unlawful use of a weapon in violation of Mo. Rev. Stat. §
571.030, child abuse in violation of Mo. Rev. Stat. § 568.060, and first degree assault
in violation of Mo. Rev. Stat. § 565.050. Based on this enhancement and Wilson’s
acceptance of responsibility, the PSR calculated a total offense level of 30. Wilson’s
total offense level of 30, his criminal history category of VI, and the mandatory
minimum sentence under § 924(e)(1) resulted in an advisory sentencing guidelines
range of 180 to 210 months’ imprisonment. At sentencing, Wilson objected to the
ACCA enhancement, asserting that his prior conviction for child abuse under section
568.060 did not qualify as a “violent felony” under § 924(e)(2)(B). The district court
overruled Wilson’s objection, adopted the PSR’s guidelines calculation, and sentenced
Wilson to 180 months’ imprisonment, the mandatory minimum sentence under the
ACCA. Wilson appeals his sentence, again arguing that his prior conviction for child
abuse does not qualify as a violent felony under the ACCA.

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II.   DISCUSSION

       We review a district court’s sentence in two parts: first, we review for
significant procedural error, such as improperly calculating the advisory sentencing
guidelines range; and second, absent significant procedural error, we review for
substantive reasonableness. United States v. Gall, 552 U.S. ---, 128 S. Ct. 586, 597
(2007); see United States v. Walker, 555 F.3d 716, 721-22 (8th Cir. 2009) (classifying
an error in applying the ACCA as procedural). “In reviewing a sentence for
procedural error, we review the district court’s factual findings for clear error and its
application of the guidelines de novo.” United States v. Barker, 556 F.3d 682, 689
(8th Cir. 2009). More specifically, we review de novo the question whether a crime
constitutes a violent felony under the ACCA. United States v. Boaz, 558 F.3d 800,
806 (8th Cir. 2009).

       Under the ACCA, an individual who is convicted of being a felon in possession
of a firearm under 18 U.S.C. § 922(g)(1) and has three previous convictions for
serious drug offenses or violent felonies is subject to a mandatory minimum sentence
of 15 years’ imprisonment. See 18 U.S.C. § 924(e)(1). The ACCA defines “violent
felony” as

      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; or
            (ii) is burglary, arson, or extortion, involves use of explosives, or
      otherwise involves conduct that presents a serious potential risk of
      physical injury to another . . . .
§ 924(e)(2)(B).

      The first step in determining whether a crime constitutes a violent felony under
the ACCA is to identify the proper category for which the defendant was convicted.
See Chambers v. United States, 555 U.S. ---, 129 S. Ct. 687, 690 (2009) (noting that


                                          -3-
the ACCA violent felony inquiry follows a categorical approach). Where the statute
underlying a defendant’s conviction criminalizes only one kind of behavior, our task
is easy—that single category becomes the subject of the ACCA inquiry. Where,
however, the statute of conviction criminalizes multiple kinds of behavior, we must
identify the proper category that embraces the defendant’s conviction. Id. at 690-91.
Accordingly, a sentencing court “may look . . . to [the] charging document, plea
agreement, jury instructions, or transcript of plea colloquy to determine [the] crime
at issue.” Id. at 691 (citing Shepard v. United States, 544 U.S. 13, 25 (2005)). The
statute underlying Wilson’s conviction, section 568.060, prohibits two categories of
behavior: inflicting cruel and inhuman punishment upon a child, section
568.060.1(1); and producing child pornography, section 568.060.1(2). In this case,
however, the parties agree that Wilson’s child abuse conviction was based on
subsection 1(1). See section 568.060.1(1) (“A person commits the crime of abuse of
a child if such person: [k]nowingly inflicts cruel and inhuman punishment upon a
child less than seventeen years old . . . .”).

       The second step in determining whether a crime constitutes a violent felony
under the ACCA is to determine whether the crime “has as an element the use,
attempted use, or threatened use of physical force against the person of another” under
§ 924(e)(2)(B)(i), “is burglary, arson, or extortion, [or] involves use of explosives”
under § 924(e)(2)(B)(ii), “or otherwise involves conduct that presents a serious
potential risk of physical injury to another” under the residual clause in §
924(e)(2)(B)(ii). We will first consider whether section 568.060.1(1) satisfies the
requirements of the residual clause because our conclusion in this regard makes
further analysis unnecessary.

       After the Supreme Court’s decision in Begay v. United States, 553 U.S. ---, 128
S. Ct. 1581 (2008), we have held that an offense is a violent felony under the residual
clause if it “[ordinarily] poses a similar degree of risk of physical injury and . . .
typically involves conduct that is similarly purposeful, violent and aggressive when
compared to the conduct involved in . . . the example crimes.” United States v.

                                         -4-
Gordon, 557 F.3d 623, 625 (8th Cir. 2009); see Begay, 128 S. Ct. at 1585-86. The
Government argues that section 568.060.1(1) satisfies the ACCA’s residual clause
because the conduct proscribed by the offense ordinarily poses a serious potential risk
of physical injury to another and typically involves purposeful, violent and aggressive
conduct. Wilson, however, argues that the crime does not satisfy the ACCA’s residual
clause because an individual may commit the offense even if no substantial risk of
physical injury is present, because section 568.060.1(1) was intended to prevent
emotional abuse rather than physical abuse, and because the conduct involved in child
abuse does not indicate a proclivity for violence or aggression.

         Turning first to the residual clause’s risk of injury requirement, we conclude
that the crime of child abuse under section 568.060.1(1) ordinarily poses a similar
degree of risk of physical injury as the enumerated crimes because the child abuse
offender must “inflict[] cruel and inhuman punishment upon a child.” Although we
recognize that the “cruel and inhuman punishment” element in section 568.060.1(1)
does not necessarily require physical injury, we have no problem concluding that in
the ordinary case the infliction of cruel and inhuman punishment results in physical
injury. See James v. United States, 550 U.S. 192, 207-08 (2007) (“[The] ACCA does
not require metaphysical certainty. . . . One can always hypothesize unusual cases in
which even a prototypically violent crime might not present a genuine risk of injury
. . . [b]ut that does not mean that [such violent crimes] are categorically nonviolent.”).
Furthermore, the fact that section 568.060.3(1) provides for an enhanced penalty
where the child abuse results in a serious emotional injury does not undermine our
conclusion that section 568.060.1(1) is directed primarily towards criminalizing child
abuse that results in physical injury. See Mo. Rev. Stat. § 568.060.3 (“Abuse of a
child is a class C felony, unless: (1) In the course thereof the person inflicts serious
emotional injury on the child, . . . in which case the crime is a class B felony.”).2


      2
        We are similarly unpersuaded by Wilson’s reliance on State v. Dunson, where
the Missouri Court of Appeals, relying on its earlier decision in Bass v. State, stated
that “[section 568.060(1)] is intended to prevent abusive and punitive conduct which

                                           -5-
Because child abuse under section 568.060.1(1) ordinarily presents a serious potential
risk of physical injury, we conclude that it involves the requisite level of risk to
qualify as a violent felony under the residual clause.

       We next consider whether child abuse under section 568.060.1(1) “typically
involve[s] ‘purposeful, violent, and aggressive conduct.’” United States v. Williams,
537 F.3d 969, 972 (8th Cir. 2008) (quoting Begay, 128 S. Ct. at 1586). We conclude
that the offense satisfies Begay’s purposeful conduct requirement based on the
offense’s mens rea of knowingly inflicting cruel and inhuman punishment. See United
States v. Almenas, 553 F.3d 27, 34 (1st Cir.) (holding that Begay’s purposefulness
requirement was “easily met” because the challenged offenses both “require the
offender to act knowingly”), cert. denied, 556 U.S. ---, 77 U.S.L.W. 3634 (2009). We
also conclude that a violation of section 568.060.1(1), which requires the infliction of
cruel and inhuman punishment, satisfies Begay’s requirement that the offense
typically involves violent and aggressive conduct. Although we acknowledge that it
is possible for an offender to violate section 568.060.1(1) without engaging in violent
and aggressive conduct, our inquiry under the residual clause is focused on whether
violent and aggressive conduct is typically involved. See Gordon, 557 F.3d at 625;
cf. James, 550 U.S. at 207 (“[The] ACCA does not require metaphysical certainty.”).
Indeed, Wilson cited only one reported Missouri prosecution under section
568.060.1(1) that arguably did not involve violent and aggressive conduct. See State


causes serious emotional injury to a child.” State v. Dunson, 979 S.W.2d 237, 243
(Mo. Ct. App. 1998) (citing Bass v. State, 950 S.W.2d 940, 946 (Mo Ct. App. 1997)).
However, the court in Bass held that “abuse of a child in violation of Sections
568.060.1(1) and 568.060.3 . . . is intended to prevent abusive and punitive conduct
which causes serious emotional injury to the child.” Bass, 950 S.W.2d at 946
(emphasis added). The Bass decision makes clear that the section 568.060.3
enhancement—rather than the section 568.060.1(1) offense itself—addresses
situations involving the infliction of serious emotional injury. Moreover, the fact that
section 560.060.1(1) may be intended, in part, to prevent serious emotional injury to
a child does not mean that the typical conviction under it does not involve physical
injury to a child—indeed, the two types of injury are not mutually exclusive.

                                          -6-
v. Esker, 658 S.W.2d 49 (Mo. Ct. App. 1983) (affirming the defendant’s child abuse
conviction under section 568.060.1(1) for locking his girlfriend’s seven-year-old son
in their home’s basement without adequate nutritional, medical, dental, educational
or emotional care). Every other reported case involving prosecutions under section
568.060.1(1) clearly involves violent and aggressive conduct. See, e.g., State v. Still,
216 S.W.3d 261, 263-66 (Mo. Ct. App. 2007) (noting defendant spanked children with
a wooden paddle); State v. Yeager, 63 S.W.3d 307, 310 (Mo. Ct. App. 2001) (noting
defendant must have dealt “a ‘very, very forceful blow’ to the [child’s] head”); State
v. Silvey, 980 S.W.2d 103, 105 (Mo. Ct. App. 1998) (noting defendant’s multiple
strikes to a child with a wooden paddle).

       In summary, we conclude that child abuse under section 568.060.1(1)
constitutes a violent felony under the ACCA’s residual clause because it ordinarily
poses a serious potential risk of physical injury and typically involves purposeful,
violent and aggressive conduct. Thus, the district court did not commit a procedural
error in concluding that Wilson’s prior felony convictions qualified him for a
sentencing enhancement under the ACCA.3

III.   CONCLUSION

       For the foregoing reasons, we affirm the district court.

                        ______________________________




       3
        “After finding that the district court did not commit significant procedural
error, as we have here, we would ordinarily review the substantive reasonableness of
the district court’s sentence.” United States v. Fischer, 551 F.3d 751, 756 (8th Cir.
2008). However, because Wilson “did not provide any argument in his briefs
regarding the reasonableness of his sentence, he is deemed to have waived this issue
on appeal.” See id.

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