                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2415
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                James Dwayne Myers

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

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

                              Submitted: June 21, 2019
                                Filed: July 2, 2019
                                  ____________

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

BENTON, Circuit Judge.

       This case is on remand from the Supreme Court of the United States. See
Myers v. United States, 139 S. Ct. 1540 (2019). 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 career criminal to 188 months’ imprisonment. He

      1
      The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
appealed the ACCA designation. This court affirmed. See United States v. Myers,
896 F.3d 866, 872 (8th Cir. 2018). The Supreme Court vacated the judgment and
remanded “for further consideration in light of the position asserted by the Solicitor
General in his brief for the United States filed on March 21, 2019.” Myers, 139 S.
Ct. at 1540. For the following reasons, this court again affirms.2

       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



      2
       Much of this opinion is taken directly from this court’s initial opinion in this
case. See Myers, 896 F.3d at 866-871.

                                         -2-
                                          ....
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.”

      A violent felony under the ACCA includes “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, looking to the statute of conviction to determine
whether that conviction necessarily has, as an element, the use, attempted use, or
threatened use of physical force against the person of another. See United States v.
Castleman, 572 U.S. 157, 168 (2014). “If there is a realistic probability that the
statute encompasses conduct that does not involve use or threatened use of violent
force, the statute sweeps more broadly than the ACCA’s definition of violent felony.”
Martin v. United States, 904 F.3d 594, 596 (8th Cir. 2018) (internal quotation marks
omitted). 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,

                                         -3-
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.

        Determining whether a statute lists elements or means, courts may look to
“authoritative sources of state law,” including state court decisions interpreting the
statute. See id. at 2256. Here, “state court decision[s] definitively answer[] the
question” and this court “need only follow what [they] say.” Id. In Walker v. State,
for example, the court said that “[a]s 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.” Walker, 389 S.W.3d
10, 15 (Ark. App. 2012). This shows that Arkansas law treats “death or serious
physical injury” and “substantial property damage” as alternative elements, with the
jury instructed on one or the other. Similarly, 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 shows that 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”); Foshee v. State, 2014 Ark. App.
315, at *2 (2014) (same); Johnson v. State, 25 S.W.3d 445, 450-51 (Ark. App. 2000)
(same).

                                          -4-
       Because A.C.A. § 5-13-301(a)(1)(A) lists alternative elements, the statute is
divisible, and the modified categorical approach applies. Under the modified
categorical approach, this court “looks to a limited class of documents (for example,
the indictment, jury instructions, or plea agreement and colloquy) to determine what
crime, with what elements, a defendant was convicted of.” Mathis, 136 S. Ct. at
2249. The court then can determine if that conviction is a crime of violence. See id.

                                         B.

        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.

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 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.




                                         -5-
                                        II.

      Myers also agues his Arkansas second-degree battery conviction is not a
violent felony under the ACCA. The Supreme Court’s remand in Myers, 139 S. Ct.
at 1540, does not alter this court’s prior holding that Myers’ second-degree battery
conviction is a violent felony. See Myers, 896 F.3d at 872.

                                   *******

      The judgment is affirmed.
                     ______________________________




                                        -6-
