                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1320
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Keidell L. Doyal

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                           Submitted: February 12, 2018
                               Filed: July 5, 2018
                                 ____________

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

LOKEN, Circuit Judge.

      Keidell Doyal pleaded guilty to being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing,
based on Doyal’s prior conviction for second degree domestic assault in violation of
Mo. Rev. Stat. § 565.073, the district court1 increased Doyal’s base offense level to
level 20 because he “committed any part of the instant offense subsequent to
sustaining one felony conviction of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 2K2.1(a)(4)(A). This resulted in an advisory
guidelines range of 37 to 46 months imprisonment. Applying the sentencing factors
in 18 U.S.C. § 3553(a), the district court sentenced Doyal to 40 months imprisonment.
He appeals his sentence, arguing that a prior Missouri conviction for second degree
domestic assault is not, categorically, a crime of violence under the Guidelines.
Reviewing this issue de novo, we affirm. United States v. Harrison, 809 F.3d 420,
425 (8th Cir. 2015) (standard of review).

                                           I.

        As relevant here, “crime of violence” is defined to include any offense
punishable by a term of imprisonment exceeding one year that “has as an element the
use, attempted use, or threatened use of physical force against the person of another.”
U.S.S.G. §§ 2K2.1, comment. (n.1), 4B1.2(a)(1). In determining whether Doyal’s
conviction for Missouri second degree domestic assault is a crime of violence under
this “force clause,” we look, categorically, at the generic elements of the offense, not
the facts of Doyal’s conviction. United States v. McGee, 890 F.3d 730, 735 (8th Cir.
2018). If the statute contains alternative elements, it is divisible, and we use a
modified categorical approach to determine which statutory element was the basis of
the conviction by consulting a limited universe of trial records such as charging
documents, plea agreements and verdict forms. Id. at 735-36. However, the modified
categorical approach may not be used when a statute specifies various means of
fulfilling the crime’s elements. Mathis v. United States, 136 S. Ct. 2243, 2253
(2016). When a statute lists alternative means, one of which does not fall within the


      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

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force clause, a prior conviction for that offense is not a crime of violence for purposes
of applying § 2K2.1(a)(4)(A) of the Guidelines. Id. at 2257.2

       In 2004, Doyal was convicted of domestic assault in the second degree, a
violation of Mo. Rev. Stat. § 565.073, which at that time provided:

            1. A person commits the crime of domestic assault in the second
      degree if the act involves a family or household member or an adult who
      is or has been in a continuing social relationship of a romantic or
      intimate nature with the actor . . . and he or she:

      (1) Attempts to cause or knowingly causes physical injury to such family
      or household member by any means, including but not limited to, by use
      of a deadly weapon or dangerous instrument, or by choking or
      strangulation; or

      (2) Recklessly causes serious physical injury to such family or
      household member; or

      (3) Recklessly causes physical injury to such family or household
      member by means of any deadly weapon.

             2. Domestic assault in the second degree is a class C felony.

In United States v. Phillips, 817 F.3d 567, 569 (8th Cir. 2016), we concluded that the
three subsections of § 565.073.1 are divisible and, applying the modified categorical
approach, that Phillips’s two prior convictions under § 565.073.1(1) were violent
felonies under the ACCA’s force clause.


      2
       Although Mathis interpreted the term “violent felony” under the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (ACCA), “given their nearly identical definitions,
we construe ‘violent felony’ under [the ACCA] and ‘crime of violence’ under the
Guidelines as interchangeable, including the corresponding force clauses and residual
clauses.” United States v. Mata, 869 F.3d 640, 644 (8th Cir. 2017).

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       Prior to this appeal, the Supreme Court vacated our judgment in Phillips and
remanded for further consideration in light of its decision in Mathis. Phillips v.
United States, 137 S. Ct. 634 (2016). With the remand in Phillips pending, counsel
for Doyal filed his brief in this case, arguing that our vacated opinion in Phillips was
no longer binding authority and that the subsections of § 565.073.1 are “overbroad
and indivisible.”3 One month later, our panel in Phillips issued its decision on
remand, concluding that Mathis “does not alter the prior decision” that § 565.073 is
a divisible statute and Phillips’s convictions for violating § 565.073.1(1) were ACCA
violent felonies. United States v. Phillips, 853 F.3d 432, 434 (8th Cir. 2017).
Doyal’s reply brief argues that Phillips on remand was wrongly decided, but our panel
is bound by this controlling authority. Accordingly, we apply the modified
categorical approach to determine whether Doyal’s prior second degree domestic
assault conviction qualifies as a crime of violence under the Guidelines.

       Alternatively, Doyal argues that, even if § 565.073 divisible, § 565.073.1(1)
is not a crime of violence under the force clause because it does not require the use
of violent force as an element. This argument is contrary to controlling Eighth Circuit
precedents. See, e.g., United States v. Haileselassie, 668 F.3d 1033, 1035 (8th Cir.
2012).




      3
        Doyal argues that § 565.073.1 is overbroad because subsections (2) and (3)
criminalize reckless conduct, an issue we noted but did not decide in Griffin v. United
States, 617 F. App’x 618, 624 (8th Cir. 2015). The government argues that
§ 565.073.1 is divisible but also argues, alternatively, that more recent cases establish
that reckless conduct in this context can qualify as a crime of violence. See Voisine
v. United States, 136 S. Ct. 2272, 2277 (2016), and United States v. Fogg, 836 F.3d
951, 956 (8th Cir. 2016). We need not address this alternative argument.

                                          -4-
                                          II.

       If § 565.073 is divisible, the modified categorical approach permits the district
court to look at a limited class of documents, such as charging papers, jury
instructions, and plea agreements and colloquy, to determine whether Doyal was
convicted of committing a crime of violence. See Shepard v. United States, 544 U.S.
13, 26 (2005). We have repeatedly held that an attempt to cause or knowingly
causing physical injury qualifies as a violent felony or crime of violence under the
force clause. See United States v. Starks, 674 F. App’x 580, 582-83 (8th Cir. 2016),
citing cases; United States v. Rice, 813 F.3d 704, 706 (8th Cir. 2016). Thus, a
conviction under § 565.073.1(1) constitutes a crime of violence under the Guidelines.
United States v. Scott, 818 F.3d 424, 435 (8th Cir. 2016). However, Doyal argues
that the state court documents introduced by the government did not satisfy its burden
to prove that he was convicted of violating § 565.073.1(1).

       When the district court does not find what subpart of a divisible statute the
defendant violated, as in this case, we need not remand if the record conclusively
establishes the offense of conviction. See United States v. Vinton, 631 F.3d 476, 485
(8th Cir. 2011) (the charging document “precisely tracks the language of [Mo. Rev.
Stat.] § 565.060.1(2)”); United States v. Jones, 574 F.3d 546, 551-52 (8th Cir. 2009)
(indictment established that defendant violated § 565.073.1(1)); compare United
States v. Fields, 832 F.3d 831, 836-37 (8th Cir. 2016) (remand required because
modified categorical approach documents were not part of the record on appeal).

       At sentencing, the government introduced the judgment and order evidencing
Doyal’s prior conviction for Missouri second degree domestic assault, and the First
Amended Information referenced in the judgment and order. The First Amended
Information charged that Doyal “committed the class C felony of Domestic Assault
in the Second Degree” when he “attempted to cause serious physical injury to [the



                                          -5-
victim] by striking her with an automobile and [the victim] . . . was the girl friend of
the defendant.”

       Doyal argues the government’s evidence was insufficient because the First
Amended Information and the judgment did not identify which subsection he
violated, and the First Amended Information incorporated language from two
different subsections when it charged that Doyal “attempted to cause serious physical
injury.” We disagree. Only § 565.073.1(1) criminalizes attempts. As Doyal points
out, subsection (1) proscribes attempts to cause “physical injury” to a domestic
victim, whereas subsection (2) requires proof that defendant “[r]ecklessly causes
serious physical injury.” But except for adding the word “serious,” which if anything
alleged a more violent crime, the First Amended Information tracked the language of
§ 565.073.1(1), like the indictment in Jones, 574 F.3d at 552. Accordingly, we
conclude that a state court document we may consider in applying the modified
categorical approach conclusively establishes that Doyal was convicted of violating
§ 565.073.1(1), a crime of violence under U.S.S.G. § 4B1.2(a)(1)’s force clause.

      The judgment of the district court is affirmed.
                     ______________________________




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