                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1998
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                   Dominic Irons

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                          Submitted: December 16, 2016
                            Filed: February 27, 2017
                                 ____________

Before WOLLMAN and SMITH, Circuit Judges, and WRIGHT,1 District Judge.
                          ____________

WRIGHT, District Judge.


      Following his conviction of unlawful possession of a firearm, Dominic Irons
appeals the district court’s imposition of a 15-year mandatory minimum sentence


      1
       The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota, sitting by designation.
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The district
court2 determined that, because Irons has at least three prior violent felony
convictions, he is subject to a 15-year mandatory minimum sentence. Irons contends
that the district court erred by (1) employing the modified categorical approach to
determine whether his state conviction qualifies as a predicate violent offense,
(2) concluding that his state conviction is a “violent felony” under the ACCA, and
(3) classifying his state conviction as a “crime of violence” under the United States
Federal Sentencing Guidelines (“Guidelines”). We affirm.


       The underlying facts are undisputed. On January 8, 2016, Irons pleaded guilty
to unlawful possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). Following
a presentence investigation, the district court determined that Irons had at least three
prior violent-felony convictions and, therefore, is an Armed Career Criminal subject
to an enhanced sentence under 18 U.S.C. § 924(e). Irons’s criminal history includes
a 2001 conviction of unlawful discharge of a firearm, a 2003 conviction of unlawful
use of a weapon and a 2012 conviction of violence against another inmate. Irons
objected to the classification of his 2012 conviction as a “violent offense” under the
ACCA and as a “crime of violence” under the Guidelines.3 At his sentencing hearing,
Irons argued that neither imposing a mandatory minimum sentence under the ACCA
nor increasing his offense level under the Guidelines was warranted because his 2012
conviction is not a predicate violent felony. After overruling Irons’s objections, the
district court imposed a 180-month mandatory minimum sentence of imprisonment.
Irons appeals.


      2
       The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
      3
       Irons conceded that his 2001 and 2003 convictions involved violent felonies
under the ACCA, and the parties do not dispute those classifications on appeal.



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                                          I.


       The ACCA mandates a minimum sentence of 15 years’ imprisonment for a
person who violates 18 U.S.C. § 922(g) and “has three previous convictions . . . for
a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1); Descamps v.
United States, 133 S. Ct. 2276, 2282 (2013). The ACCA defines a “violent felony,”
as relevant here, as any state or federal felony that “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); Descamps, 133 S. Ct. at 2282. Irons contends that because
his 2012 conviction of committing violence against another inmate, in violation of
Mo. Rev. Stat. § 217.385 (2000), is not a “violent felony” under the ACCA, the
district court erred by imposing a 15-year mandatory minimum sentence. Irons
challenges both the district court’s methodology in applying the ACCA and its legal
conclusion that his conviction under Mo. Rev. Stat. § 217.385, subd. 1, is a “violent
felony” under the ACCA and a “crime of violence” under the Guidelines. We review
de novo a district court’s construction and application of both the ACCA and the
Guidelines. United States v. Sykes, 844 F.3d 712, 715 (8th Cir. 2016); United States
v. Harrison, 809 F.3d 420, 425 (8th Cir. 2015).


                                          A.


      We first address Irons’s challenge to the district court’s use of the modified
categorical approach to determine whether his 2012 conviction of committing
violence against another inmate, Mo. Rev. Stat. § 217.385, subd. 1, is a violent
felony. Irons argues that the district court’s use of the modified categorical approach




                                         -3-
was neither necessary nor appropriate because neither party at his sentencing hearing
disputed the statutory basis for his conviction.


       The Supreme Court of the United States established the “categorical approach”
as the analytical framework for courts to use when determining whether a defendant’s
prior conviction qualifies as one of the ACCA’s enumerated predicate offenses.
Taylor v. United States, 495 U.S. 575, 600 (1990); see also Descamps, 133 S. Ct. at
2283. The categorical approach requires courts to look only to the “elements . . . of
a defendant’s prior offenses, and not to the particular facts underlying those
convictions.” Descamps, 133 S. Ct. at 2283 (internal quotation marks omitted);
accord United States v. Soileau, 686 F.3d 861, 864 (8th Cir. 2012). When a statute
comprises multiple, alternative versions of the offense to which a defendant pleaded
guilty, the modified categorical approach is used to determine “which statutory
phrase, contained within a statute listing several different crimes, cover[s] a prior
conviction.” Descamps, 133 S. Ct. at 2285 (internal quotation marks omitted);
accord United States v. Schaffer, 818 F.3d 796, 797 (8th Cir. 2016) (“When a statute
criminalizes both conduct that does and does not qualify as a violent felony, courts
apply the modified categorical approach.”). To perform this analysis, courts
scrutinize a restricted set of sources—namely, the plea agreement, if any, or the
transcript of the guilty-plea colloquy—to assess which part of the statute forms the
basis for the conviction. Descamps, 133 S. Ct. at 2284. The Descamps Court
explained:


      Applied in [this] way . . . the modified approach merely helps implement
      the categorical approach when a defendant [is] convicted of violating a
      divisible statute. The modified approach thus acts not as an exception,
      but instead as a tool. It retains the categorical approach’s central
      feature: a focus on the elements, rather than the facts, of a crime. And




                                         -4-
      it preserves the categorical approach’s basic method: comparing those
      elements with the generic offense’s. All the modified approach adds is
      a mechanism . . . to identify, from among several alternatives, the crime
      of conviction so that the court can compare it to the generic offense.


Id. at 2285 (internal quotation marks omitted) (emphasis added).


      Here, Irons pleaded guilty to violating Mo. Rev. Stat. § 217.385, which
contains two subdivisions:


      1. No offender shall knowingly commit violence to an employee of the
      department or to another offender housed in a department correctional
      center. Violation of this subsection shall be a class B felony.

      2. No offender shall knowingly damage any building or other property
      owned or operated by the department. Violation of this subsection shall be
      a class C felony.


Mo. Rev. Stat. § 217.385 (2000). Because this statute contains two subdivisions
prohibiting different felonious conduct, the district court needed to employ the
modified categorical approach to “identify, from among several alternatives, the
crime of conviction.” See Descamps, 133 S. Ct. at 2285. This methodology was
necessary to determine whether Irons’s conviction under Mo. Rev. Stat. § 217.385,
subd. 1, qualifies as a “violent felony” under the ACCA. See id. Using this approach,
the district court concluded that Irons’s conviction implicated subdivision 1, which
addresses violence against another inmate. The record supports this conclusion.




                                         -5-
      Irons argues that the district court’s decision to employ the modified
categorical approach was unnecessary because neither party contested the statutory
provision to which Irons pleaded guilty. But Irons cites no authority for the
proposition that the district court must accept such a concession or that the use of the
modified categorical approach, despite the parties’ agreement as to the nature of the
offense, constitutes reversible error. The district court appropriately employed the
modified categorical approach in these circumstances.4


                                            B.


       Irons next argues that his 2012 conviction of “knowingly commit[ting]
violence to . . . another offender housed in a department correctional center,” in
violation of Mo. Rev. Stat. § 217.385, subd. 1, is not a prior conviction of a violent
felony under the ACCA. Irons contends that Section 217.385, subdivision 1, is
overinclusive because it “criminalize[s] conduct that fails to rise to [the] level of force
capable of causing physical pain or injury.” For this reason, he argues, it fails to
satisfy the ACCA’s definition of a “violent felony.”


     To determine whether a state conviction is a “violent felony” under the ACCA,
we apply the categorical approach to assess whether the elements of the crime of

      4
        Irons implies that the district court improperly considered evidence that Irons
struck another inmate in the face and head with a closed fist. See Descamps, 133 S.
Ct. at 2288 (explaining that the modified categorical approach does not permit the
sentencing court to examine the conduct underlying a defendant’s previous offense).
The record is unclear, however, as to what weight, if any, the district court gave the
facts underlying Irons’s 2012 conviction. In any event, we apply de novo the
modified categorical approach without reference to the underlying facts of Irons’s
conviction. See Mathis v. United States, 136 S. Ct. 2243, 2248 (2016).



                                           -6-
conviction satisfy the ACCA’s definition of a “violent felony.” Johnson v. United
States, 559 U.S. 133, 138 (2010). The ACCA defines a “violent felony,” in relevant
part as “any crime punishable by imprisonment for a term exceeding one year” that
“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). A violent felony connotes “a
substantial degree of force” or the use of “strong physical force.” Johnson, 559 U.S.
at 140. Although the term “physical force” is not defined by the ACCA, the Supreme
Court defines “physical force” as “violent force . . . capable of causing physical pain
or injury to another person.” Id. (using Webster’s Dictionary, the Oxford English
Dictionary and Black’s Law Dictionary as guideposts to define these terms).


       Irons asserts that Section 217.385, subdivision 1, is overinclusive because de
minimis force could support a conviction, and de minimis force is not a “violent
felony” for ACCA purposes. When determining whether a state offense is a “violent
felony” under the ACCA, we are bound by a state’s delineation of the elements. Id.
at 138. In State v. Mack, the Missouri Court of Appeals analyzed Mo. Rev. Stat.
§ 217.385, subd. 1, and its requirement that a defendant “commit[ ] violence.” 12
S.W.3d 349, 351-52 (Mo. Ct. App. 2000). The defendant in Mack was convicted of
violating Mo. Rev. Stat. § 217.385, subd. 1, for spitting in the face of a correctional
officer. Id. at 351. Although the statute requires the commission of “violence,” the
Missouri Court of Appeals observed that the statute does not define that term. Id.
After consulting multiple dictionaries, the Missouri Court of Appeals concluded that
“violence,” as used in Section 217.385, subdivision 1, requires an “exertion of any
physical force so as to injure or abuse.” Id. at 352 (quoting Webster’s Third New
International Dictionary 2554 (1993)). The Missouri Court of Appeals reversed the
defendant’s conviction for spitting in the face of a correctional officer because
equating spitting with violence “stretches the definition of violence too far.” Id. In
sum, the Missouri Court of Appeals expressly rejected a construction of Mo. Rev.



                                         -7-
Stat. § 217.385, subd. 1, that could support a conviction based on de minimis conduct.
See Mack, 12 S.W.3d at 352-53.


      Irons asserts that Mack “demonstrates that the State actively pursues criminal
charges against individuals even for de minimis conduct.” But this argument is not
germane to the task before us, which is one of statutory construction and application.
Mack addresses and defines the elements of Mo. Rev. Stat. § 217.385, subd. 1, and
we must compare those elements to the ACCA’s statutory definition of “violent
felony.” See Johnson, 559 U.S. at 138. The discretion exercised by the state
prosecutor’s office in deciding whom to charge is not relevant to this legal analysis.5


       Moreover, in United States v. Dudley, we held that “the use or threatened use
of physical force” is an inherent element of Mo. Rev. Stat. § 217.385, subd. 1, and
thus a “crime of violence” under the Guidelines. 230 F.3d 1364, 2000 WL 1286259,
at *1 (8th Cir. 2000) (per curiam) (unpublished table opinion). Our holding in
Dudley is equally applicable here when addressing whether a conviction under Mo.
Rev. Stat. § 217.385, subd. 1, is a “violent felony” under the ACCA. See United
States v. Williams, 537 F.3d 969, 971-72 (8th Cir. 2008) (explaining that the
definition of “crime of violence” under the Guidelines is identical to the definition of
“violent felony” under the ACCA). Irons argues that Descamps and Mathis v. United
States, 136 S. Ct. 2243 (2016), implicitly overruled Dudley because the Dudley court
      5
        Irons’s reliance on United States v. Bell, 840 F.3d 963 (8th Cir. 2016), is
similarly misguided. Citing Bell, Irons argues that there is a “realistic probability”
that Missouri may apply Section 217.385, subdivision 1, “to conduct falling short of
violence.” But in Bell, we relied on a Missouri Court of Appeals decision that
applied Missouri’s second-degree robbery statute to conduct that fell short of the
ACCA’s definition of violent conduct. See Bell, 840 F.3d at 966 (citing State v.
Lewis, 466 S.W.3d 629 (Mo. Ct. App. 2015)). Here, the application of Mack leads
to the opposite conclusion when analyzing Section 217.385, subdivision 1.



                                          -8-
improperly relied on the facts underlying the defendant’s conviction. But this
argument mischaracterizes Dudley’s analysis. Dudley did not analyze the facts
underlying the conviction; rather the analysis in Dudley rejected the defendant’s
assertion that the predicate offense conduct was not violent because the defendant
intended to “merely shove[ ]” the victim. Dudley, 2000 WL 1286259, at *1. Irons’s
attempts to distinguish Dudley are unavailing because we consider the elements of
the prior offense, not the particular manner in which the offense was committed.6


       The same conclusion is compelled independent of Dudley, however. Both the
ACCA and Mo. Rev. Stat. § 217.385, subd. 1, include the phrase “violence” without
defining the term. To define “violence,” both the United States Supreme Court and
the Missouri Court of Appeals relied on the same definitional sources and conducted
a comparable analysis to determine the term’s plain meaning. See Johnson, 599 U.S.
at 140 (defining “violent” using Webster’s Dictionary, the Oxford English Dictionary
and Black’s Law Dictionary); Mack, 12 S.W.3d at 352 (same). The predicate offense
of committing violence against another inmate, in violation of Mo. Rev. Stat. §
217.385, subd. 1, therefore satisfies the definition of a violent felony under the
ACCA. See 18 U.S.C. § 924(e)(2)(B); Johnson, 559 U.S. at 140-41. Accordingly,
a conviction under Mo. Rev. Stat. § 217.385, subd. 1, is a predicate violent felony
under the ACCA.




      6
        It is true that the Dudley court cited United States v. Wright, 957 F.2d 510, 521
(8th Cir. 1992), which endorsed examining the facts underlying a conviction if the
offense could be committed without violence. Dudley, 2000 WL 1286259, at *1. But
even if that proposition in Wright no longer stands, Dudley’s determination that “the
use or threatened use of physical force is an inherent element” of Mo. Rev. Stat.
§ 217.385, subd. 1, endures.



                                          -9-
                                          C.


       Irons also contends that his conviction under Mo. Rev. Stat. § 217.385, subd. 1,
is not a “crime of violence” under the Guidelines. See U.S.S.G. § 4B1.2(a)(1). This
Court has never recognized a distinction between the definition of a “violent felony”
under the ACCA and a “crime of violence” under the Guidelines, however. See Bell,
840 F.3d at 965 n.3. And a basis for doing so is not presented here. Because a
violation of Mo. Rev. Stat. § 217.385, subd. 1, is a predicate violent felony under the
ACCA, it also is a “crime of violence” under the Guidelines.


                                         III.


      Accordingly, we affirm the sentence imposed by the district court.
                         ______________________________




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