                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3312
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                    Donald Boman

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                            Submitted: January 31, 2017
                              Filed: October 20, 2017
                                  ____________

Before SMITH,1 MURPHY, and MELLOY, Circuit Judges.
                           ____________

MELLOY, Circuit Judge.

       A jury convicted Donald Boman of possessing a firearm and ammunition as a
felon. The district court sentenced him to 262 months in prison. Boman appealed to
this court, raising a number of arguments, including that the district court erred in


      1
       The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
classifying him as an Armed Career Criminal under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). We affirmed the district court. United States v.
Boman, 810 F.3d 534 (8th Cir. 2016). Boman petitioned for writ of certiorari, and the
Supreme Court granted the petition, vacated the judgment, and remanded for further
consideration in light of Mathis v. United States, 136 S. Ct. 2243 (2016). Boman v.
United States, 137 S. Ct. 87 (2016) (Mem.).

                                                I.

       On November 2, 2013, Cedar Rapids Police Officers responded to a 911 call
regarding a shooting. Once the officers arrived at the scene of the shooting, Officer
Zach Jeffries spoke with Marcus Brown, who was walking across the street and
“thought he had been shot.” After conducting a pat-down of Brown, Officer Jeffries
determined Brown had not been shot nor did Brown have any weapons.

      Next, Officer Jeffries spoke with witnesses at the scene of the incident. From
those conversations, Officer Jeffries learned the suspected shooter, Boman, was
located inside the residence at 1800 Ridgewood Terrace Southeast. Sergeant Steven
Yardly contacted Boman, and Boman walked out of the residence. Officer Jeffries
then handcuffed Boman and placed him in the back of his squad car.

       Jamie Cooper, Boman’s girlfriend, lived with Boman and arrived at the scene
shortly thereafter. At that time, Cooper consented to the police officers’ search of her
home. During the search, Cooper was cooperative and directed the officers to her
bedroom dresser, which is where she said a firearm would be located. Cooper shared
the bedroom with Boman. The officers located the firearm and two boxes of
ammunition. One box contained fifty rounds of ammunition and the other box
contained forty rounds of ammunition. The magazine in the firearm was missing one
round.



                                          -2-
      Cooper’s daughters, Cheyenne Cinkan and Jade Hasson, also lived at the
residence, along with Cinkan’s children. Cinkan thus had two connections to the
relevant actors in this case because Brown was her boyfriend. Because Brown had
physically abused Cinkan, she had recently moved to the residence shared by Boman
and Cooper. In fact, earlier on November 2, 2013, Brown and Cinkan got into an
argument at Boman’s and Cooper’s home. Soon thereafter, the argument ensued
between Boman and Brown.

       Sarah Michaels testified to witnessing the altercation. She said it involved two
African American men, one taller than the other. The shorter man yelled from across
the street, “Do it nigger! Do it nigger!” The taller African-American man then ran
across the street, hit the other man, reached for his hip, and pointed his hand at the
man on the ground. Michaels then heard a pop noise.2 Michaels and Cinkan called
911 following this incident.

       On March 18, 2014, a grand jury returned a one-count superseding indictment
against Boman charging him with unlawfully possessing a firearm and ammunition
as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Following
a two-day jury trial, the jury found Boman guilty of possessing a firearm as a felon.
The initial Presentence Investigation Report (“PSR”) recommended a four-level
sentence enhancement, pursuant to United States Sentencing Guidelines (“U.S.S.G.”)
§ 2K2.1(b)(6)(B), and determined that Boman qualified as an Armed Career Criminal
under the ACCA. Boman objected to the enhancement and his status as an Armed
Career Criminal. As to his status under the ACCA, Boman argued that his prior
convictions were not separate and distinct criminal episodes. The district court
overruled Boman’s objections and calculated a Guidelines range of 262–327 months’
imprisonment. Ultimately, the court sentenced Boman to 262 months’ imprisonment.


      2
        Two other witnesses testified at Boman’s trial that they heard a single loud
noise on the afternoon of November 2, 2013.

                                         -3-
       On appeal, Boman raised five arguments. In his first three arguments, Boman
challenged the district court’s evidentiary rulings. First, Boman claimed the district
court improperly excluded the introduction of “reverse” Federal Rule of Evidence
404(b) evidence relating to a criminal conviction of the victim, Marcus Brown.
Second, Boman argued the district court improperly excluded evidence relating to
proof of Brown’s motive and bias against Boman under Federal Rule of Evidence 403.
Third, Boman asserted the district court improperly admitted Brown’s 911 phone call
under the excited-utterance exception of Federal Rule of Evidence 803(2). We held
that the district court did not abuse its discretion in making these evidentiary rulings.
Boman, 810 F.3d at 538–41. These holdings were not disturbed by the Supreme
Court’s remand.

       Boman’s last two arguments raised sentencing issues. First, Boman challenged
his status as an Armed Career Criminal. Initially, he argued that his prior convictions
under 18 U.S.C. § 924(c)(1) for Use of a Firearm During the Commission of a Violent
Crime were not separate and distinct criminal episodes, as required by the ACCA. In
a supplemental brief, however, Boman relied on the Supreme Court’s opinion in
Johnson v. United States, 135 S. Ct. 2551 (2015), to argue that his prior convictions
were not predicate offenses under the ACCA because they were not “violent felonies”
as defined in 18 U.S.C. § 924(e)(2)(B)(i). Applying the modified categorical
approach, we held that Boman’s convictions qualified as violent felonies. Boman, 810
F.3d at 541–43. We also held that Boman’s convictions were “discrete criminal
episodes.” Id. at 543–44.

      Boman’s second sentencing argument challenged the four-level enhancement
under U.S.S.G. § 2K2.1(b)(6)(B) for use or possession of a firearm or ammunition in
connection with another felony offense. Boman argued that the enhancement was
improper because the government did not prove by a preponderance of the evidence
that Boman committed a felony offense and did not disprove Boman’s justification



                                          -4-
defense. We did not address these arguments because, due to Boman’s status as an
Armed Career Criminal, the enhancement did not affect his sentence. Id. at 544.

       Boman filed a petition for writ of certiorari with the Supreme Court. Following
the Court’s decision in Mathis, which rejected this court’s approach to divisibility, the
Court granted Boman’s petition and remanded the case. On remand, our focus is
limited to whether Boman’s prior convictions under 18 U.S.C. § 924(c)(1) qualify as
violent felonies under the ACCA. Because we conclude they do not qualify, we must
also address whether the district court erred in applying the four-level enhancement
pursuant to U.S.S.G. § 2K2.1(b)(6)(B).

                                             II.

                               A. Armed Career Criminal

        Normally, “[w]e review de novo whether a prior conviction is a predicate
offense under the ACCA.” United States v. Abbott, 794 F.3d 896, 897 (8th Cir. 2015)
(per curiam) (quoting United States v. Humphrey, 759 F.3d 909, 911 (8th Cir. 2014)).
Because, however, Boman did not object to his status under the ACCA on the basis
now before us, we review for plain error. See United States v. Pirani, 406 F.3d 543,
549 (8th Cir. 2005). To succeed on plain error review, Boman must show: (1) an
error; (2) the error is plain; (3) the error affects his substantial rights; and (4) “the error
‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” United States v. Olano, 507 U.S. 725, 732 (1993) (alteration in
original) (quoting United States v. Young, 470 U.S. 1, 15 (1985)).

      At sentencing, the district court found Boman was an Armed Career Criminal
because he had three prior convictions for violent felonies. See 18 U.S.C. § 924(e).
Boman has a 1995 conviction for Assault within Maritime and Territorial Jurisdiction,
which he concedes is a violent felony under the ACCA. Boman argues, however, that

                                             -5-
his two 1992 convictions under § 924(c)(1) do not qualify as predicate offenses under
the force clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(i).

      In 1992, § 924(c)(1) stated:

      Whoever, during and in relation to any crime of violence or drug
      trafficking crime (including a crime of violence or drug trafficking crime
      which provides for an enhanced punishment if committed by the use of
      a deadly or dangerous weapon or device) for which he may be
      prosecuted in a court of the United States, uses or carries a firearm, shall,
      in addition to the punishment provided for such crime of violence or
      drug trafficking crime, be sentenced to imprisonment for five years . . .
      .

Section 924(c) is a predicate offense under the ACCA only if it meets the force clause
of the ACCA’s definition of violent felony. Under that clause, a prior offense is a
violent felony if it “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)(i).

       To determine if a prior conviction is a violent felony under the ACCA, courts
look to the elements of the crime of conviction, not the underlying facts. See Mathis,
136 S. Ct. at 2248. If a statute lists alternative methods of committing a crime, courts
must determine if the alternatives are elements or means. Id. at 2256. “‘Elements’ are
the ‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must
prove to sustain a conviction.’” Id. at 2248 (quoting Black’s Law Dictionary 634
(10th ed. 2014)). In contrast, “means” “need neither be found by a jury nor admitted
by a defendant.” Id. “If they are elements, the court should do what we have
previously approved: review the record materials to discover which of the enumerated
alternatives played a part in the defendant’s prior conviction . . . . But if instead they
are means, the court has no call to decide which of the statutory alternatives was at
issue in the earlier prosecution.” Id. at 2256.


                                           -6-
       The elements of § 924(c)(1) are: (1) the use or carrying of a firearm; (2) during
and in relation to a crime of violence or drug trafficking crime. United States v.
Rodriguez-Moreno, 526 U.S. 275, 280 (1999). In this case, Boman argues that the
second element is indivisible, and that “crime of violence” and “drug trafficking
crime” describe alternative means. Specifically, Boman contends they are means
because a judge rather than a jury determines whether the underlying offense is a
crime of violence or drug trafficking crime. It is true that “an ACCA penalty may be
based only on what a jury ‘necessarily found’ to convict a defendant (or what he
necessarily admitted).” Mathis, 136 S. Ct. at 2255 (quoting Descamps v. United
States, 133 S. Ct. 2276, 2287, 2290 (2013)). However, even if a judge determines
whether the underlying offense is a crime of violence or drug trafficking offense, the
jury still must find “that [the defendant] committed all the acts necessary to be subject
to punishment for” the underlying offense. Rodriguez-Moreno, 526 U.S. at 280.

       In addition to considering whether a judge or jury makes the findings, courts
may also look to the statute of conviction or, if necessary, “peek at the [record]
documents . . . for the sole and limited purpose of determining whether [the listed
items are] element[s] of the offense.” Mathis, 136 S. Ct. at 2256–57 (alterations in
original) (quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015)); see also
United States v. McFee, 842 F.3d 572, 575 (8th Cir. 2016). The language of
§ 924(c)(1) is not particularly helpful in determining whether the statute lists
alternative means or elements. Though crime of violence and drug trafficking offense
are separated by the disjunctive “or,” “the use of the word ‘or’ in a statute merely
signals that we must determine whether the alternatives are elements or means; it is
not determinative one way or another.” United States v. McMillan, 863 F.3d 1053,
1058 (8th Cir. 2017). In this case, a peek at the record supports a finding that
§ 924(c)(1) contains alternative elements rather than means because Boman’s
indictment references only a crime of violence. See Mathis, 136 S. Ct. at 2257 (“[A]n
indictment . . . could indicate, by referencing one alternative term to the exclusion of
all others, that the statute contains a list of elements, each one of which goes toward

                                          -7-
a separate crime.”). Thus, we must determine whether using or carrying a gun during
and in relation to a crime of violence is a predicate offense under the ACCA.

       The government contends that for ACCA purposes, the modified categorical
approach applies to convictions under § 924(c)(1). Using the modified categorical
approach, the government argues, a court may review the record materials to
determine the specific crime of violence underlying the § 924(c)(1) conviction. The
court can then determine whether that specific crime of violence is a violent felony for
ACCA purposes. We disagree.

       Having determined that Boman’s 1992 convictions were for using or carrying
a gun during or in relation to a crime of violence, we must look to the statutory
definition of crime of violence. In 1992, § 924(c)(3) stated:

      For purposes of this subsection the term “crime of violence” means an
      offense that is a felony and --

      (A) has as an element the use, attempted use, or threatened use of
      physical force against the person or property of another, or

      (B) that by its nature, involves a substantial risk that physical force
      against the person or property of another may be used in the course of
      committing the offense.

Thus, we must decide whether this definition is divisible to determine whether
Boman’s convictions qualify as predicate offenses under the ACCA.

      We conclude that § 924(c)(3) is not divisible. First, a judge, not a jury, decides
whether an underlying offense constitutes a crime of violence under either
§ 924(c)(3)(A) or § 924(c)(3)(B). Second, the definition of crime of violence as it is
used in § 924(c)(1) is contained in a separate statutory section, § 924(c)(3). See
McFee, 842 F.3d at 575 (“The fact that the definition of ‘crime of violence’ is

                                          -8-
contained in a separate section of [§ 924(c)] thus provides textual support for the
conclusion that the term ‘crime of violence’ is intended to be an element of the crime
and that the [definition of crime of violence in § 924(c)(3)] contains alternative means
by which that element may be committed.”). Finally, a peek at the record materials
does not indicate which subsection of § 924(c)(3) applied to Boman’s underlying
offense. We therefore apply the categorical approach to determine whether Boman’s
conviction for using or carrying a gun during and in relation to a crime of violence is
a predicate offense.

       Under the categorical approach, a § 924(c)(1) conviction is not a predicate
offense for ACCA purposes. In Johnson v. United States, the Supreme Court held that
the residual clause of the ACCA was unconstitutional. 135 S. Ct. 2551 (2015). This
court, however, has upheld the similarly-worded residual clause in § 924(c)(3)(B).
United States v. Prickett, 839 F.3d 697, 699–700 (8th Cir. 2016) (per curiam).
Because the residual clause in § 924(c)(3)(B) is still valid, a crime that no longer
qualifies as a predicate offense under the ACCA as a violent felony may still qualify
as a crime of violence under § 924(c). For example, a defendant may be convicted
under § 924(c) for use of a firearm in furtherance of a crime of violence where the
underlying offense is conspiracy to commit murder for hire under 18 U.S.C. § 1958.
United States v. Taylor, 813 F.3d 1139, 1148 (8th Cir. 2016). However, “[t]o convict
for conspiracy to commit murder for hire under 18 U.S.C. § 1958, the government
must prove that the defendant ‘(1) travelled or caused another to travel in interstate
commerce, (2) with the intent that a murder be committed, (3) for hire.’” Id. (quoting
United States v. Delpit, 94 F.3d 1134, 1149 (8th Cir. 1996)). Thus, murder for hire
can only constitute a crime of violence under the residual clause of § 924(c)(3)(B),
and not under the force clause of § 924(c)(3)(A), because it does not have “as an
element the use, attempted use, or threatened use of physical force against the person
or property of another.” 18 U.S.C. § 924(c)(3)(A). See United States v. Herr, No.
16-CR-10038-IT, 2016 WL 6090714, at *4 (D. Mass. Oct. 18, 2016) (“A person may
thus violate 18 U.S.C. § 1958 by mere engagement in interstate commerce with the

                                          -9-
intent that statute forbids. Because this . . . statute can be violated without proof of
‘use,’ ‘attempted use,’ or ‘threatened use of physical force,’ the murder-for-hire
statute does not have as a required ‘element the use, attempted use, or threatened use
of physical force against the property of another.’”). Accordingly, a conviction under
18 U.S.C. § 1958 would not qualify as a predicate offense under the ACCA’s
definition of violent felony even though it still qualifies as a crime of violence to
support a conviction under § 924(c).

       Further, both clauses of the definition of crime of violence in § 924(c)(3)
include force against the property of another, not just the person of another. Under
the ACCA, however, a felony is only a violent felony if it involves the use of force
against the person of another, not the property of another. See 18 U.S.C. § 924(e); see
also Johnson v. United States, 559 U.S. 133, 140 (2010). And we have previously
held that “the phrase ‘person or property’ lists two alternative means of committing”
an offense. McMillan, 863 F.3d at 1058. Thus, § 924(c)’s definition of crime of
violence is not divisible and sweeps broader than the definition of violent felony under
the ACCA. And because a crime that would not qualify as a violent felony under the
ACCA may still qualify as a crime of violence under § 924(c), a conviction for the use
of a firearm during and in relation to a crime of violence is not an ACCA predicate
offense under the categorical approach. See McFee, 842 F.3d at 575 (stating that
where a statute lists crimes that qualify as violent crimes, some of which qualify as
ACCA predicate offenses and some of which do not, a conviction under that statute
“is not an ACCA predicate offense under the categorical approach”). Accordingly,
Boman does not have three predicate offenses and the district court plainly erred in
sentencing him as an Armed Career Criminal.

      Additionally, the error affects Boman’s substantial rights because without the
ACCA sentence enhancement, Boman’s statutory maximum sentence is ten years’
imprisonment. Compare 18 U.S.C. § 924(a)(2), with id. § 924(e)(1). And, pursuant
to U.S.S.G. §§ 4B1.4(b)(3)(A) and 4B1.4(c)(2), as an Armed Career Criminal,

                                         -10-
Boman’s base offense level was 34 and his criminal history category was VI. Without
the Armed Career Criminal designation, however, Boman’s criminal history category
is IV and his base offense level is either 24 or 28, depending on whether the U.S.S.G.
§ 2K2.1(b)(6)(B) sentence enhancement applies, as discussed below. Thus, without
the ACCA sentence enhancement, Boman’s advisory Guidelines range is either 77–96
months’ imprisonment or 110–1203 months’ imprisonment. Finally, Boman’s
sentence of 262 months’ imprisonment, more than ten years longer than he otherwise
would have received, seriously affects the fairness and integrity of judicial
proceedings. See United States v. Johnson, 416 F.3d 884, 886 (8th Cir. 2005).

                             B. Sentence Enhancement

      Boman’s PSR recommended a four-level sentence enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B). At sentencing, the district court overruled Boman’s timely
objection to the recommended enhancement. Boman appeals, arguing that the record
does not support the § 2K2.1(b)(6)(B) enhancement.

       Under § 2K2.1(b)(6)(B), the four-level sentence enhancement applies if a
defendant “used or possessed any firearm or ammunition in connection with another
felony offense.” “In applying § 2K2.1(b)(6) when the defendant has not been
convicted of another state or federal felony offense, the district court must find by a
preponderance of the evidence that another felony offense was committed, and that
use or possession of the firearm ‘facilitated’ that other felony.” United States v.
Littrell, 557 F.3d 616, 617 (8th Cir. 2009). “When the issue is whether the evidence
supports these findings, we review the district court’s determination for clear error.”
United States v. Holm, 745 F.3d 938, 940 (8th Cir. 2014).

      3
        Normally, for a base level offense of 28 and criminal history category of IV
the advisory Guidelines range is 110–137 months’ imprisonment. However, because
there is a ten-year statutory maximum sentence, the advisory Guidelines range
applicable to Boman is 110–120 months’ imprisonment.

                                         -11-
       The Guidelines define “another felony offense” as “any federal, state, or local
offense, other than the explosive or firearms possession or trafficking offense,
punishable by imprisonment for a term exceeding one year, regardless of whether a
criminal charge was brought, or a conviction obtained.” U.S.S.G. § 2K2.1 cmt.
n.14(C). In this case, the PSR recommended the § 2K2.1 enhancement based on the
belief that Boman’s actions constituted Intimidation with a Dangerous Weapon, in
violation of Iowa Code § 708.6. A person commits Intimidation with a Dangerous
Weapon, a class “C” felony, “when a person (1) has the specific intent to injure or
provoke fear or anger in another; (2) shoots, throws, launches, or discharges a
dangerous weapon; (3) within an assembly of people; and (4) the people are placed
in reasonable apprehension of serious injury.” State v. Ross, 845 N.W.2d 692, 699
(Iowa 2014); see also Iowa Code § 708.6.

       First, Boman argues that the district court erred in finding that he discharged
a firearm in the direction of Brown. We conclude the district court did not clearly err
in determining by a preponderance of the evidence that Boman discharged a firearm
in Brown’s direction. See United States v. Phillips, 506 F.3d 685, 688 (8th Cir. 2007)
(“When the proposed enhancement is based upon an offense for which there was no
prior conviction, . . . ‘the government must prove at sentencing (by a preponderance
of the evidence) that the defendant committed it.’” (quoting United States v. Raglin,
500 F.3d 675, 677 (8th Cir. 2007)). At trial, Michaels testified that she saw two
African American men arguing on opposite sides of the street before one of them
crossed the street, hit the other man, reached for his hip, and pointed his hand at the
other man who had fallen to the ground. And Cinkan testified that Brown had crossed
the street and Boman followed him. Both Cinkan and Michaels then heard a loud
noise. Brown testified that he heard a loud noise that sounded like a gunshot, thought
he had been shot, and had to check himself for bullet wounds after his confrontation
with Boman. Boman argues that there was no evidence that he had a gun out on the
street and that it was more likely that the gunshot came from Brown’s gun. No
evidence was introduced at trial to support this argument and, in fact, an officer at the

                                          -12-
scene checked Brown for weapons and did not find any. Additionally, when officers
located the firearm and ammunition inside Boman’s home, the firearm’s magazine
was missing a round. Thus, the fact that Boman discharged a firearm in Brown’s
direction was supported by a preponderance of the evidence.

        Second, Boman argues that he did not commit the offense of Intimidation with
a Dangerous Weapon because his actions were justified. A defendant may raise
justification as a defense under Iowa Code § 704.3, which permits “a defendant to use
reasonable force when the defendant reasonably believes that such force is necessary
to defend himself or herself from any imminent use of unlawful force.” State v.
Stallings, 541 N.W.2d 855, 857 (Iowa 1995). “If there is substantial evidence of
self-defense, the State has the burden of proving the defendant was not justified in his
use of force in his defense.” Id. Here, there was not substantial evidence of self-
defense, and the district court did not clearly err in finding that Boman’s discharge of
the firearm was not justified. No evidence was presented at trial to support a finding
that Boman was acting in self-defense or in the defense of others. And there was no
evidence that Brown was armed. At sentencing, Cooper testified that Brown had
assaulted her daughter before Boman discharged the firearm. Cooper, however, was
not present during the incident, and the district court did not clearly err in finding that
Cooper’s testimony was hearsay and conflicted with disinterested witness testimony.

       As a result, the district court did not clearly err in finding that Boman
committed the Iowa felony offense of Intimidation with a Dangerous Weapon and that
Boman’s actions were not justified. Accordingly, the district court did not clearly err
in finding that Boman possessed the firearm in connection with a felony offense and
the § 2K2.1(b)(6)(B) sentence enhancement was appropriate.




                                           -13-
                                      III.

      Based on the foregoing discussion, we conclude that Boman is not an Armed
Career Criminal. We further conclude that a four-level sentence enhancement is
appropriate. Accordingly, Boman’s base offense level should have been 28 and his
criminal history category should have been IV. We thus reverse and remand for
resentencing in accordance with this opinion.




                                     -14-
