                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1953
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                              Matthew Trent Hataway

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                             Submitted: April 19, 2019
                              Filed: August 12, 2019
                                  ____________

Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.
                         ____________

LOKEN, Circuit Judge.

       Matthew Hataway pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district court1 concluded that
Hataway had at least three prior violent felony convictions, subjecting him to a


      1
       The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.
mandatory minimum fifteen-year sentence under the Armed Career Criminal Act
(“ACCA”), and at least two prior crime of violence convictions, which increased his
guidelines base offense level under USSG § 2K2.1(a)(2). The district court sentenced
Hataway to the bottom of the resulting advisory guidelines range -- 262 months --
followed by five years of supervised release. He appeals the sentence, arguing that
his prior Arkansas conviction for aggravated assault and South Carolina conviction
for pointing a firearm at another person are not ACCA “violent felonies” or “crimes
of violence” under the Guidelines. He also appeals a special condition of supervised
release requiring him to abstain from use of alcohol during substance abuse treatment.
We affirm.

                             I. The Sentencing Issues.

        The definitions of “violent felony” in the ACCA and “crime of violence” in the
Guidelines both include an offense 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)(i); USSG § 4B1.2(a)(1).2 Hataway argues the district court erred in
determining that his Arkansas conviction for aggravated assault and his South
Carolina conviction for pointing a firearm at another person satisfy these force
clauses. In making this determination, we use a formal categorical approach that
focuses on the elements of the state offense, rather than on the crime the defendant
in fact committed, to determine whether a violation “necessarily satisfies” the federal
definition of violent felony and crime of violence in the force clauses. See United
States v. Swopes, 886 F.3d 668, 670 (8th Cir. 2018) (en banc).

       If the state statute is “divisible,” meaning that it “list[s] elements in the
alternative, and thereby defines multiple crimes,” we apply a modified categorical


      2
       We generally interpret the identical ACCA and guidelines force clauses
interchangeably. See United States v. Brown, 916 F.3d 707, 708 (8th Cir. 2019).

                                         -2-
approach that examines a limited universe of judicial records “to determine what
crime, with what elements, a defendant was convicted of.” Mathis v. United States,
136 S. Ct. 2243, 2249 (2016). If conviction under that alternative required the use
or threatened use of physical force, then Hataway was convicted of a violent felony.
“Before we conclude that a state statute sweeps more broadly than the federal
definition of violent felony, there must be a realistic probability, not a theoretical
possibility, that the statute encompasses conduct that does not involve use or
threatened use of violent force.” Swopes, 886 F.3d at 671 (cleaned up).

       A. The Arkansas Aggravated Assault Conviction. The Presentence
Investigation Report recommended that Hataway be sentenced as an armed career
criminal based on three prior violent felony convictions, including a 2014 conviction
for aggravated assault in violation of Ark. Code Ann. § 5-13-204(a). The statute then
provided that -

      (a) A person commits aggravated assault if, under circumstances
      manifesting extreme indifference to the value of human life, he or she
      purposely:

             (1) Engages in conduct that creates a substantial danger of death
             or serious physical injury to another person;

             (2) Displays a firearm in such a manner that creates a substantial
             danger of death or serious physical injury to another person; or

             (3) Impedes or prevents the respiration of another person or the
             circulation of another person’s blood by applying pressure on the
             throat or neck or by blocking the nose or mouth of the other
             person.

In United States v. Jordan, 812 F.3d 1183, 1185-87 (8th Cir. 2016), we held that this
statute is divisible, and that a conviction under subsection (a)(1) is not a violent


                                         -3-
felony under the ACCA force clause. We have not previously considered subsection
(a)(2).3

       Hataway timely objected to the PSR’s violent felony recommendations, and the
parties filed pre-sentencing memoranda on the issues. The government submitted the
Arkansas state court charging document, a July 28, 2014 Information reciting that the
Prosecuting Attorney for Saline County -

      charges Matthew Trent Hataway with the crime(s) of AGGRAVATED
      ASSAULT as follows:

      COUNT 1: AGGRAVATED ASSAULT ARK. CODE ANN. § 5-13-
      204. The said defendant in SALINE COUNTY, did unlawfully and
      feloniously on or about March 28, 2014 point a firearm at [the victim]
      and threaten him with it.

The Information then quoted the entire statute, including subsections (b) and (c), and
alleged: “Thereby committing the offense of AGGRAVATED ASSAULT, said
offense being a CLASS D FELONY . . . .” The government asserted that the
Information “most closely tracks” subsection (a)(2) because it pleads the use of a
firearm, and argued that subsection (a)(2), unlike subsection (a)(1) at issue in Jordan,
satisfies the ACCA force clause.

        In a responsive memorandum, Hataway stated: “Based upon surplus language
that is contained in the information . . . it appears that Mr. Hataway was prosecuted
under . . . section (a)(2)” of the Arkansas aggravated assault statute. Hataway then
argued that subsection (a)(2) does not satisfy the force clause because it “only


      3
       In United States v. Pyles, 888 F.3d 1320 (8th Cir. 2018), we held that the
counterpart to subsection (a)(3) in the statute that criminalizes aggravated assault on
a family member, Ark. Code Ann. § 5-26-306(a)(3), is an ACCA violent felony.

                                          -4-
requires the government to prove that a defendant display a firearm in such a manner
that creates a substantial danger of death or serious physical injury to another person,”
not the use or threatened use of violent force.

      The district court ruled on ACCA issues in an Order issued the day before
sentencing. After noting that § 5-13-204(a) is a divisible statute, the court ruled:

      The criminal information states in pertinent part that Mr. Hataway “did
      unlawfully and feloniously on or about March 28, 2014 point a firearm
      at [victim] and threaten him with it.” The Court concludes, applying the
      modified categorical approach, that Mr. Hataway was convicted of
      felony aggravated assault under § 5-13-204(a)(2).

After reviewing prior decisions of this court applying the force clause, and relevant
Arkansas precedents, the court concluded that a conviction under § 5-13-204(a)(2)
“has as an element the use, attempted use, or threatened use of physical force against
the person of another.” At sentencing, counsel for Hataway preserved his ACCA
objections but did not argue the issue further.

      1. On appeal, Hataway argues for the first time that it is “impossible to tell just
by the judicial records that Mr. Hataway was convicted under subsection (a)(2)”
because the Information quoted the entire statute, on the facts alleged he could have
been charged under (a)(1) or (a)(2), and the sentencing order did not specify which
subsection he was convicted under. Therefore, the district court erred, Hataway
argues, because the judicial records lacked the certainty we required in United States
v. Horse Looking, 828 F.3d 744, 748 (8th Cir. 2016). Reviewing this forfeited
argument for plain error, we conclude it is without merit.

       When an over-inclusive but divisible statute is at issue, if the charging
document narrows the charge to an offense that qualifies as a violent felony under the
force clause, and the fact of conviction is not contested, the charging document “is

                                          -5-
sufficient evidence to support a finding that the defendant was necessarily convicted
of the narrower offense.” United States v. Vasquez-Garcia, 449 F.3d 870, 873 (8th
Cir. 2006); see United States v. Sanchez-Garcia, 642 F.3d 658, 662 (8th Cir. 2011).
“The issue is whether the charging document as a whole shows that the defendant was
charged only with [an ACCA violent felony].” United States v. Einfeldt, 138 F.3d
373, 378 (8th Cir.) (quotation omitted), cert. denied, 525 U.S. 851 (1998). On the
other hand, when the charging document cites an over-inclusive but divisible statute
or quotes the entire statute, as the Information at issue did, and simply alleges the
defendant violated it, the document has done no narrowing and is insufficient to
establish, using the modified categorical approach, that the defendant pleaded guilty
to and was necessarily convicted of an ACCA violent felony. See, e.g., United States
v. Martinez, 756 F.3d 1092, 1096-97 (8th Cir. 2014).

       Alleging the defendant violated a specific subsection of an over-inclusive
statute is not the only way an indictment or information can narrow the charge to an
offense that qualifies as an ACCA violent felony. In United States v. Vinton, for
example, the information alleged that Vinton violated an over-inclusive Missouri
assault statute by committing offense conduct that “precisely track[ed] the language
of” the subsection that satisfied the ACCA force clause. 631 F.3d 476, 485 (8th Cir.
2011). We held that Vinton’s Alford plea to that charge was sufficient to establish
a prior ACCA violent felony conviction. The Supreme Court adopted the same
analysis in United States v. Castleman, 134 S. Ct. 1405 (2014). The indictment
charged Castleman with violating a domestic violence statute by intentionally causing
bodily injury. Id. at 1409. The statute cross-referenced an over-inclusive divisible
statute defining assault. Id. at 1413-14. Applying the modified categorical approach,
the Court held that Castleman pleaded guilty to the relevant federal crime of violence
“[b]ecause Castleman’s indictment makes clear that the use of physical force was an
element of his conviction.” Id. at 1415.




                                         -6-
       Applying these controlling authorities, we conclude that the district court did
not commit plain error in finding that the specific facts alleged in the Information
establish “that Mr. Hataway was convicted of felony aggravated assault under § 5-13-
204(a)(2).” The information specifically charged Hataway with “point[ing] a firearm
at [the victim] and threaten[ing] him with it.” Display of a firearm is an element of
the offense in subsection (a)(2) but not the other two subsections. Horse Looking, on
which Hataway relies, is clearly distinguishable. In that case, the indictment
narrowed an over-inclusive assault statute by charging the defendant with violating
three of its five subsections. 828 F.3d at 746. But the defendant’s admissions at the
plea colloquy established that he could have been convicted under any of the three
subsections, including one that did not qualify under the ACCA force clause.
Applying the modified categorical approach, we concluded “the judicial record does
not establish that Horse Looking necessarily was convicted of an assault that has the
required element.” Id. at 749. In other words, unlike the Information in this case, the
charging document in Horse Looking, by specifically charging the defendant with
violating a non-qualifying subsection, failed to narrow the charge to an offense that
necessarily qualifies. The same was true of the criminal complaint in United States
v. Schneider, a case in which we applied our prior decision in Horse Looking. 905
F.3d 1088, 1091 (8th Cir. 2018).

       2. Hataway further argues, as he did in the district court, that § 5-13-204(a)(2)
is not an ACCA violent felony because it only requires the government to prove that
he “created a substantial danger of death or serious physical injury to another person.”
But “displaying an operational weapon before another in an angry or threatening
manner qualifies as threatened use of physical force” under the ACCA. United States
v. Pulliam, 566 F.3d 784, 787-88 (8th Cir. 2009). Likewise, “[i]ntentionally
point[ing] any firearm toward another, or display[ing] in a threatening manner any
dangerous weapon toward another” is categorically a crime of violence under the
guidelines force clause. See United States v. Maid, 772 F.3d 1118, 1120-21 (8th Cir.
2014). A conviction under § 5-13-204(a)(2) requires proof that the defendant

                                          -7-
expressly threatened or pointed the firearm at another person. See Wooten v. State,
799 S.W.2d 560, 561-62 (Ark. App. 1990). We agree with the district court that a
prior conviction under subsection (a)(2) is, categorically, a violent felony under the
ACCA force clause and a crime of violence under the guidelines force clause. Cf.
United States v. Meux, 918 F.3d 589, 591-92 (8th Cir. 2019).

       B. The South Carolina Conviction. Hataway argues that his prior conviction
for violating § 16-23-410 of the South Carolina Code was not an ACCA violent
felony or a guidelines crime of violence under the force clauses. In Reyes-Soto v.
Lynch, we held that a conviction under this statute is a crime of violence under the
force clause in 18 U.S.C. § 16(a). 808 F.3d 369, 371-73 (8th Cir. 2015). The force
clause in § 16(a) is identical to the force clauses in the ACCA and the Guidelines,
except that § 16(a) includes an offense “that has as an element the use, attempted use,
or threatened use of physical force against the person or property of another.”
However, the South Carolina statute at issue provides that “[i]t is unlawful for a
person to present or point at another person a loaded or unloaded firearm.” S.C.
Code Ann. § 16-23-410. In United States v. King, 673 F.3d 274, 279-80 (4th Cir.
2012), the Fourth Circuit, deferring to South Carolina appellate court decisions, held
that a prior conviction under § 16-23-410 is, categorically, a crime of violence under
the guidelines force clause In Reyes-Soto, we relied on King and the state court
decisions it applied in concluding that a conviction under § 16-23-410 is a crime of
violence under 18 U.S.C. § 16(a).

       On appeal, Hataway does not try to distinguish Reyes-Soto because it applied
the § 16(a) force clause. Rather, he argues that Reyes-Soto and King were “wrongly
decided” because they misinterpreted what should be controlling South Carolina state
court decisions in two respects -- whether a defendant can be convicted under § 16-
23-410 without directing a threat at another person, and whether the statute could be
construed to encompass negligent conduct. However, we considered and rejected
both these contentions in Reyes-Soto, 808 F.3d at 372-73. Therefore, Hataway’s

                                         -8-
argument is foreclosed by that decision -- “one panel cannot overrule an opinion filed
by another panel.” United States v. Bearden, 780 F.3d 887, 896 (8th Cir. 2015).

                        II. The Supervised Release Issue.

       Hataway argues the district court abused its discretion in imposing a special
supervised release condition requiring him to abstain from use of alcohol during
substance abuse treatment because there was no finding that he suffers from
alcoholism, or that use of alcohol contributed to the offense of conviction or would
impede efforts to rehabilitate him. It is undisputed that Hataway has a long history
of drug abuse. He began abusing methamphetamine at age 18, has multiple prior
drug-related arrests and convictions, and reported using methamphetamine daily
when interviewed after his arrest for this offense. We have previously held that a
district court did not err in imposing an alcohol abstinence condition when the
defendant was “drug dependent.” United States v. Forde, 664 F.3d 1219, 1222-24
(8th Cir. 2012). Here, the condition is not a total ban and is aimed at curbing
addictive behavior during substance abuse treatment. There was no abuse of the
district court’s substantial discretion to impose reasonable special conditions.

      The judgment of the district court is affirmed.
                     ______________________________




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