                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-1189
                        ___________________________

                            United States of America

                                      Plaintiff - Appellee

                                        v.

                  Richard Dale Ingram, Jr., also known as Mane

                                    Defendant - Appellant
                                  ____________

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

                          Submitted: January 13, 2020
                           Filed: February 12, 2020
                                 [Unpublished]
                                ____________

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
                              ____________

PER CURIAM.

       Richard Dale Ingram, Jr., pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, the
district court1 determined his base-offense level to be 24 under U.S.S.G.

      1
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
§ 2K2.1(a)(2), which prescribes this base-offense level for certain firearms-related
crimes (such as the crime to which Ingram pleaded guilty) when the defendant has
at least two prior felony convictions “of either a crime of violence or a controlled
substance offense.” The district court based this determination in part on Ingram’s
prior Arkansas conviction for first-degree terroristic threatening, which it concluded
was a conviction for a “crime of violence.” A four-level enhancement and a three-
level reduction resulted in a total offense level of 25. Given his criminal history
category VI and a statutory maximum of 10 years’ imprisonment, see 18 U.S.C.
§ 924(a)(2), Ingram’s advisory sentencing guidelines range was 110 to 120 months’
imprisonment, see U.S.S.G. ch. 5, pt. A; id. § 5G1.1(c)(1). The district court
sentenced Ingram to 110 months’ imprisonment.

       On appeal, Ingram argues the district court erred in two ways in treating his
first-degree terroristic threatening conviction, see Ark. Code § 5-13-301(a)(1)(A),
as a conviction for a “crime of violence” under U.S.S.G. § 2K2.1(a)(2).2 We review
de novo the district court’s interpretation and application of the guidelines, United
States v. Garcia, 946 F.3d 413, 417 (8th Cir. 2019), and its determination that a
conviction constitutes a crime of violence, United States v. Roman, 917 F.3d 1043,
1045 (8th Cir. 2019).

       First, Ingram argues that his terroristic threatening conviction cannot be a
crime of violence because the subsection of the Arkansas statute under which he was
convicted is indivisible and overbroad insofar as it criminalizes threats against
property in addition to threats against persons. See Ark. Code § 5-13-301(a)(1)(A).
A statute is indivisible if it lists only one set of elements for a single crime, even if
the statute lists alternative means of satisfying those elements, whereas a statute is


      2
          “Crime of violence” as it appears in § 2K2.1(a)(2) is defined in § 4B1.2(a),
see U.S.S.G. § 2K2.1 Application Note 1, to mean, as relevant here, “any offense
under . . . state law, 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,” id. § 4B1.2(a)(1). “Physical force” means “violent
force.” United States v. Rice, 813 F.3d 704, 706 (8th Cir. 2016).

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divisible if it lists alternative elements creating different crimes. United States v.
Crumble, 878 F.3d 656, 661 (8th Cir. 2018). When a statute is indivisible, we apply
the “categorical approach.” Id. Under this approach, if the state statute “criminalizes
more conduct than the federal definition of a ‘crime of violence,’” a conviction under
that statute does not count as a conviction for a crime of violence. United States v.
Barthman, 919 F.3d 1118, 1121 (8th Cir. 2019). Ingram thus argues that: (1) in
listing “death or serious physical injury or substantial property damage,” Arkansas
Code section 5-13-301(a)(1)(A) merely identifies alternative means of satisfying one
of the elements of the singular crime of first-degree terroristic threatening and so is
indivisible; and (2) under the categorical approach, a conviction under section 5-13-
301(a)(1)(A) is not a conviction for a crime of violence because the statute
criminalizes more conduct than just threats against persons (the only kind of threats
included within the federal definition of crime of violence).

       Our recent decision in United States v. Myers forecloses this argument, as we
held there that section 5-13-301(a)(1)(A) is divisible between threats “to cause death
or serious physical injury” and threats “to cause substantial property damage.” 928
F.3d 763, 766 (8th Cir. 2019), petition for cert. filed, --- U.S.L.W. --- (U.S. Nov. 22,
2019) (No. 19-6720). Myers binds us. See United States v. Hellems, 866 F.3d 856,
863 n.3 (8th Cir. 2017) (noting that a panel of this court is bound by and cannot
overrule an earlier decision by another panel of this court). Ingram does not dispute
that he was convicted under the statute for threats to cause death or serious physical
injury. Under Myers, this counts as a crime of violence under the modified
categorical approach. See 928 F.3d at 766-67.

       Second, Ingram argues that, even under the modified categorical approach,
the divisible portion of the statute under which he was convicted is not a crime of
violence because it does not require the use or threatened use of “violent force.” See
United States v. Thomas, 838 F.3d 926, 929 (8th Cir. 2016) (noting that “violent
force” means “force capable of causing physical pain or injury to another person”).
Once again, Ingram’s argument is foreclosed by controlling precedent. In United
States v. Boaz, we held that a conviction under section 5-13-301(a)(1)(A) for “threats


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of death or serious bodily injury” constituted a conviction for a “violent felony”
under the Armed Career Criminal Act (“ACCA”). 558 F.3d 800, 807 (8th Cir. 2009).
This means it also counts as a conviction for a crime of violence under the sentencing
guidelines. See United States v. Parker, 929 F.3d 940, 942 (8th Cir. 2019) (noting
that “violent felony” under the ACCA and “crime of violence” under the guidelines
are “interchangeable” in meaning). Even if Boaz did not control, Ingram’s
contention that “a threat of physical injury or death” under section 5-13-301(a)(1)(A)
does not require the threatened use of “violent force”—because, for instance, “a
person could be convicted of terroristic threatening under Arkansas law for
threatening to poison another person”—fails in light of Rice, where we concluded
that this kind of indirect force counts as “violent force” under the guidelines. 813
F.3d at 706.

       In summary, the Arkansas terroristic threatening statute under which Ingram
was previously convicted is divisible, and a conviction under that statute for
threatening to cause death or serious physical injury counts as a crime of violence
under the guidelines because such threats necessarily involve the use or threatened
use of violent force. Therefore, we affirm Ingram’s sentence.
                       ______________________________




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