                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1914
                         ___________________________

                                 Steven Troy Kelly

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                             United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                          Submitted: December 16, 2015
                              Filed: April 11, 2016
                                 ____________

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

WOLLMAN, Circuit Judge.

       Steven Troy Kelly pleaded guilty to conspiracy to distribute 500 grams or more
of a mixture and substance containing methamphetamine and 50 grams or more of
actual methamphetamine, 21 U.S.C. §§ 841(b)(1)(A), 846, and to being a felon in
possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court1 applied
a career-offender sentence enhancement as recommended in the presentence
investigation report (PSR), based on Kelly’s two prior convictions for violent crimes.
Kelly did not directly appeal his sentence. He filed a petition for a writ of habeas
corpus seeking to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255,
claiming that he had been denied his Sixth Amendment right to effective assistance
of counsel during sentencing. The district court denied Kelly’s petition and granted
a certificate of appealability. We affirm.

                                            I.

       Kelly was arrested for his involvement in a conspiracy to distribute
methamphetamine from California to Iowa. Kelly entered into a written plea
agreement and pleaded guilty to the crimes set forth above. The PSR calculated a base
offense level of 31 and recommended application of the career-offender enhancement
under § 4B1.1 of the U.S. Sentencing Guidelines Manual (Guidelines or U.S.S.G.),
for Kelly’s two prior felony convictions for crimes of violence. This enhancement
raised Kelly’s offense level from 31 to 37 and his criminal history category from IV
to VI. The two predicate convictions were for robbery in the second degree in May
2000, Iowa Code §§ 711.1, 711.3, and for domestic-abuse assault in January 2011,
Iowa Code § 708.2A(3)(b). The PSR also recommended a 3-level downward
departure for acceptance of responsibility, which resulted in a total offense level of 34.
Based on a total offense level of 34 and a criminal history category of VI, the PSR
calculated a Guidelines sentencing range of 262 to 327 months’ imprisonment.
Without the career-offender enhancement, Kelly’s total offense level would have been
28, his criminal history category would have been IV, and his resultant Guidelines
sentencing range would have been 110 to 137 months’ imprisonment.


      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

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        Although represented by counsel at sentencing, Kelly himself requested a
continuance, arguing that his 2011 domestic-abuse assault conviction was a
misdemeanor, not a felony, conviction. The district court denied Kelly’s request,
noting that his conviction constituted a felony under the Guidelines because it was
punishable by a sentence of more than one year. The district court told Kelly, “You
can preserve the issue, so if you want to file a post—an appeal or post-trial motion to
reconsider that particular issue and have me issue an order on it, I’ll be happy to do
it.” Kelly’s counsel did not object to the calculations in the PSR. Instead, she argued
that, in addition to granting the government’s motion for substantial assistance under
U.S.S.G. § 5K1.1, the court should grant a downward variance to place Kelly’s
sentence below that of another co-conspirator who had played a more significant role
in the conspiracy. She argued that such a variance was necessary “to serve the needs
of justice, the needs of the community, the needs of the Defendant and to be fair,”
noting that the co-conspirator had received a sentence of 176 months.

      The district court adopted the PSR’s recommendations. It then granted a
downward variance of 32 months in light of Kelly’s more limited role in the
conspiracy; granted the government’s motion for substantial assistance, further
reducing Kelly’s sentence by 86 months; and sentenced Kelly to 144 months’
imprisonment, to be followed by five years of supervised release.

       Kelly did not directly appeal his sentence. He instead filed a pro se § 2255
petition, alleging that his counsel had rendered ineffective assistance at sentencing by
failing to object to the application of the career-offender enhancement. He argued that
his prior conviction for domestic-abuse assault did not qualify as a crime of violence
under U.S.S.G. § 4B1.2(a), that the grounds for this objection would have been
obvious had his attorney conducted a basic search of relevant Eighth Circuit case law,
and that because his counsel’s failure to object served no tactical purpose, it could be
explained only as either ignorance or negligence. The district court denied Kelly’s
petition without a hearing, noting that the law was “complicated and evolving” at the

                                          -3-
time of Kelly’s conviction. The court concluded that in light of the unsettled nature
of the law, Kelly’s counsel was not constitutionally deficient in not raising an
objection to the career-offender enhancement. The court granted a certificate of
appealability, concluding that Kelly “raised an issue that is adequate to deserve
encouragement to proceed further.”

                                         II.

       “We review de novo the denial of a § 2255 motion and review any underlying
factual findings for clear error.” Hamberg v. United States, 675 F.3d 1170, 1172 (8th
Cir. 2012). We evaluate ineffective-assistance-of-counsel claims using the standard
set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). “First, the defendant
must show that counsel’s performance was deficient. . . . Second, the defendant must
show that the deficient performance prejudiced the defense.” Id. If a defendant fails
to establish that counsel’s performance was deficient, we need not address whether
the defendant suffered prejudice. Id. at 697.

       To demonstrate deficient performance, a defendant “must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688. “[W]e
must ‘judge the reasonableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct.’” King v. United States,
595 F.3d 844, 853 (8th Cir. 2010) (quoting Ruff v. Armontrout, 77 F.3d 265, 268 (8th
Cir. 1996)). Our task is “to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689. Because our scrutiny of counsel’s performance is “highly
deferential,” there is a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 687, 689 (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)).

                                         -4-
      Under § 4B1.1 of the Guidelines, a defendant is a career offender if

      (1) the defendant was at least eighteen years old at the time the defendant
      committed the instant offense of conviction; (2) the instant offense of
      conviction is a felony that is either a crime of violence or a controlled
      substance offense; and (3) the defendant has at least two prior felony
      convictions of either a crime of violence or a controlled substance
      offense.

Section 4B1.2(a) defines a crime of violence as follows:

      [A]ny offense under federal or state law, punishable by imprisonment for
      a term exceeding one year that (1) has as an element the use, attempted
      use, or threatened use of physical force against the person of another, or
      (2) is a burglary of a dwelling, arson, or extortion, involves use of
      explosives, or otherwise involves conduct that represents a serious
      potential risk of physical injury to another.

We have interpreted the “physical force” element of § 4B1.2(a)(1) as requiring the use
of violent force. United States v. Ossana, 638 F.3d 895, 900 (8th Cir. 2011) (citing
Johnson v. United States, 559 U.S. 133, 139-41 (2010)). In determining whether a
predicate offense was one in which violent force was an element, we generally follow
the categorical approach. Id. at 899. Under the categorical approach, we look not at
the particular facts giving rise to the challenged conviction but at the statutory
elements of the underlying offense. Id. But where a statute is overbroad, one, that is,
which encompasses multiple crimes, some of which are non-violent, we apply the
modified categorical approach. Id. at 899-900. Under that approach, the court may
look at certain documents to determine for which crime the defendant actually pleaded
guilty. Shepard v. United States, 544 U.S. 13, 20-21 (2005) (describing permissible
documents); see also Ossana, 638 F.3d at 899-900. We then determine whether
violent force was a necessary element of that crime. Ossana, 638 F.3d at 899-900.



                                         -5-
      Iowa Code section 708.2A(3)(b) is an enhanced assault statute that imposes
increased penalties for conduct that violates Iowa’s simple assault statute and which
is committed against someone within a domestic relationship.

      The simple-assault statute provides,

      A person commits an assault when, without justification, the person does
      any of the following:

      a. Any act which is intended to cause pain or injury to, or which is
      intended to result in physical contact which will be insulting or offensive
      to another, coupled with the apparent ability to execute the act.

      b. Any act which is intended to place another in fear of immediate
      physical contact which will be painful, injurious, insulting, or offensive,
      coupled with the apparent ability to execute the act.

      c. Intentionally points any firearm toward another, or displays in a
      threatening manner any dangerous weapon toward another.

Iowa Code § 708.1(2)(a)-(c). In the written plea agreement for his predicate domestic-
abuse-assault conviction, Kelly admitted that “on 12-5-2010, in Polk Co. IA, I did
assault [my daughter’s mother] while she was driving a car. I threw a milk bottle at
the car and hit the car with a shovel. I put her in fear of contact with me.” Kelly
argues that his plea agreement makes clear that he pleaded guilty to a violation of
section 708.1(2)(b) and that the resulting conviction was not for a crime of violence,
because section 708.1(2)(b) can be violated merely by placing another “in fear of
immediate physical conduct which will be . . . insulting or offensive.”

       Kelly argues that an objectively reasonable attorney would have raised an
objection to the career-offender enhancement on the basis of our decision in United
States v. Ossana. In that case, we reversed a district court’s application of a sentence
enhancement under U.S.S.G. § 2K2.1(a)(4)(A), which applies to a defendant charged

                                          -6-
with being a felon in possession of a firearm if the defendant has a prior felony
conviction for a “crime of violence.” Ossana, 638 F.3d at 897.2 The district court
based its application of the enhancement on Ossana’s prior Arizona-state-court
conviction for aggravated assault. Id. The Arizona statute provides that a violation
can occur in one of three ways: “(1) [i]ntentionally, knowingly, or recklessly causing
any physical injury to another person; or (2) [i]ntentionally placing another person in
reasonable apprehension of imminent physical harm; or (3) [k]nowingly touching
another person with the intent to injure, insult, or provoke such person.” Ossana, 638
F.3d at 897 n.1 (quoting Ariz. Rev. Stat. § 13-1203). We concluded first that the
modified categorical approach applied because the statute included at least two
offenses that did not require violent force. We reasoned that the statute could be
violated with non-violent “contact by ‘[k]nowingly touching another person with the
intent to . . . insult or provoke such person.’” Id. at 900 (alterations in original)
(quoting Ariz. Rev. Stat. § 13-1203(A)(3)). We further reasoned that the statute could
also be violated “with merely reckless behavior if an actual physical injury results,”
concluding that a crime with a mens rea of recklessness was not a crime of violence.
Id. at 900, 903 (citing Ariz. Rev. Stat. § 13-1203(A)(1)). Applying the modified
categorical approach, we reviewed the relevant underlying documents and concluded
that they demonstrated only that Ossana had not been convicted of conduct involving
“merely insulting or provocative contact as described in section 13-1203(A)(3),” id.
at 904, because he had used a vehicle to commit the assault, and that such non-violent
contact by a car would “place that person in fear of violent force thereby bringing the
offense within a different, qualifying statutory subsection.” Id. (citing Ariz. Rev. Stat.
§ 13-1203(A)(2)). We remanded, however because the documents included in the
record did not eliminate the possibility that Ossana had been convicted of the non-
qualifying reckless-driving offense under section 13-1203(A)(1). Id.

      2
      The meaning of “a crime of violence” under § 2K2.1(a)(4)(A) is the same as
the meaning “given that term in § 4B1.2(a) and Application Note 1 of the
Commentary to § 4B1.2.” Ossana, 638 F.3d at 898; see also U.S.S.G. § 2K2.1 cmt.
n.1.

                                           -7-
       Kelly argues that Ossana provides a clear roadmap for a successful objection
to the use of his Iowa domestic-abuse-assault conviction as a predicate offense. He
contends that Iowa Code § 708.1(2)(b) is similar to the Arizona statute in Ossana,
because both could be violated by insulting or offensive contact. But we did not hold
in Ossana that all convictions under subsection 13-12-1203(A)(3) of the Arizona
statute (intent to injure, insult, or provoke) could not qualify as a predicate offense.
We said nothing about whether the modified categorical approach would permit a
court to further parse the statute and determine whether a defendant had been
convicted under that subsection of “[k]nowingly touching another person with the
intent to injure . . . such person.” We reasoned only that the “subdivision
criminalizing merely insulting or provocative contact” did not include as an element
the use of violent force. Id. at 904. Thus, it does not ineluctably follow from Ossana
that Kelly’s attorney’s failure to object to his sentence enhancement can be explained
only as a failure to conduct adequate research, for the applicable case law at the time
suggested that any objection to the sentence enhancement would have been futile.

       Although Ossana did not address whether the modified categorical approach
permits parsing of non-enumerated alternative elements contained within a statutory
subsection, other cases that were applicable at Kelly’s sentencing suggested that the
modified categorical approach could be applied expansively to any overinclusive
statute. See United States v. Parks, 620 F.3d 911, 914 (8th Cir. 2010) (“[O]ver-
inclusiveness for career offender purposes may arise even if a criminal statute . . . is
not textually divisible.”), overruled by United States v. Tucker, 740 F.3d 1177 (8th
Cir. 2014) (en banc); see also United States v. Pearson, 553 F.3d 1183, 1186 (8th Cir.
2009), overruled by Tucker, 740 F.3d 1177. Both Parks and Pearson evaluated escape-
from-custody statutes that did not contain alternative elements in the text of the
statutes, but nonetheless encompassed both “escape from custody,” which constituted
a qualifying offense, and “failure to return,” which did not. Parks, 620 F.3d at 914-15;
Pearson, 553 F.3d at 1186. In both cases, we held that the statute was overinclusive

                                          -8-
and that the modified categorical approach permitted the district court to look at
permissible documents to determine which escape-from-custody offense the defendant
previously had been convicted of. This line of cases—overruled after the Supreme
Court’s decision in Descamps v. United States, 133 S. Ct. 2276 (2013), but still
applicable when Kelly was sentenced—supports the district court’s application of the
modified categorical approach to the textually divisible Iowa simple-assault statute.
Thus, a reasonable attorney could interpret our cases as saying that Kelly’s conviction
under subsection 708.1(2)(b) counts as a predicate offense under the modified
categorical approach if the government can demonstrate, using permissible
documents, that Kelly was convicted of “plac[ing] another in fear of immediate
physical contact which will be painful[ or] injurious.” Iowa Code § 708.1(2)(b). To
that end, the government submitted Kelly’s guilty plea documents, permissible under
Shepard, 544 U.S. at 26, which revealed that he was convicted of throwing a milk
bottle at a car driven by his daughter’s mother and hitting that car with a shovel,
conduct that eliminated the possibility that Kelly was convicted of the non-violent
offenses contained in section 708.1(2)(b). This result was not foreclosed by our
decision in Ossana, and we conclude that a reasonable attorney could believe that it
was the result required under Parks and Pearson.

       Kelly further argues that another case from our circuit, United States v. Smith,
171 F.3d 617 (8th Cir. 1999), made it clear that his Iowa conviction for domestic-
abuse assault, based on section 708.1(2), was not a crime of violence. This argument
derives from the statement in Smith that “If Smith pleaded guilty to § 708.1(2), then
he was not convicted of an offense that ‘has as an element, the use or attempted use
of force.’” Id. at 620 (quoting 18 U.S.C. § 921(a)(33)(A)(ii)). That statement is dicta,
however, for we applied the modified categorical approach to determine whether a
violation of Iowa Code section 708.1 can serve as a predicate conviction under 18
U.S.C. § 922(g)(9), which criminalizes possessing a firearm after “having been
convicted of a misdemeanor involving domestic violence.” Id. at 619. The criminal
complaint in Smith’s prior assault conviction stated that “Smith grabbed [the mother

                                          -9-
of his child] ‘by the throat, and did also push her down.’” Id. at 621 (citation
omitted). We concluded that the complaint was sufficient to demonstrate that Smith
had been convicted under section 708.1(1) rather than 708.1(2). Id. We did not
discuss, however, whether a conviction under 708.1(2) was further divisible under the
modified categorical approach, nor did we discuss whether a conviction under section
708.1(2) for acts “intended to place another in fear of immediate physical contact
which will be painful[ or] injurious” would qualify as a predicate offense for the
career-offender enhancement.

       Given the absence of a clearly controlling precedent requiring a different course
of action, and in light of the substantial deference we afford trial counsel, we conclude
that Kelly’s counsel’s performance at sentencing was objectively reasonable.

      The judgment is affirmed.
                      ______________________________




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