                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2116
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                    Jason Lee Pyles

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                  for the Western District of Arkansas - Ft. Smith
                                  ____________

                            Submitted: January 10, 2018
                               Filed: May 3, 2018
                                 ____________

Before LOKEN, BEAM, and KELLY, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       Jason Lee Pyles 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). The district court1 concluded that
Pyles is an Armed Career Criminal because he has three prior “violent felony”


      1
        The Honorable P.K. Holmes, III, Chief Judge of the United States District
Court for the Western District of Arkansas.
convictions, see 18 U.S.C. § 924(e)(1), and overruled Pyles’s objection that his 2014
Arkansas conviction for aggravated assault on a family member was not a violent
felony conviction. The court sentenced Pyles to 180 months in prison, the mandatory
minimum Armed Career Criminal Act (ACCA) sentence. Pyles appeals, arguing the
district court erred in ruling that aggravated assault on a family member in violation
of Ark. Code Ann. § 5-26-306(a)(3) is a violent felony. Reviewing this issue de novo,
we affirm.

      Section 5-26-306(a)(3) of the Arkansas Code provides:

             (a) A person commits aggravated assault on a family or household
      member if, under circumstances manifesting extreme indifference to the
      value of human life, the person purposely . . . (3) Impedes or prevents the
      respiration of a family or household member or the circulation of a
      family or household member’s blood by applying pressure on the throat
      or neck or by blocking the nose or mouth of a family or household
      member.

We apply a categorical approach to determine whether a violation of this statute
constitutes a violent felony for ACCA purposes, looking to the elements of the offense
as defined in the statute rather than to the facts underlying Pyles’s conviction. See
United States v. Parrow, 844 F.3d. 801, 802 (8th Cir. 2016).

      At issue in this case is whether a violation of § 5-26-306(a)(3) is a violent
felony under the ACCA’s “force clause,” which defines violent felonies to include
“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)(i). The Supreme Court has defined the
word “force” in this statute as meaning “violent force -- that is, force capable of
causing physical pain or injury to another person.” Johnson v. United States, 559 U.S.



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133, 140 (2010). However, the force required is “only that degree of force necessary
to inflict pain -- a slap in the face, for example.” Id. at 143.

       Pyles argues that a violation of § 5-26-306(a)(3) is not a violent felony because
the statute could be violated by the use of minimal, non-violent force, such as
removing a person’s sleep apnea breathing machine. In Parrow, we concluded that
Iowa’s Domestic Abuse -- Strangulation statute satisfied the requirement of violent
force. “Knowingly strangulating another is categorically capable of causing physical
pain or injury to another person because it requires proof that the victim’s breathing
or blood circulation was impaired by the defendant.” 844 F.3d at 803. Likewise, the
force element of a § 5-26-306(a)(3) violation -- impeding respiration or blood
circulation by applying pressure on the throat or neck or by blocking the nose or
mouth -- necessarily requires the use of violent force as defined in Johnson.

       “[T]he proper inquiry is whether the conduct encompassed by the elements of
the offense, in the ordinary case, involves the use, attempted use, or threatened use of
physical force against the person of another.” United States v. Forrest, 611 F.3d 908,
910 (8th Cir.), cert. denied, 562 U.S. 1053 (2010), quoting James v. United States, 550
U.S. 192, 208 (2007), overruled on other grounds, Johnson v. United States, 135 S.
Ct. 2551, 2563 (2015). Pyles has not cited, and we have not found, any Arkansas case
in which the defendant was charged with violating § 5-26-306(a)(3) for the use of
non-violent force. “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.” United States v. Swopes, 886 F.3d 668, 671 (8th
Cir. 2018) (en banc) (quotation omitted).

      Seeking to distinguish this case from the Iowa statute at issue in Parrow, Pyles
argues that a violation of § 5-26-306(a)(3) only requires a mens rea of recklessness
when it provides, “under circumstances manifesting extreme indifference to the value

                                          -3-
of human life.” We have held that, “at least in some circumstances, a crime involving
a mens rea of mere recklessness does not [satisfy the force clause].” United States v.
Garcia-Longoria, 819 F.3d 1063, 1066 (8th Cir. 2016). However, that unsettled issue
does not apply here because an element of § 5-26-306(a)(3) is that the defendant acted
“purposely,” and the Supreme Court of Arkansas has defined acting “purposely” as
a “culpable mental state . . . which requires deliberate conduct with a knowledge or
awareness that one’s actions are practically certain to bring about the prohibited
result.” Bell v. State 259 S.W.3d 472, 476-77 (Ark. App. 2007), citing McCoy v.
State, 69 S.W.3d 430, 435-37 (Ark. 2002).

      The judgment of the district court is affirmed.
                     ______________________________




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