                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2400
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                  Cornelius Coleman, also known as Cornbread

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

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

                           Submitted: January 17, 2019
                             Filed: March 18, 2019
                                 ____________

Before BENTON, MELLOY, and KELLY, Circuit Judges.
                          ____________

KELLY, Circuit Judge.

       Cornelius Coleman pleaded guilty to one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced
Coleman under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to 15
years of imprisonment, the statutory minimum sentence. Coleman appeals,
challenging the ACCA enhancement. Because Coleman did not object to the
enhancement at sentencing, we review for plain error, affirming his sentence unless
he can show (1) an error; (2) that is plain; (3) that affects his substantial rights; and
(4) that seriously affects “the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Boman, 873 F.3d 1035, 1040 (8th Cir. 2017) (quoting
United States v. Olano, 507 U.S. 725, 732 (1993)).

         To enhance a defendant’s sentence under the ACCA, the court must identify
three predicate convictions, either violent felonies or serious drug offenses, in the
defendant’s criminal history. Here, the district court applied the ACCA based on
Coleman’s 2006 Arkansas conviction for kidnapping and two prior convictions for
serious drug offenses. On appeal, Coleman challenges the use of the kidnapping
conviction as a predicate. Kidnapping is not an enumerated offense under the ACCA,
so it may qualify as a violent felony only if it satisfies the ACCA’s force clause, that
is, if it “has as an element the use, attempted use, or threatened use of physical force
against the person of another.” § 924(e)(2)(B)(i). To determine whether a prior
conviction meets this definition, “courts look to the elements of the crime of
conviction, not the underlying facts.” Boman, 873 F.3d at 1040 (citing Mathis v.
United States, 136 S. Ct. 2243, 2248 (2016)).

      Arkansas Code § 5-11-102, the statute that criminalizes kidnapping, provides:

      (a) A person commits the offense of kidnapping if, without consent, the
      person restrains another person so as to interfere substantially with the
      other person’s liberty with the purpose of:
             (1) Holding the other person for:
                    (A) Ransom or reward; or
                    (B) Any other act to be performed or not performed for the
                    other person’s return or release;
             (2) Using the other person as a shield or hostage;
             (3) Facilitating the commission of any felony or flight after the
             felony;
             (4) Inflicting physical injury upon the other person;



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             (5) Engaging in sexual intercourse, deviate sexual activity, or
             sexual contact with the other person;
             (6) Terrorizing the other person or another person; or
             (7) Interfering with the performance of any governmental or
             political function.
      (b)(1) Kidnapping is a Class Y felony.

The government concedes that § 5-11-102 is overbroad, as one may commit the
offense of kidnapping without using, attempting to use, or threatening to use physical
force.1 But the government argues that § 5-11-102 is divisible—that is, that the
nefarious “purposes” listed in subsections (a)(1) through (a)(7) are elements of seven
different crimes—and that Coleman was convicted under subsection (a)(6), which has
as an element the use of physical force. To determine whether a statute lists elements
of different crimes, or instead lists alternative means of committing a single crime,
we look to the statute itself and state court decisions interpreting the statute. See
Mathis, 136 S. Ct. at 2256.

       The text of § 5-11-102 names only one offense—kidnapping—and defines that
offense as “a class Y felony” regardless of which nefarious purpose is used. The
statutory text suggests, therefore, that subsections (a)(1) through (a)(7) list means, not
elements. Cf. id. (“If statutory alternatives carry different punishments, then . . . they
must be elements.”).

       Arkansas courts treat the nefarious purposes listed in § 5-11-102(a) as means,
not elements. In Hill v. State, the defendant was originally charged with kidnapping
in violation of § 5-11-102(a)(4); an amended information was later filed, which
included new allegations under subsections (a)(3) and (a)(6). 257 S.W.3d 534, 537
(Ark. 2007). The Supreme Court of Arkansas explained that “the amendment did not

      1
        The overarching element of “restraint” listed in subsection (a) might seem to
be the most logical element to satisfy the force clause, but Arkansas defines
“restraint” to include restraint by “deception.” See Ark. Code Ann. § 5-11-101(3)(A).

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change the nature of the kidnapping charge; rather, it amended the manner in which
the alleged kidnapping took place.” Id. at 538. Arkansas’s appellate court conceives
of § 5-11-102 similarly. See Singleton-Harris v. State, 439 S.W.3d 720, 723 (Ark.
Ct. App. 2014) (“The State need only prove that the accused restrained the victim so
as to interfere with the victim’s liberty, without consent, for a specific purpose
outlined in the statute.”).

       Arkansas’s model jury instructions reinforce the treatment of the nefarious
purposes as means, not elements. See United States v. McMillan, 863 F.3d 1053,
1057 (8th Cir. 2017) (“We may use a state’s model jury instructions to ‘reinforce’ our
interpretation of the means or elements inquiry.”). The model instructions list only
two elements: first, restraining the victim without consent so as to interfere
substantially with the victim’s liberty; and second, doing so with a specific purpose.
The nefarious purposes are then listed in the alternative, suggesting that they are
alternative means to fulfill a single element. Ark. Model Jury Instr. Crim. 2d 1101.
Arkansas trial courts have at times instructed the jury on multiple nefarious purposes
in the disjunctive, see, e.g., Sasser v. State, 993 S.W.2d 901, 908 (Ark. 1999) (per
curiam), further supporting the conclusion that the purposes are means. Cf. Mathis,
136 S. Ct. at 2257 (explaining that jury instructions “referencing one alternative term
to the exclusion of all others” could indicate “that the statute contains a list of
elements”).

       Because § 5-11-102 lists alternative means, it is indivisible. The government
concedes that without division, Arkansas’s kidnapping statute does not qualify as a
violent felony. Therefore, Coleman does not have three predicate offenses and the
district court plainly erred in sentencing him under the ACCA. The error affects
Coleman’s substantial rights and the fairness and integrity of judicial proceedings,
because without the ACCA enhancement, his statutory maximum sentence is five
years shorter than the sentence he received, and his advisory Guidelines range is



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likely shorter, too. See Boman, 873 F.3d at 1043. Thus, we reverse and remand for
resentencing in accordance with this opinion.
                        ______________________________




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