United States v. Cortrell Ramey , 880 F.3d 447 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-4328
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Cortrell A. Ramey,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 18, 2017
Filed: January 22, 2018
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Before COLLOTON, BENTON, and KELLY, Circuit Judges.
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COLLOTON, Circuit Judge.
Cortrell Ramey pleaded guilty to unlawful possession of a firearm as a
previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the
district court1 increased Ramey’s base offense level under USSG § 2K2.1(a)(4)(A)
1
The Honorable Rodney W. Sippel, Chief United States District Judge for the
Eastern District of Missouri.
based on a prior conviction. The court concluded that Ramey’s 2009 conviction for
second-degree assault under Mo. Rev. Stat. § 565.060.1(5) was a prior felony
conviction for a “crime of violence” under the guidelines. Ramey appeals, arguing
that the district court committed procedural error in making this determination. We
affirm.
The sentencing guidelines provide for a base offense level of 20 if the
defendant unlawfully possessed a firearm “subsequent to sustaining one felony
conviction of either a crime of violence or a controlled substance offense.” USSG
§ 2K2.1(a)(4)(A). The guidelines define “crime of violence” to include an offense
that “has as an element the use, attempted use, or threatened use of physical force
against the person of another.” USSG § 4B1.2(a)(1).
The Missouri second-degree assault statute under which Ramey was convicted
includes six subsections. Mo. Rev. Stat. § 565.060.1 (2009). The parties appear to
agree that each subsection defines a separate offense, and they agree that Ramey was
convicted of second-degree assault under § 565.060.1(5). That subsection forbids
“[r]ecklessly caus[ing] physical injury to another person by means of discharge of a
firearm.” Id. We accept the assumption that the six subsections set forth separate
offenses rather than means of committing a single offense. The Missouri Court of
Appeals held in In re J.L.T., 441 S.W.3d 183 (Mo. Ct. App. 2014), that subsections
(2) and (3) define “separate and distinct offense[s].” Id. at 188 (quoting J.D.B. v.
Juvenile Officer, 2 S.W.3d 150, 156 (Mo. Ct. App. 1999)). The Missouri approved
jury instructions likewise direct the trial court to insert only one subsection from the
statute when defining the elements of assault. MAI-CR 3d 319.12. The notes on use
specify that different subsections should not be included in the same jury instruction.
Id., Notes on Use 4.
Ramey argues that his conviction under § 565.060.1(5) is not for a crime of
violence because the Missouri statute criminalizes reckless conduct, rather than
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intentional or purposeful acts, so he did not “use” physical force within the meaning
of the guideline. In Voisine v. United States, 136 S. Ct. 2272 (2016), however, the
Supreme Court rejected Ramey’s proffered distinction between intentional and
reckless conduct. Applying 18 U.S.C. § 921(a)(33)(A)(ii) and the term “misdemeanor
crime of domestic violence,” the Court held that a “person who assaults another
recklessly ‘use[s]’ force, no less than one who carries out that same action knowingly
or intentionally.” Voisine, 136 S. Ct. at 2280. Following Voisine, this court
considered a similar issue under the Armed Career Criminal Act, which defines
“violent felony” to 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). Applying Voisine’s reasoning, we held that reckless conduct
“constitutes a ‘use’ of force under the ACCA because the force clauses in 18 U.S.C.
§ 921(a)(33)(A)(ii) and the ACCA both define qualifying predicate offenses as those
involving the ‘use . . . of physical force’ against another.” United States v. Fogg, 836
F.3d 951, 956 (8th Cir. 2016) (alteration in original).
Like the term “violent felony” under the ACCA, the definition of “crime of
violence” under the guidelines includes an offense that “has as an element the use,
attempted use, or threatened use of physical force against the person of another.”
USSG § 4B1.2(a)(1). We see no reason why “use” of force under the guidelines
would mean something different from “use” of force under the ACCA. Consistent
with Voisine and Fogg, we conclude that reckless conduct causing injury to another
by use of a firearm constitutes a use of force under the guidelines. Section
565.060.1(5) requires proof that the defendant’s reckless discharge of a firearm
caused physical injury to another person, so Ramey understandably does not dispute
that the statute meets the guideline’s requirement that the defendant’s offense have
as an element the use of physical force “against the person of another.”
Ramey points to United States v. Dawn, 685 F.3d 790 (8th Cir. 2012), and
United States v. Boose, 739 F.3d 1185 (8th Cir. 2014), where this court followed
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circuit precedent in United States v. Ossana, 638 F.3d 895 (8th Cir. 2011), and held
that reckless driving causing serious injury is not a crime of violence under the
guidelines. Ossana relied on the Supreme Court’s application of the former residual
clause of 18 U.S.C. § 924(e)(2)(B)(ii) in Begay v. United States, 533 U.S. 137 (2008),
to limit the scope of the “force” clause of USSG § 4B1.2(a). 638 F.3d at 900-03.
Whatever the merit of Ossana and its progeny as a limitation on the term “use” in the
force clause, and whatever the vitality of those decisions after Voisine and Fogg,
compare United States v. Fields, 863 F.3d 1012, 1015-16 (8th Cir. 2017), with id. at
1016 (Loken, J., dissenting), they do not apply here. By its terms, Ossana was
limited to “the unadorned offense of reckless driving,” 638 F.3d at 901 n.6, and it
does not extend to Ramey’s conviction for recklessly causing physical injury to
another person by means of discharge of a firearm.
The judgment of the district court is affirmed.
KELLY, Circuit Judge, concurring in the judgment.
“This panel is bound by Eighth Circuit precedent, and cannot overrule an
earlier decision by another panel,” United States v. Lovelace, 565 F.3d 1080, 1085
(8th Cir. 2009) (quoting Passmore v. Astrue, 533 F.3d 658, 660 (8th Cir. 2008)), and
Ramey argues only that Fogg was wrongly decided. But as the panel in Fogg noted,
it remains “an open question in our circuit whether a statute that criminalizes the
discharge of a firearm toward an occupied building or motor vehicle qualifies as a
violent felony under the force clause.” 836 F.3d at 955 (citing United States v.
Jordan, 812 F.3d 1183, 1186–87 (8th Cir. 2016)). Similarly, whether the statute in
question here, Mo. Rev. Stat. § 565.060.1(5), requires that the force be used against
the person of another also remains undecided. See, e.g., State v. White, 138 S.W.3d
783, 785 (Mo. Ct. App. 2004) (finding evidence sufficient to support a conviction for
second-degree assault under § 565.060.1(5) where the defendant “waved the gun
around as if he was ‘playing soldier’” because “[t]he State was not required to prove
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[the defendant] intentionally pulled the trigger; its burden was satisfied by showing
that [the defendant]’s reckless handling of the weapon was volitional”); State v.
Arellano, 736 S.W.2d 432, 436 (Mo. Ct. App. 1987) (“[O]ne may be reckless or
criminally negligent when his conduct is undirected and random, without having a
particular person as its target.” (emphasis added)). With this understanding, I concur
in the judgment.
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