United States v. Catrell Green ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1350
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United States of America
Plaintiff - Appellee
v.
Catrell Ronald Green
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: January 9, 2023
Filed: June 8, 2023
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
Catrell Green received a 108-month sentence for possessing a firearm as a
felon. Although he challenges the base-offense-level calculation, a four-level
enhancement for possessing a firearm in connection with another felony offense, and
the overall length of the sentence, we affirm.
I.
A routine traffic stop led to a foot chase when the driver took off running.
Left behind was Green, who was lying down in the backseat. After a nearly three-
minute struggle, officers finally dragged him out of the car.
It turns out that there may have been a reason why Green stayed put. Stashed
on the floor, underneath the passenger seat, was a Taurus 9-millimeter pistol. Just
days earlier, Green had brandished what appeared to be the same gun in a Snapchat
video. With the evidence against him mounting, he decided to plead guilty to a
single felon-in-possession count rather than risk a trial. See 18 U.S.C. §§ 922(g)(1),
924(a)(2).
Multiple factors went into determining Green’s sentence. The base offense
level came from his “two [prior] felony convictions of either a crime of violence or
a controlled substance offense.” U.S.S.G. § 2K2.1(a)(1) (providing for a base
offense level of 26 in these circumstances if the “semiautomatic firearm” he
possessed was “capable of accepting a large[-]capacity magazine”). Everyone
agreed that a prior possession-with-intent-to-deliver-marijuana conviction counted
as one. See Iowa Code § 124.401(1)(d). A 2015 assault while displaying a
dangerous weapon was the other. See Iowa Code §§ 708.1(2), 708.2(3) (2013).
The second factor was a four-level enhancement for possessing the gun “in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The district
court1 concluded that Green had interfered with official acts by resisting arrest while
“armed.” Iowa Code § 719.1(1)(f). Application of a three-level reduction for
acceptance of responsibility left him with a total offense level of 27, see U.S.S.G.
§ 3E1.1, which equated to 108 months in prison after a downward variance of 12
months, see id. § 5G1.1(a).
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
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II.
A key component of any sentence is the base offense level—the starting point
for the calculation. See U.S.S.G. § 1B1.1(a)(1), (2) (requiring the sentencing court
to “[d]etermine the base offense level” for the “offense of conviction”). Here, two
facts led to a base offense level of 26: the pistol found in the car had a
“large[-]capacity magazine” and Green had “two [qualifying] felony convictions.”
Id. § 2K2.1(a)(1). On appeal, he challenges only one of the two convictions, the
“crime of violence.”
The Sentencing Guidelines define a “crime of violence” as a felony offense
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); see United States v. Schneider,
905 F.3d 1088, 1090 (8th Cir. 2018). This definition may look familiar because the
Armed Career Criminal Act uses the same one for “violent felon[ies].” See 18
U.S.C. § 924(e)(2)(B)(i). It is more commonly known as the “force” or “elements”
clause, see United States v. Matthews, 25 F.4th 601, 603 (8th Cir. 2022), and to
satisfy it, “the legal definition of [the] crime” is what matters, “not [the defendant’s]
actual acts,” Schneider, 905 F.3d at 1090. See United States v. Harrison, 809 F.3d
420, 425 (8th Cir. 2015) (explaining that our review is de novo).
A statute’s structure plays a key role in the analysis. On the simpler side are
indivisible statutes, which “create[] a single crime” with “a single set of elements.”
Schneider, 905 F.3d at 1090. In those situations, our task is straightforward:
“examine th[e] elements” of the crime, id., and then figure out whether it necessarily
involves “the use, attempted use, or threatened use of physical force against”
another. U.S.S.G. § 4B1.2(a)(1). If so, it qualifies as a violent felony or a crime of
violence.
“Not all statutes,” however, “are so simple.” Schneider, 905 F.3d at 1090.
Some are divisible, meaning they contain “multiple crimes” with “more than one set
of elements.” Id. In those situations, the analysis involves an additional step. See
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id. Identifying the exact crime requires peeking at a limited class of documents, also
known as Shepard documents. See id. Only then do we ask the same question as
before: based on the elements of whichever crime the defendant committed, does the
offense necessarily involve “the use, attempted use, or threatened use of physical
force against” another? U.S.S.G. § 4B1.2(a)(1). If so, it also qualifies as a violent
felony or a crime of violence.
With that background in mind, our task is to determine whether the crime of
assault while displaying a dangerous weapon, see Iowa Code § 708.2(3), is a “crime
of violence,” U.S.S.G. § 4B1.2(a). On its face, the statute lists two elements: an
assault plus the “use[] or display[] [of] a dangerous weapon in connection with the
assault.” Iowa Code § 708.2(3); see United States v. McGee, 890 F.3d 730, 736 (8th
Cir. 2018) (explaining that “[t]he elements of the offense are the use or display of a
dangerous weapon, [Iowa Code] § 708.2(3), in committing an assault violation of
[Iowa Code] § 708.1”). If that was it, the statute would create only one crime with
a single set of elements.
But assault itself is defined elsewhere, and a cross-reference leads us to the
right place. Iowa Code § 708.2(3) (pointing to the definition of “assault” in Iowa
Code § 708.1). Under the cross-referenced statute, any of three acts qualify:
a. [One] . . . 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. [One] . . . 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 point[ing] any firearm toward another, or
display[ing] in a threatening manner any dangerous weapon
toward another.
Iowa Code § 708.1(2) (2013). Putting it all together, Green must have used or
displayed a dangerous weapon while committing an assault in one of those three
ways. Here, the Shepard documents are silent on which type of assault Green
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committed when he “use[d] or display[ed] a dangerous weapon.” Iowa Code
§ 708.2(3).
Fortunately, it does not matter. In United States v. McGee, faced with a nearly
identical set of facts, we concluded that “us[ing] or “display[ing] a dangerous
weapon,” id., satisfies the force clause. McGee, 890 F.3d at 736–37. The reason:
“displaying an operational weapon before another in an angry or threatening manner
qualifies as a threatened use of physical force.” Id. (citation omitted). No matter
which type of assault Green committed, in other words, his conviction counts. See
id. at 737.
Green counters that the law has changed since McGee. He points to Borden
v. United States, 141 S. Ct. 1817 (2021), which clarified that “crimes that can be
committed recklessly” do not involve “the use, attempted use, or threatened use of
physical force against” another, United States v. Hoxworth, 11 F.4th 693, 695–96
(8th Cir. 2021) (discussing Borden’s holding). See United States v. Lopez-Castillo,
24 F.4th 1216, 1219 n.2 (8th Cir. 2022) (explaining that Borden also applies to the
crime-of-violence definition in the Sentencing Guidelines).
Borden, however, is of no help to Green. Each of the three ways of
committing assault in Iowa requires intent. See Iowa Code § 708.1(2)(a) (2013)
(requiring “inten[t] to cause pain or injury” (emphasis added)); id. § 708.1(2)(b)
(2013) (requiring “inten[t] to place another in fear of immediate physical contact”
(emphasis added)); id. § 708.1(2)(c) (2013) (requiring “[i]ntentionally point[ing]
any firearm toward another, or display[ing] [it] in a threatening manner” (emphasis
added)). Besides, it is difficult to imagine how anyone could “use[] or display[] a
dangerous weapon” unintentionally. Iowa Code § 708.2(3). The point is that
“Borden’s holding . . . does not affect” McGee. United States v. Larry, 51 F.4th 290,
292 (8th Cir. 2022); see Lopez-Castillo, 24 F.4th at 1219 n.2 (noting that Borden
only tells us that “a crime of violence . . . requires a mens rea greater than
recklessness—e.g., knowledge or intent”). Nor, as a result, does it affect Green’s
base offense level.
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III.
Beyond the base offense level, Green believes that he did not deserve a four-
level enhancement for possessing a firearm “in connection with another felony
offense.” U.S.S.G. § 2K2.1(b)(6)(B). On this issue, we review the district court’s
legal conclusions de novo and its factual findings for clear error. See United States
v. Boots, 816 F.3d 971, 973 (8th Cir. 2016) (per curiam).
The story behind the enhancement begins with the struggle in the backseat of
the car. Recall that it took officers nearly three minutes to drag Green out, causing
one to suffer a knee injury. At sentencing, the district court found that Green’s
actions rose to the level of felony interference with official acts. See Iowa Code
§ 719.1(1)(f). Green does not question the interference itself. Rather, he disputes
the finding that he was “armed,” which is the element that turned the interference
into a felony. Id.We are not writing on a blank slate. One Iowa Court of Appeals decision,
State v. Campbell-Scott, provides guidance. No. 16-0472, 2017 WL 512590 (Iowa
Ct. App. Feb. 8, 2017). There, officers found two guns near a car, one in a grassy
area by a pole and the other near the passenger’s side door. See id. at *1. The issue
was whether the driver was “armed” when he made a run for it and resisted arrest.
Id. at *1–*2.
The Iowa Court of Appeals said yes. Id. at *2. It equated the requirement of
being “armed” with “possession” of a firearm. Id. at *2; see United States v.
Robison, 759 F.3d 947, 950 (8th Cir. 2014) (relying on two unpublished decisions
from the Iowa Court of Appeals for a U.S.S.G. § 2K2.1(b)(6)(B) enhancement).
Possession can either be “actual or constructive,” State v. Reed, 875 N.W.2d 693,
705 (Iowa 2016), and the latter “exists when[ever] the evidence shows the defendant
ha[d] knowledge of the presence of the [weapon] and ha[d] the authority or right to
maintain control of it,” Campbell-Scott, 2017 WL 512590, at *2 (quoting Reed, 875
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N.W.2d at 705). The point is that, in Iowa, being “armed” does not require actually
carrying the firearm.2
There is just as much evidence of constructive possession here as in Campbell-
Scott, if not more. First, there is Green’s guilty plea, which necessarily required him
to admit that he possessed the gun. Second, there was a video of him wielding what
appeared to be the same gun just days earlier, which shows that he had “authority”
and “control” over it. Reed, 875 N.W.2d at 705 (citation omitted). Third, no one
disputes that the gun’s location under the front passenger seat placed it within arm’s
reach of him. On these facts, we cannot say the district court’s finding that he was
“armed” was clearly erroneous.3
IV.
Finally, Green challenges the substantive reasonableness of his 108-month
prison sentence. Given the 12-month downward variance he received, “it is nearly
inconceivable” that the district court “abuse[d] its discretion in not varying
downward [even] further.” United States v. Carrillo, 982 F.3d 1134, 1136 (8th Cir.
2
We recognize that Campbell-Scott, an unpublished opinion, is not strictly
“controlling.” Iowa R. App. P. 6.904(2)(c). We nevertheless follow it for two
reasons. First, it relies heavily on binding Iowa Supreme Court precedent. And
second, its analysis is consistent with the plain meaning of the word “armed.” See
The American Heritage Dictionary of the English Language 96 (5th ed. 2016)
(defining “armed” as “suppl[ied] or equip[ped] . . . with weaponry” or “prepare[d]
[for] . . . conflict”); Webster’s Third New International Dictionary 119 (2002)
(defining “armed” as being “furnished with weapons of offense or defense”); cf.
Muscarello v. United States, 524 U.S. 125, 126–27 (1998) (holding that “us[ing] or
carr[ying] a firearm” occurs when the firearm is locked in the glove compartment or
trunk of a vehicle that the defendant is driving).
3
To the extent Green argues that possession of the gun was not “in connection
with” the interference, U.S.S.G. § 2K2.1(b)(6)(B), we reject that argument as well.
The “presence” of the firearm in the car “facilitated or had the potential to facilitate”
his decision to resist. United States v. Harper, 466 F.3d 634, 650 (8th Cir. 2006).
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2020) (citation omitted). That is especially true here, given that the court thoroughly
considered the statutory sentencing factors, see 18 U.S.C. § 3553(a), did not rely on
an improper or irrelevant factor, and made no clear error of judgment, United States
v. Feemster, 572 F.3d 455, 461–62 (8th Cir. 2009) (en banc).
V.
We accordingly affirm the judgment of the district court.
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