Submitted: September 23, 2019
from United States District Court for the Southern District
of Iowa - Des Moines.
GRUENDER, ARNOLD, and GRASZ, Circuit Judges.
Gruender, Circuit Judge.
Quigley 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(a)(1), 841(b)(1)(A), and 846, and possession
of a firearm in furtherance of a drug trafficking crime, 18
U.S.C. § 924(c)(1)(A)(i). The presentence investigation
report recommended classifying Quigley as a career offender
under U.S.S.G. § 4B1.1 for two prior felony convictions,
one a crime of violence and one a controlled substance
offense. Quigley challenged this classification, arguing that
his Iowa assault with intent to inflict serious injury
conviction did not qualify as a crime of violence under the
career-offender enhancement. The district court rejected this
argument and concluded Quigley qualified as a career
offender. It then determined that Quigley's criminal
history was a Category VI, with an advisory sentencing
guidelines range of 262 to 327 months, plus a mandatory
60-month consecutive sentence for his firearms offense. The
district court varied downward to 180 months on the
conspiracy count and imposed a 240-month sentence. Quigley
appeals, challenging only the district court's conclusion
that his Iowa conviction for assault with intent to inflict
serious injury qualified as a crime of violence under the
career-offender enhancement. We affirm.
review classification as a career offender de novo."
United States v. Boose, 739 F.3d 1185, 1186 (8th
Cir. 2014). A conviction qualifies as a "crime of
violence" for purposes of the career-offender
enhancement if it is an "offense under federal or state
law, punishable by imprisonment for a term exceeding one
year," that either (1) "has as an element the use,
attempted use, or threatened use of physical force against
the person of another," (the "force clause")
or (2) is "aggravated assault," among other
enumerated offenses (the "enumerated-offenses
clause"). U.S.S.G. §§ 4B1.1(a), 4B1.2(a).
Iowa, assault with intent to inflict serious injury is an
aggravated misdemeanor punishable by up to two years in
prison. Iowa Code §§ 708.2(1), 903.1(2). We have
previously held that section 708.2(1) is categorically a
crime of violence under the enumerated-offenses clause.
United States v. Chapman, 720 Fed.Appx. 794, 795-96
(8th Cir. 2018) (per curiam). Quigley suggests we
erred in Chapman, but, whether or not we follow
Chapman-an unpublished and thus nonprecedential
opinion, see 8th Cir. R. 32.1A-Quigley cannot
succeed because his Iowa conviction for assault with intent
to inflict serious injury qualifies as a crime of violence
under the force clause.
"first step" in our analysis "is to determine
whether to apply the categorical or modified categorical
approach." United States v. Ossana, 638 F.3d
895, 899 (8th Cir. 2011). If the statute underlying the
predicate conviction "creates a single crime by listing
a single set of elements," it is indivisible, and we
follow the categorical approach, looking to the elements of
the offense "rather than the defendant's actual
conduct" to determine if it has a physical-force
element. United States v. Schneider, 905 F.3d 1088,
1090 (8th Cir. 2018). But if the statute creates multiple
crimes with distinct elements listed together, it is
"divisible," and we follow the modified categorical
approach. Id. at 1090-91. Sometimes, a statute may
seem divisible because it lists alternatives, but in fact it
is indivisible because those alternatives "are not
alternative elements, going toward the creation of separate
crimes" but are simply "alternative ways" or
"means" of "satisfying a single . . .
element." Mathis v. United States, 579 U.S. __,
136 S.Ct. 2243, 2250 (2016).
offense of assault with intent to inflict serious injury
requires commission of an "assault" as defined in
Iowa Code section 708.1 with the intent to inflict a
"serious injury" as defined in Iowa Code section
702.18 on another. Iowa Code § 708.2(1); see State
v. Edwards, 801 N.W.2d 378, 2011 WL 1878600, at *1 (Iowa
Ct. App. May 11, 2011) (unpublished) (recounting jury
instructions that defined "serious injury" in
section 708.2(1) by referring to the definition in section
702.18(1)); cf. State v. White, 668 N.W.2d 850, 859
(Iowa 2003) (looking to section 702.18 for the definition of
"serious injury" as used in an Iowa criminal
statute similar to section 708.2(1)). On its face, section
708.2(1) appears indivisible.
"assault" and "serious injury" elements,
however, refer to other statutes that list different types of
"assault" and "serious injury."
See Iowa Code §§ 708.1(2), 702.18(1). The
parties agree that the statute is divisible based on the
incorporation of these other sections into section 708.2(1),
though they disagree about the proper analysis under the
modified categorical approach. We nevertheless conclude that
the statute is indivisible. The alternatives listed in
sections 708.1(2) and 702.18(1) are merely different means of
satisfying the "assault" and "serious
injury" elements, respectively, of the singular
"assault with intent to inflict serious injury"
crime. See, e.g., Bacon v. Bacon, 567
N.W.2d 414, 417-18 (Iowa 1997) (noting that section 708.1
lists "alternatives" that can satisfy the
"assault" element of another Iowa crime); State
v. McKee, 312 N.W.2d 907, 912 (Iowa 1981) (recognizing
the different "possible kinds of serious injury . . .
included in the section 702.18 definition"); Iowa Code
§ 702.18(1) (stating that a "serious injury"
is "any" of the alternatives listed in the
statute). Because section 708.2(1) merely allows for multiple
factual means to satisfy particular elements, it remains
indivisible, so we apply the categorical approach. See
Mathis, 136 S.Ct. at 2249, 2253.
the categorical approach, we restrict our inquiry to
"the abstract requirements for a conviction, rather than
the defendant's actual conduct," and ask whether a
conviction necessarily had "a physical-force
element" for the offense to qualify as a crime of
violence under the force clause. Schneider, 905 F.3d
at 1090. "Physical force" is "force capable of
causing physical pain or injury to another person."
Johnson v. United States, 559 U.S. 133, 140 (2010).
If "only conduct involving physical force" can
support a conviction under the statute, then the crime
"has a physical-force element." Schneider,
905 F.3d at 1090. Conversely, if the crime can be committed
without even the threatened use of physical force, it does
not have a physical-force element. See id.
speculation that section 708.2(1) could be applied to conduct
not involving physical force does not take the offense
outside the scope of the force clause; rather, there must be
a "non-fanciful, non-theoretical manner" to commit
assault with intent to inflict serious injury without so much
as the threatened use of physical force. United States v.
Gaines, 895 F.3d 1028, 1033 (8th Cir. 2018). To make
this showing, a defendant "must at least point to his
own case or other cases in which the state courts in fact did
apply the statute" in a way that takes it beyond the
scope of the force clause. Fletcher v. United
States, 858 F.3d 501, 507 (8th Cir. 2017).
does not identify any Iowa cases where an individual was
convicted under section 708.2(1) without having at least
threatened to use physical force. And our own survey of cases
reveals that this is not a "realistic probability."
example, in State v. Ortiz, the Iowa Supreme Court
concluded that the evidence could not support a finding of
"intent to inflict serious injury" under section
708.2(1) where, although the defendant "displayed a
knife," he "never turned to confront" the
victim, "did not lunge toward her or approach her with
the knife," and "never made any stabbing or
slashing gestures at her." 905 N.W.2d 174, 182-83 (Iowa
2017). The component missing that was needed to satisfy ...