United States v. Boleyn

• Decision Date: 08 July 2019
• Docket Number: No. 18-2248, No. 18-1021,No. 17-3817, No. 18-2562, No. 18-2286,17-3817
• Parties: UNITED STATES of America Plaintiff - Appellee v. Kyle Dwayne BOLEYN Defendant - Appellant United States of America Plaintiff - Appellee v. Erwin Keith Bell Defendant - Appellant United States of America Plaintiff - Appellee v. Justin Scott Vasey Defendant - Appellant United States of America Plaintiff - Appellee v. Demetrius Marcellus Green Defendant - Appellant United States of America Plaintiff - Appellee v. Robert Joseph Fisher Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

929 F.3d 932

UNITED STATES of America Plaintiff - Appellee

v.Kyle Dwayne BOLEYN Defendant - Appellant

United States of America Plaintiff - Appellee

v.Erwin Keith Bell Defendant - Appellant

United States of America Plaintiff - Appellee

v.Justin Scott Vasey Defendant - Appellant

United States of America Plaintiff - Appellee

v.Demetrius Marcellus Green Defendant - Appellant

United States of America Plaintiff - Appellee

v.Robert Joseph Fisher Defendant - Appellant

No. 17-3817

No. 18-1021

No. 18-2248

No. 18-2286

No. 18-2562

United States Court of Appeals, Eighth Circuit.

Submitted: January 17, 2019

Filed: July 8, 2019

Rehearing and Rehearing En Banc Denied August 22, 2019^*

Timothy Vavricek, Martin Joseph McLaughlin, Emily K. Nydle, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, Northern District of Iowa, Cedar Rapids, IA, Kristin Herrera, Special Assistant U.S. Attorney, Andrew H. Kahl, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Des Moines, IA, for Plaintiff-Appellee.

Heather Quick, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Northern District of Iowa, Cedar Rapids, IA, for Defendant-Appellant Kyle Dwayne Boleyn, Erwin Keith Bell, Demetrius Marcellus Green, Justin Scott Vasey, Robert Joseph Fisher.

Kyle Dwayne Boleyn, Mount Pleasant, IA, pro se.

Erwin Keith Bell, Pekin, IL, pro se.

Demetrius Marcellus Green, Oxford, WI, pro se.

Justin Scott Vasey, Milan, MI, pro se.

Robert Joseph Fisher, Pine Knot, KY, pro se.

Before LOKEN, GRASZ, and STRAS, Circuit Judges.

LOKEN, Circuit Judge.

We consolidated these five sentencing appeals because they present a common issue: whether a prior conviction under Iowa Code § 124.401 qualifies as a predicate offense warranting sentence enhancements under the Armed Career Criminal Act ("ACCA"), the Controlled Substances Act ("CSA"), and the career offender provisions of the Sentencing Guidelines if the Iowa law of aiding and abetting liability is "overly broad." Five judges of the United States District Courts for the Northern and Southern Districts of Iowa concluded that a conviction under § 124.401 is a "serious drug offense" under the ACCA, 18 U.S.C. § 924(e)(2)(A)(ii) ; a "felony drug offense" under the CSA, 21 U.S.C. § 841(b)(1)(D) ; or a "controlled substance offense" under § 4B1.2(b) of the Guidelines.¹ Separately considering the three enhancement provisions, we agree with the district courts’ conclusions and therefore affirm each of the five sentences.²

I. The Common Issue.

Kyle Dwayne Boleyn and Erwin Keith Bell each pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The district courts concluded that their multiple prior convictions under Iowa Code § 124.401 were "serious drug offenses" under the ACCA. This determination increased their advisory guidelines ranges and subjected them to the ACCA’s mandatory minimum fifteen-year sentence, rather than the maximum ten-year sentence under § 922(g). See 18 U.S.C. § 924(a)(2).

Justin Vasey, Robert Fisher, and Demetrius Green each pleaded guilty to possession with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) or (D). The district courts determined they were subject to the career offender enhancement under § 4B1.1 of the Guidelines because their prior convictions under § 124.401 were "controlled substance offenses." This significantly increased their advisory guidelines ranges. The district court also determined that one of Green’s two convictions under § 124.401 qualified as a prior "felony drug offense" under the CSA, 21 U.S.C. § 802(44). This increased the statutory maximum sentence for his marijuana offense of conviction from five to ten years under § 841(b)(1)(D).

On appeal, each defendant argues that the district court erred in determining that his prior convictions under § 124.401 warrant a drug offense enhancement under the ACCA, the career offender guidelines provisions, or the CSA. The Iowa statute at issue provides:

it is unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, or a simulated controlled substance, or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance, a counterfeit substance, or a simulated controlled substance.

Iowa Code § 124.401(1). Raising an issue of first impression in this circuit, defendants argue that no conviction under this statute can be a predicate prior conviction under the ACCA, the CSA, or the career offender guidelines because aiding and abetting liability is inherent in the definition of all drug offenses, and Iowa’s doctrine of aiding and abetting is broader than "the generic definition of aiding and abetting." More specifically, defendants argue that a "vast majority of relevant authorities -- the federal courts, 45 state jurisdictions, and the Model Penal Code -- [hold] that a defendant cannot be convicted on an aiding and abetting theory on only a ‘knowledge’ mens rea ." By contrast, Iowa is one of the few States that "only requires mere knowledge that one’s actions will facilitate a crime." Because "knowledge" is a lesser mens rea than "intent," defendants posit, "it follows, with respect to aiding and abetting liability, that Iowa § 124.401 is broader than" drug offenses as defined in the ACCA, the CSA, or the career offender guidelines.

We review de novo the determination that a prior conviction qualifies as a sentence enhancing predicate. See United States v. Jones, 574 F.3d 546, 549 (8th Cir. 2009) (ACCA); United States v. Sturdivant, 513 F.3d 795, 803 (8th Cir. 2008) (CSA); United States v. Eason, 643 F.3d 622, 623 (8th Cir. 2011) (USSG). Though creative, we conclude defendants’ contention is unsound.

II. The Analytical Framework.

In determining whether a prior § 124.401 conviction qualifies as a predicate offense for purposes of these federal sentencing enhancements, we apply a categorical approach that looks to the statutory definition of the prior offense, not to the facts underlying a defendant’s prior convictions. Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In Taylor, the Court considered whether a burglary conviction fell within the ACCA provision defining violent felony to include certain enumerated offenses. See 18 U.S.C. § 924(e)(2)(B)(ii) ("is burglary"). If the state statute "sweeps more broadly" than the generic crime enumerated, a conviction "cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form." Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 2283, 186 L.Ed.2d 438 (2013).

By contrast, when a federal enhancement provision incorporates state offenses by language other than a reference to generic crimes, the categorical approach still applies, but the inquiry is focused on applying the ordinary meaning of the words used in the federal law to the statutory definition of the prior state offense. See United States v. Sonnenberg, 556 F.3d 667, 671 (8th Cir. 2009) ("aggravated sexual abuse, sexual abuse, or abusive sexual conduct with a minor or ward," 18 U.S.C. § 2252 ); cf. Nijhawan v. Holder, 557 U.S. 29, 36-38, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) ("aggravated felony" in the Immigration and Nationality Act). In United States v. Maldonado, 864 F.3d 893, 897-901 (8th Cir. 2017), we applied the categorical approach in rejecting the argument that Iowa Code § 124.401 is not a "controlled substance offense" under the career offender guidelines because it could be construed to apply to offers to sell.

This case presents a different issue, whether Iowa’s doctrine of aiding and abetting liability renders every § 124.401 conviction overly broad under each of the three federal enhancement provisions at issue. The argument was "teed up," in defendants’ view, by the Supreme Court’s decision in Gonzales v. Duenas-Alvarez that "every jurisdiction -- all States and the Federal Government -- has expressly abrogated the distinction among principals and aiders and abettors." 549 U.S. 183, 189, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (quotation omitted). This is certainly true in Iowa, where a separate statute provides that aiders and abettors are to be "charged, tried and punished as principals." Iowa Code § 703.1. Thus, § 124.401, the statute at issue, defines the criminal offense but contains no reference to aiding and abetting liability. Iowa law does not require that an individual be charged as an aider and abettor for the theory to apply, see State v. Satern, 516 N.W.2d 839, 842-45 (Iowa 1994), nor does it require a unanimous verdict that defendant acted as a principal as opposed to an aider and abettor, see White v. State, 380 N.W.2d 1, 4 (Iowa App. 1985).

III. The ACCA and CSA Enhancements.

Defendants Bell and Boleyn were sentenced under the ACCA’s sentencing enhancement because they violated 18 U.S.C. § 922(g) and have three prior convictions for a "serious drug offense." See 18 U.S.C. §§ 924(a)(2) and (e)(1). The ACCA defines "serious drug offense" as (i) an offense under enumerated federal controlled substances statutes or "(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance" as defined by federal law. 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added).

Defendant Green’s sentence was enhanced under the CSA to a maximum of ten rather than five years in prison because he violated 21 U.S.C. § 841(a)(1) after a prior conviction for a "felony drug offense." "Felony drug offense," as used in § 841 is defined as "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or...