United States v. Boman

• Decision Date: 20 October 2017
• Docket Number: No. 14-3312.,14-3312.
• Parties: UNITED STATES of America Plaintiff–Appellee v. Donald BOMAN Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

873 F.3d 1035

UNITED STATES of America Plaintiff–Appellee

v.Donald BOMAN Defendant–Appellant

No. 14-3312.

United States Court of Appeals, Eighth Circuit.

Submitted: January 31, 2017

Filed: October 20, 2017

C. J. Williams, Ravi T. Narayan, Assistant U.S. Attorney, Martin Joseph McLaughlin, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff–Appellee.

Donald Boman, Federal Correctional Institution, Terre Haute, IN, Heather Quick, Assistant Federal Public Defender, Christopher James Nathan, Federal Public Defender's Office, Cedar Rapids, IA, for Defendant–Appellant.

Before SMITH,¹ MURPHY, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

A jury convicted Donald Boman of possessing a firearm and ammunition as a felon. The district court sentenced him to 262 months in prison. Boman appealed to this court, raising a number of arguments, including that the district court erred in classifying him as an Armed Career Criminal under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). We affirmed the district court. United States v.Boman, 810 F.3d 534 (8th Cir. 2016). Boman petitioned for writ of certiorari, and the Supreme Court granted the petition, vacated the judgment, and remanded for further consideration in light of Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Boman v. United States, ––– U.S. ––––, 137 S.Ct. 87, 196 L.Ed.2d 6 (2016) (Mem.).

I.

On November 2, 2013, Cedar Rapids Police Officers responded to a 911 call regarding a shooting. Once the officers arrived at the scene of the shooting, Officer Zach Jeffries spoke with Marcus Brown, who was walking across the street and "thought he had been shot." After conducting a pat-down of Brown, Officer Jeffries determined Brown had not been shot nor did Brown have any weapons.

Next, Officer Jeffries spoke with witnesses at the scene of the incident. From those conversations, Officer Jeffries learned the suspected shooter, Boman, was located inside the residence at 1800 Ridgewood Terrace Southeast. Sergeant Steven Yardly contacted Boman, and Boman walked out of the residence. Officer Jeffries then handcuffed Boman and placed him in the back of his squad car.

Jamie Cooper, Boman's girlfriend, lived with Boman and arrived at the scene shortly thereafter. At that time, Cooper consented to the police officers' search of her home. During the search, Cooper was cooperative and directed the officers to her bedroom dresser, which is where she said a firearm would be located. Cooper shared the bedroom with Boman. The officers located the firearm and two boxes of ammunition. One box contained fifty rounds of ammunition and the other box contained forty rounds of ammunition. The magazine in the firearm was missing one round.

Cooper's daughters, Cheyenne Cinkan and Jade Hasson, also lived at the residence, along with Cinkan's children. Cinkan thus had two connections to the relevant actors in this case because Brown was her boyfriend. Because Brown had physically abused Cinkan, she had recently moved to the residence shared by Boman and Cooper. In fact, earlier on November 2, 2013, Brown and Cinkan got into an argument at Boman's and Cooper's home. Soon thereafter, the argument ensued between Boman and Brown.

Sarah Michaels testified to witnessing the altercation. She said it involved two African American men, one taller than the other. The shorter man yelled from across the street, "Do it nigger! Do it nigger!" The taller African–American man then ran across the street, hit the other man, reached for his hip, and pointed his hand at the man on the ground. Michaels then heard a pop noise.² Michaels and Cinkan called 911 following this incident.

On March 18, 2014, a grand jury returned a one-count superseding indictment against Boman charging him with unlawfully possessing a firearm and ammunition as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Following a two-day jury trial, the jury found Boman guilty of possessing a firearm as a felon. The initial Presentence Investigation Report ("PSR") recommended a four-level sentence enhancement, pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2K2.1(b)(6)(B), and determined that Boman qualified as an Armed Career Criminal under the ACCA. Boman objected to the enhancement and his status as an Armed Career Criminal. As to his status under the ACCA, Boman argued that his prior convictions were not separate and distinct criminal episodes. The district court overruled Boman's objections and calculated a Guidelines range of 262–327 months' imprisonment. Ultimately, the court sentenced Boman to 262 months' imprisonment.

On appeal, Boman raised five arguments. In his first three arguments, Boman challenged the district court's evidentiary rulings. First, Boman claimed the district court improperly excluded the introduction of "reverse" Federal Rule of Evidence 404(b) evidence relating to a criminal conviction of the victim, Marcus Brown. Second, Boman argued the district court improperly excluded evidence relating to proof of Brown's motive and bias against Boman under Federal Rule of Evidence 403. Third, Boman asserted the district court improperly admitted Brown's 911 phone call under the excited-utterance exception of Federal Rule of Evidence 803(2). We held that the district court did not abuse its discretion in making these evidentiary rulings. Boman, 810 F.3d at 538–41. These holdings were not disturbed by the Supreme Court's remand.

Boman's last two arguments raised sentencing issues. First, Boman challenged his status as an Armed Career Criminal. Initially, he argued that his prior convictions under 18 U.S.C. § 924(c)(1) for Use of a Firearm During the Commission of a Violent Crime were not separate and distinct criminal episodes, as required by the ACCA. In a supplemental brief, however, Boman relied on the Supreme Court's opinion in Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), to argue that his prior convictions were not predicate offenses under the ACCA because they were not "violent felonies" as defined in 18 U.S.C. § 924(e)(2)(B)(i). Applying the modified categorical approach, we held that Boman's convictions qualified as violent felonies. Boman, 810 F.3d at 541–43. We also held that Boman's convictions were "discrete criminal episodes." Id. at 543–44.

Boman's second sentencing argument challenged the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for use or possession of a firearm or ammunition in connection with another felony offense. Boman argued that the enhancement was improper because the government did not prove by a preponderance of the evidence that Boman committed a felony offense and did not disprove Boman's justification defense. We did not address these arguments because, due to Boman's status as an Armed Career Criminal, the enhancement did not affect his sentence. Id. at 544.

Boman filed a petition for writ of certiorari with the Supreme Court. Following the Court's decision in Mathis, which rejected this court's approach to divisibility, the Court granted Boman's petition and remanded the case. On remand, our focus is limited to whether Boman's prior convictions under 18 U.S.C. § 924(c)(1) qualify as violent felonies under the ACCA. Because we conclude they do not qualify, we must also address whether the district court erred in applying the four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B).

II.

A. Armed Career Criminal

Normally, "[w]e review de novo whether a prior conviction is a predicate offense under the ACCA." United States v. Abbott, 794 F.3d 896, 897 (8th Cir. 2015) (per curiam) (quoting United States v. Humphrey, 759 F.3d 909, 911 (8th Cir. 2014) ). Because, however, Boman did not object to his status under the ACCA on the basis now before us, we review for plain error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005). To succeed on plain error review, Boman must show: (1) an error; (2) the error is plain; (3) the error affects his substantial rights; and (4) "the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (alteration in original) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) ).

At sentencing, the district court found Boman was an Armed Career Criminal because he had three prior convictions for violent felonies. See 18 U.S.C. § 924(e). Boman has a 1995 conviction for Assault within Maritime and Territorial Jurisdiction, which he concedes is a violent felony under the ACCA. Boman argues, however, that his two 1992 convictions under § 924(c)(1) do not qualify as predicate offenses under the force clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(i).

In 1992, § 924(c)(1) stated:

Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years....

Section 924(c) is a predicate offense under the ACCA only if it meets the force clause of the ACCA's definition of violent felony. Under that clause, a prior offense is a violent felony if it "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).

To determine if a prior conviction is a violent felony under the ACCA, courts look to the elements of the crime of conviction, not the underlying facts. See Mathis, 136 S.Ct. at 2248. If a statute lists alternative methods of committing a crime, courts must determine if the...