United States v. Schneider

• Decision Date: 28 September 2018
• Docket Number: No. 17-3034,17-3034
• Parties: UNITED STATES of America Plaintiff - Appellee v. Leland Thomas SCHNEIDER Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

905 F.3d 1088

UNITED STATES of America Plaintiff - Appellee

v.Leland Thomas SCHNEIDER Defendant - Appellant

No. 17-3034

United States Court of Appeals, Eighth Circuit.

Submitted: May 18, 2018

Filed: September 28, 2018

Counsel who presented argument on behalf of the appellant was Rachael Steenholdt, AFPD, of Fargo, ND. The following attorney(s) appeared on the appellant brief; Christopher J. Lancaster, AFPD, of Fargo, ND.

Counsel who presented argument on behalf of the appellee was Jacob T. Rodenbiker, AUSA, of Fargo, ND.

Before BENTON, KELLY, and STRAS, Circuit Judges.

STRAS, Circuit Judge.

We consider whether "willful" aggravated assault under North Dakota law qualifies as a "crime of violence" under the United States Sentencing Guidelines. We conclude that it does not and accordingly vacate and remand for resentencing.

I.

In 2012, Leland Schneider pleaded guilty to felony aggravated assault in North Dakota state court. The conviction arose from a violent domestic dispute in which Schneider pinned down his then-girlfriend and placed his forearm over her throat. When she tried to flee to safety, he kicked the windshield of her car until it broke free, drove off with their two-year-old child, and used the child as a human shield after police officers caught up with him.

The events underlying this case began several years later, when a patrol officer stopped Schneider for a traffic violation and discovered a loaded shotgun in his truck. Not long after, Schneider reported a burglary of his home and listed five boxes of ammunition among the missing items. After these two incidents, the federal government charged him with possessing a firearm and ammunition as a felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). Schneider pleaded guilty.

The Sentencing Guidelines set a higher base offense level for a felon-in-possession who has a previous conviction for a "crime of violence." See U.S.S.G. § 2K2.1(a)(4)(A). At the government's urging, the district court found that Schneider's aggravated-assault conviction qualified as a crime of violence, which increased his recommended Guidelines range. The court sentenced him to a thirty-month prison term. Schneider argued at sentencing that his conviction was not a crime of violence, and he raises the same argument on appeal.

II.

Under the Guidelines, a " ‘crime of violence’ means any offense under federal or state law" that is "punishable by imprisonment for a term exceeding one year" and that either:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a). We will refer to subparagraph (1) as the "force clause" and to subparagraph (2) as the "enumerated-offenses clause." According to the government, Schneider's aggravated-assault conviction satisfies both clauses. Our review is de novo. See United States v. Fields , 863 F.3d 1012, 1013 (8th Cir. 2017).

A.

Under the force clause, our task is to determine whether North Dakota's aggravated-assault statute has "as an element the use, attempted use, or threatened use of physical force." U.S.S.G. § 4B1.2(a)(1). To carry out this task, we analyze the legal definition of Schneider's crime, not his actual acts. The inquiry is straightforward when the statute creates a single crime by listing a single set of elements—"the things the prosecution must prove to sustain a conviction." Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) (internal quotation marks and citation omitted). We examine those elements and ask whether only conduct involving physical force can satisfy them. See, e.g. , United States v. Craig , 630 F.3d 717, 723–24 (8th Cir. 2011). If the answer is yes, the defendant's crime has a physical-force element. If no, it does not. Because this analysis turns on the abstract requirements for a conviction, rather than the defendant's actual conduct, the Supreme Court has named it "the categorical approach." Mathis , 136 S.Ct. at 2248.

Not all statutes are so simple. Some, often referred to as "divisible" statutes, have a more complicated structure. See id. at 2249. They define multiple crimes by listing more than one set of elements. Id. When confronting such a law, we first identify the offense of conviction among the possible alternatives. United States v. McGee , 890 F.3d 730, 735-36 (8th Cir. 2018). We narrow down the possibilities using a limited set of documents, known as Shepard documents. See generally Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)(listing the acceptable documents, which include "the charging document, the terms of a plea agreement or transcript of [the plea] colloquy[,] ... [or] some comparable judicial record"). For example, a court might peek at a charging instrument to see if it lists the particular form of assault to which the defendant pleaded guilty. See United States v. Vinton , 631 F.3d 476, 485–86 (8th Cir. 2011). After identifying the crime, we ascertain its elements and then, as before, ask whether only conduct involving physical force can satisfy them. See United States v. Ossana , 638 F.3d 895, 899–900 (8th Cir. 2011). And, again as before, if the answer is yes, the defendant's crime has a physical-force element. The Supreme Court has labeled this process as "the modified categorical approach." Mathis , 136 S.Ct. at 2249.

The parties agree that North Dakota's aggravated-assault statute defines multiple crimes. It provides that "a person is guilty" if he:

a. Willfully causes serious bodily injury to another human being;

b. Knowingly causes bodily injury or substantial bodily injury to another human being with a dangerous weapon or other weapon, the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury;

c. Causes bodily injury or substantial bodily injury to another human being while attempting to inflict serious bodily injury on any human being; or

d. Fires a firearm or hurls a destructive device at another human being.

N.D. Cent. Code Ann. § 12.1-17-02(1). These four subsections include different acts, committed with different mental states, using different weapons. Depending on the subsection at issue, the jury must find a distinct set of elements. See N.D. Pattern Jury Instructions (Criminal) K-8.01 to .04 (2017); cf. State v. Sheldon , 301 N.W.2d 604, 609–10 (N.D. 1980) (describing the subsections of the aggravated-assault statute as having differing elements). This is the paradigmatic example of a divisible statute.

Determining the offense of conviction is often one of the most difficult questions in a violent-force case. This case is no different. Only two Shepard documents are available, and neither is conclusive. First, the criminal complaint charged Schneider with one count of aggravated assault, but cited both subsections (a) and (c). Second, the trial court's judgment, entered after Schneider's guilty plea, stated only that he was guilty of felony aggravated assault. As the parties here recognize, there is no way to determine whether Schneider's conviction was under subsection (a) or subsection (c). Both are possibilities.

Schneider could have been convicted under either subsection, each of which contains a distinct set of elements. In these situations, "we must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts" satisfy the force clause. Moncrieffe v. Holder , 569 U.S. 184, 190–91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (internal quotation marks, brackets, and citation omitted). If either subsection (a) or (c) does not require physical force, in other words, then Schneider's conviction cannot satisfy the force clause. See United States v. Horse Looking , 828 F.3d 744, 747-49 (8th Cir. 2016) (holding that when the state charges a defendant under two statutory subsections for a single crime and one of those subsections does not satisfy the force clause, the conviction does not satisfy the force clause).

Schneider focuses on subsection (a), which provides that a person is guilty of aggravated assault if he "[w]illfully causes serious bodily injury to another human being." N.D. Cent. Code Ann. § 12.1-17-02(1)(a). North Dakota defines "[w]illfully" as acting "intentionally, knowingly, or recklessly ." Id. § 12.1-02-02(1)(e) (emphasis added). Schneider contends that subsection (a), read together with the definition of "willfully," criminalizes reckless driving, which, as we have held, does not require physical force. He is right.

Any fair reading of subsection (a) leads to the conclusion that it covers reckless driving. The statute's unambiguous terms require only a reckless act that causes serious bodily injury. Nothing in the statute excludes reckless driving, and unsurprisingly, at least one person has been prosecuted and convicted under subsection (a) for reckless driving.¹ Complaint, State v. Suelzle (No. 27-2013-CR-00502); Trial Transcript at 284–85, State v. Suelzle (No. 27-2013-CR-00502). Less surprising still, given the plain statutory text, the North Dakota Supreme Court upheld the conviction on appeal. State v. Suelzle , 876 N.W.2d 485 (N.D. 2016) (unpublished per curiam); cf. State v. Vetter , 826 N.W.2d 334, 337–39 (N.D. 2013) (holding that a vehicle can be a dangerous weapon under subsection (b) of the aggravated-assault statute).

Our case law is clear about what happens next. A statute that criminalizes reckless driving cannot satisfy the force clause. We reached this conclusion in Ossana and have not deviated from it since. 638 F.3d at 903 ; accord United States v. Dawn , 685 F.3d 790, 795 (8th Cir. 2012) ; United States v. Boose , 739 F.3d 1185,...