United States Court of Appeals
For the Eighth Circuit
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No. 17-2131
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United States of America
Plaintiff - Appellee
v.
Michael Wayne Wadena
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: April 13, 2018
Filed: July 18, 2018
[Published]
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Before COLLOTON, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Michael Wadena pled guilty to one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). Under the Armed Career Criminal Act
(ACCA), a person who is convicted of a violation of § 922(g) “and has three previous
convictions . . . for a violent felony or a serious drug offense, or both, . . . shall be . . .
imprisoned not less than fifteen years.” § 924(e)(1). The district court1 found that
Wadena had three qualifying felony convictions: two convictions for third-degree
assault in violation of Minn. Stat. § 609.223, subdiv. 1, and one conviction for
possession with intent to sell in the fourth degree in violation of Minn. Stat.
§ 152.024, subdiv. 2(2).2 Accordingly, over Wadena’s objection, the court sentenced
him as an armed career criminal and imposed the 180-month mandatory-minimum
sentence in the ACCA. 18 U.S.C. § 924(e). Wadena appeals, arguing that none of
his convictions support the application of the ACCA. Reviewing the issues de novo,
see United States v. Naylor, 887 F.3d 397, 400 (8th Cir. 2018) (en banc), we affirm.
Wadena first contends that his third-degree assault convictions are not “violent
felon[ies]” as that term is defined by the ACCA. To qualify as a “violent felony”
under the statute, the prior conviction must be for “any crime punishable by
imprisonment for a term exceeding one year . . . that . . . has as an element the use,
attempted use, or threatened use of physical force against the person of another.”
§ 924(e)(2)(B)(i). The Supreme Court has interpreted this clause, commonly referred
to as the “force clause,” to require “violent force—that is, force capable of causing
physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133,
140 (2010). As Wadena acknowledges, we held in United States v. Lindsey that the
degree of force required under Minnesota’s second-degree assault statute “requires
the use, attempted use, or threatened use of physical force against another and
therefore qualifies as a violent felony for ACCA purposes.” 827 F.3d 733, 740 (8th
Cir.), cert. denied, 137 S. Ct. 413 (2016). Although Lindsey concerned second-
degree assault and this case concerns third-degree assault, the definition of
“assault”—derived from Minn. Stat. § 609.02, subdiv. 10—is the exact same for each.
1
The Honorable John R. Tunheim, Chief Judge, United States District Court for
the District of Minnesota.
2
For the purposes of this opinion, we assume the statutes at issue are divisible
because the parties have treated them as such without discussion.
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As such, Lindsey controls. The district court properly ruled that Wadena’s third-
degree assault convictions counted as “violent felon[ies].” 18 U.S.C.
§ 924(e)(2)(B)(i).
Wadena next asserts that his Minnesota controlled-substances conviction is not
a “serious drug offense” under the ACCA because the Minnesota statute of conviction
criminalizes more conduct than that covered by the federal statute. A “serious drug
offense” is “an offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled substance.”
§ 924(e)(2)(A)(ii). Wadena was convicted of violating Minn. Stat. § 152.024, subdiv.
2(2), which states: “A person is guilty of controlled substance crime in the fourth
degree if . . . the person unlawfully possesses one or more mixtures containing a
controlled substance . . . with the intent to sell it.” Included in the definition of “sell”
under Minnesota law is an “offer . . . to sell,” id. § 152.01, subdiv. 15a(2), which
Wadena asserts makes the Minnesota statute categorically broader than the ACCA
definition of “serious drug offense.”
This argument fails. As Wadena recognizes, we rejected a similar argument
in United States v. Bynum, where the defendant advocated for a narrow interpretation
of the statutory term “serious drug offense.” 669 F.3d 880, 886 (8th Cir. 2012).
Reasoning that “the term ‘involving[]’ [is] an expansive term that requires only that
the conviction be ‘related to or connected with’ drug manufacture, distribution, or
possession,” we “conclude[d] that knowingly offering to sell drugs is a ‘serious drug
offense’ under the ACCA.” Id. Wadena’s contention thus falls within Bynum’s reach
because his sole argument for escaping application of the ACCA is that an offer to
sell drugs is not a serious drug offense under the statute. The district court correctly
determined that Wadena’s violation of Minn. Stat. § 152.024, subdiv. 2(2) was a
“serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii).
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Because he has three previous convictions qualifying as either “violent
felon[ies]” or “serious drug offense[s],” the district court properly sentenced Wadena
as an armed career criminal. We affirm the sentence.
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