United States Court of Appeals
For the Eighth Circuit
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No. 18-1273
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Trudale Raymond Williams
lllllllllllllllllllllDefendant - Appellant
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No. 18-1274
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Demario Jaqun Jefferson
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the District of Minnesota - St. Paul
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Submitted: February 11, 2019
Filed: June 13, 2019
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Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Trudale Williams and Demario Jefferson appeal the sentences imposed by the
district court1 after they each pleaded guilty to possessing a firearm after being
convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). We address Williams’s
arguments first, then Jefferson’s, and we affirm both sentences.
I
Section 2K2.1 of the U.S. Sentencing Guidelines establishes the base offense
level for offenses committed under § 922(g)(1). The applicable base offense level is
24 “if the defendant committed any part of the instant offense subsequent to
sustaining at least two felony convictions of either a crime of violence or a controlled
substance offense.” USSG § 2K2.1(a)(2). At the time of sentencing, Williams had
two prior felony convictions: a 2009 conviction for simple robbery, in violation of
Minn. Stat. § 609.24, and a 2012 conviction for possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). In calculating his
base offense level, the district court characterized the robbery conviction as a “crime
of violence” and the § 924(c)(1) conviction as a “controlled substance offense.”
Williams objected to both characterizations, but the court overruled his objections
and sentenced him to 100 months of imprisonment, the bottom of the Guidelines
1
The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.
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range. On appeal, we review de novo whether a prior conviction qualifies as a crime
of violence or controlled substance offense under the Guidelines. United States v.
Tessmer, 659 F.3d 716, 717 (8th Cir. 2011) (per curiam); United States v. Robertson,
474 F.3d 538, 540 (8th Cir. 2007).
A
As Williams acknowledges, his argument that Minnesota robbery does not
qualify as a crime of violence under the Guidelines is foreclosed by precedent. We
have previously held that Minnesota simple robbery meets the Armed Career
Criminal Act’s (ACCA) definition of “violent felony” under the force clause. See
United States v. Pettis, 888 F.3d 962, 964–66 (8th Cir. 2018), cert. denied, 139 S. Ct.
1258 (2019). Because the ACCA’s force clause is nearly identical to the force clause
contained in the Guidelines’ definition of crime of violence, we construe the clauses
interchangeably. United States v. Hall, 877 F.3d 800, 806 (8th Cir. 2017), cert.
denied, 139 S. Ct. 1254 (2019). Thus, Williams’s 2009 robbery conviction is a crime
of violence. See United States v. Robinson, No. 18-1420, slip op. at 3 (8th Cir. June
10, 2019) (per curiam); United States v. Bjerke, 744 F. App’x 319, 322 (8th Cir.
2018) (per curiam), cert. denied, No. 18-6993, 2019 WL 2078123 (U.S. May 13,
2019).
B
The more complex issue is whether Williams’s 2012 conviction under
§ 924(c)(1) qualifies as a controlled substance offense under the Guidelines. A
controlled substance offense is “an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits the manufacture, import,
export, distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense.” USSG
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§ 4B1.2(b); see id. § 2K2.1 cmt. n.1 (incorporating this definition). To determine
whether a prior conviction meets this definition, we apply the “categorical approach,”
under which we look to the elements of the crime of conviction rather than how a
particular defendant might have committed the offense. United States v. Robinson,
639 F.3d 489, 495 (8th Cir. 2011). Where a statute is “divisible,” that is, lists
multiple elements in the alternative and “thereby define[s] multiple crimes,” we apply
the “modified categorical approach,” examining a limited class of
documents—including the indictment, jury instructions, plea agreement, and plea
colloquy—to determine which crime the defendant was convicted of. Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016). We can then compare the elements of
that crime to the Guidelines’ definition.
To determine whether a statute is divisible, “we ascertain ‘which words or
phrases in the statute are elements of the crime,’ as opposed to the means, or specific
facts, of satisfying these elements.” United States v. McMillan, 863 F.3d 1053, 1056
(8th Cir. 2017) (quoting United States v. Headbird, 832 F.3d 844, 847 (8th Cir.
2016)). “The elements of a crime ‘are what the jury must find beyond a reasonable
doubt to convict the defendant; and at a plea hearing, they are what the defendant
necessarily admits when he pleads guilty.’” Id. (quoting Mathis, 136 S. Ct. at 2248).
“When analyzing which words or phrases of a statute form the elements of a crime,
courts may look to the statute of prior conviction, . . . court decisions, and, as a last
resort, ‘the record of a prior conviction itself.’” Id. at 1057 (quoting Mathis, 136 S.
Ct. at 2256).
Section 924(c)(1) applies to “any person who, during and in relation to any
crime of violence or drug trafficking crime . . . for which the person may be
prosecuted in a court of the United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm.” Thus, to violate § 924(c)(1), the
defendant must have committed either a “crime of violence” or a “drug trafficking
crime.” We have previously concluded that these terms are alternative elements of
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§ 924(c)(1), rather than means. United States v. Boman, 873 F.3d 1035, 1041 (8th
Cir. 2017). In Williams’s case, this means that he “necessarily admitted” that he
committed a drug trafficking crime when he pleaded guilty to violating § 924(c)(1).
Id. (quoting Mathis, 136 S. Ct. at 2255). The term “drug trafficking crime” means
“any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.),
the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter
705 of title 46.” § 924(c)(2). This definition is quite broad, and even the government
acknowledges that some felonies within it may not meet the Guidelines’ definition
of a controlled substance offense. Williams argues that these underlying felonies are
merely alternative means of committing a drug trafficking crime and that he did not
admit to committing any particular underlying felony when he pleaded guilty to
violating § 924(c)(1).
We disagree. Our case law indicates that the underlying felony is an element
of—not merely a means of committing—the § 924(c)(1) offense. To prove a
violation of § 924(c)(1), “the jury . . . must find that the defendant committed all the
acts necessary to be subject to punishment for the underlying offense.” Boman, 873
F.3d at 1041 (cleaned up); see Rosemond v. United States, 572 U.S. 65, 71 (2014)
(noting that a § 924(c) conviction requires the prosecutor to “prove the commission
of a predicate (violent or drug trafficking) offense”). Even if the underlying felony
is not separately charged, there must be proof beyond a reasonable doubt of all of the
elements of that offense to sustain the § 924(c)(1) conviction. See Myers v. United
States, 993 F.2d 171, 172 (8th Cir. 1993) (per curiam). This makes the specific
underlying felony an element of the § 924(c)(1) offense. See Mathis, 136 S. Ct. at
2250.2
2
The Guidelines Commentary accompanying the definition of controlled
substance offense is consistent with this approach. It clarifies that a § 924(c) offense
qualifies as a controlled substance offense if the underlying felony meets the
definition of a controlled substance offense. USSG § 4B1.2 cmt. n.1. That
instruction necessarily requires a reviewing court to examine the record of conviction
to determine the nature of the underlying felony using the modified categorical
approach.
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Williams’s record of conviction confirms that the underlying felony is an
element of the § 924(c)(1) offense. See Mathis, 136 S. Ct. at 2256. Williams’s
indictment alleged that he “did knowingly use and carry a firearm during and in
relation to [a] drug trafficking crime . . . namely, conspiracy to distribute controlled
substances.” Thus, when Williams pleaded guilty, he did not admit to committing
just any drug trafficking crime; he conceded guilt as to a particular underlying
felony. This reaffirms our conclusion that the felony is an element of § 924(c)(1).
See Mathis, 136 S. Ct. at 2257. Accordingly, the modified categorical approach
applies.
Applying the modified categorical approach, we conclude that Williams’s
conviction meets the definition of a controlled substance offense. Williams’s
underlying felony was conspiracy to distribute controlled substances, which is a
controlled substance offense. See United States v. Mendoza-Figueroa, 65 F.3d 691,
694 (8th Cir. 1995) (en banc). Because his underlying felony qualifies as a controlled
substance offense, his conviction under § 924(c)(1) does too. USSG § 4B1.2(b) cmt.
n.1. The district court accordingly committed no procedural error in calculating
Williams’s base offense level.
II
Jefferson did not object to his Guidelines range of 70 to 87 months of
imprisonment, followed by a term of supervised release of one to three years, but
asked for a downward variance to 60 months. The district court imposed a 70-month
sentence and a three-year term of supervised release. He appeals his sentence as
substantively unreasonable and argues that his period of supervised release is
unconstitutional. We review for an abuse of discretion. United States v. Clayton, 828
F.3d 654, 657 (8th Cir. 2016). “A sentencing court abuses its discretion if it fails to
consider a relevant factor that should have received significant weight, gives
significant weight to an improper or irrelevant factor, or considers only the
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appropriate factors but commits a clear error of judgment in weighing those factors.”
United States v. Cook, 698 F.3d 667, 670 (8th Cir. 2012) (quoting United States v.
Watson, 480 F.3d 1175, 1177 (8th Cir. 2007)). Because Jefferson’s sentence was
within the Guidelines range, it is entitled to a “presumption of reasonableness.” Rita
v. United States, 551 U.S. 338, 347 (2007).
Jefferson argues that the district court failed to properly weigh his mitigating
personal history. At sentencing, the district court acknowledged Jefferson’s
mitigating circumstances. The court concluded, however, that these were
counterbalanced by several aggravating factors, including Jefferson’s participation
in “a very dangerous, violent gang” and his “pretty lengthy criminal history.” Under
these circumstances, the court did not abuse its discretion by sentencing Jefferson to
a period of incarceration at the bottom of the Guidelines range. And it was neither
unconstitutional nor an abuse of discretion to impose a three-year term of supervised
release.
III
For the reasons stated above, we affirm both sentences.
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