United States v. King

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3822
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
James Andrew King, *
*
Appellant. *

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Submitted: January 15, 2010
Filed: March 26, 2010
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Before GRUENDER and SHEPHERD, Circuit Judges, and LANGE,1 District
Judge.
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GRUENDER, Circuit Judge.

James Andrew King pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g). The district court found that King had three previous
convictions for violent felony offenses and was therefore subject to a minimum term
of 180 months’ imprisonment under the Armed Career Criminal Act (ACCA). The

1
The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota, sitting by designation.
court sentenced King to the statutory minimum. The question presented in this appeal
is whether King’s adjudication of juvenile delinquency in 1995 qualifies as a
conviction for a violent felony. Because we find that question cannot be answered
without resorting to conjecture, we vacate King’s sentence and remand for
resentencing.

I. BACKGROUND

The ACCA provides that a defendant who violates § 922(g) is subject to a
mandatory minimum term of 180 months’ imprisonment if he has “three previous
convictions . . . for a violent felony.” 18 U.S.C. § 924(e)(1). A “previous conviction”
for purposes of § 924(e)(1) “includes a finding that a person has committed an act of
juvenile delinquency involving a violent felony.” § 924(e)(2)(C). The statute defines
the term “violent felony” as

any crime punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying of a
firearm, knife, or destructive device that would be punishable by
imprisonment for such term if committed by an adult that—

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

(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another . . . .

§ 924(e)(2)(B). Under this definition, an act of juvenile delinquency involving the use
or carrying of a firearm, knife, or destructive device may qualify as a violent felony,
but only if the act of delinquency meets the other statutory criteria. Id.

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 King admits that he has two adult convictions for violent felony offenses. And
King does not contest the fact that he was adjudicated a juvenile delinquent in 1995
for violating section 5-73-104 of the Arkansas Code, which at that time provided that

[a] person commits the offense of criminal use of prohibited weapons
if . . . he uses, possesses, makes, repairs, sells, or otherwise deals in any
bomb, machine gun, sawed-off shotgun or rifle, firearm specially made
or specially adapted for silent discharge, metal knuckles, or other
implement for the infliction of serious physical injury or death which
serves no common lawful purpose.

The disputed issue concerns the nature of the underlying act of juvenile delinquency;
more precisely, which part of section 5-73-104 did King violate?

The Government produced two documents to prove the fact of King’s juvenile
adjudication and the nature of the underlying act of delinquency: the delinquent
conduct adjudication order (a fill-in-the-blanks form used by the county chancery
court) and the predisposition report (a one-page report prepared by a juvenile intake
officer). The adjudication order says that King was charged with “criminal use of a
weapon,” in violation of section 5-73-104, but the order does not identify the weapon
or the way that King allegedly used it. The label “criminal use of a weapon” is
ambiguous; for while the title of section 5-73-104 is “criminal use of prohibited
weapons,” the statute criminalizes using, possessing, making, repairing, selling, or
otherwise dealing in prohibited weapons. Effectively, “criminal use” is defined to
include simple possession of certain weapons and various other acts that might not
constitute actual use of such weapons.

The predisposition report does not resolve the ambiguity regarding the weapons
charge, though it does recite some of the relevant facts (“Andy” is the defendant):

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 On 4-9-95, 911 received a disturbance call that Andy was involved
in. As the deputy was on his way to the call he saw Andy walking
carrying a rifle. Statements were made to the officers that shots had been
fired. Also, at one point Andy had a knife and was told to drop the knife,
which he did. (These actions took place at the King’s home after the
fight at [a] relative’s home.) Andy and his brother Tim had been fighting
at his relative’s home, upsetting family members enough that they called
911 asking for help. The boys were physically fighting and calling each
other names.2

King conceded at sentencing that the predisposition report shows that he possessed
a rifle. Nevertheless, King argued that his juvenile adjudication could not be counted
as a conviction for a violent felony because neither the predisposition report nor the
adjudication order establish that the rifle he possessed was sawed off (sawed-off rifles
are prohibited under section 5-73-104, but the statute says nothing about typical full-
length rifles).

The district court accepted the premise that the records of King’s juvenile
adjudication do not conclusively establish that he possessed a sawed-off rifle. But the
court suggested that it need not determine what weapon King was charged with
“using” (i.e., using, possessing, making, repairing, selling, or otherwise dealing in)
because the fact of King’s juvenile adjudication proved that King possessed either a
sawed-off rifle or some “other implement for the infliction of serious physical injury
or death which serves no common lawful purpose.” As the court put it,

to be legitimately convicted under the statute [section 5-73-104], he
would have to be in possession of a sawed-off rifle, or, you know, I
mean, that’s the way it’s charged, “or other implement for the infliction
of serious physical injury or death which serves no common lawful
purpose.” The knife is not described, but the knife could meet that

2
We have normalized the capitalization and corrected obvious punctuation
errors.

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 definition, depending on what it was. I mean, an ordinary pocketknife
has lots of lawful purposes, but there may be some kinds of knives that
have no purpose other than inflicting injury on a human being. But he
was convicted of possessing one of these kinds of implements that has
no purpose other than infliction of physical injury or death and which
can serve no common lawful purpose.

The court went on to find that this case “is directly on point with Vincent,” referring
to a decision in which we held that the defendant’s previous conviction under section
5-73-104 was for a violent felony. United States v. Vincent (Vincent I), 519 F.3d 732,
733-34 (8th Cir. 2008), vacated, 555 U.S. ---, 129 S. Ct. 996 (2009). Based on these
considerations, the court found that King’s juvenile adjudication qualifies as a
conviction for a violent felony and sentenced him to the mandatory minimum term
prescribed by § 924(e)(1).

II. DISCUSSION

As we said at the outset, the question presented in this appeal is whether King’s
adjudication of juvenile delinquency in 1995 qualifies as a conviction for a violent
felony. We begin our analysis by winnowing that general question down to more
manageable size. We can state with confidence that the underlying act of juvenile
delinquency satisfies one of the criteria for classification as a violent felony, since it
would be punishable by imprisonment for more than one year if committed by an
adult. See 18 U.S.C. § 924(e)(2)(B); Ark. Code Ann. §§ 5-73-104(c) (1995)
(providing that a violation of the statute is at least a Class D felony), 5-4-401(a)(5)
(1995) (providing that the maximum sentence for a Class D felony is six years’
imprisonment). And King has never challenged the notion that his act of juvenile
delinquency involved the use or carrying of a firearm or knife, so we will assume for
purposes of this appeal that the use-or-carry provision of § 924(e)(2)(B) is satisfied
as well. The Government does not argue that the underlying act of juvenile
delinquency “has as an element the use, attempted use, or threatened use of physical

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force against the person of another.” § 924(e)(2)(B)(i). Nor does the Government
argue that the act of juvenile delinquency “is burglary, arson, or extortion, [or]
involves use of explosives.” § 924(e)(2)(B)(ii). The dispositive question thus
becomes whether King’s juvenile adjudication was for an act of delinquency that
“otherwise involves conduct that presents a serious potential risk of physical injury
to another.” Id.

After Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), a prior
offense fits within the ACCA’s “otherwise” clause only if it “pose[s] a similar degree
of risk of physical injury as the example crimes and [is] similar in kind to the example
crimes.” United States v. Williams, 537 F.3d 969, 972 (8th Cir. 2008) (citing Begay,
128 S. Ct. at 1585-86). An offense is considered “similar in kind” to burglary, arson,
extortion, and crimes involving use of explosives if the offense “typically involve[s]
purposeful, violent, and aggressive conduct.” United States v. Gordon, 557 F.3d 623,
626 (8th Cir. 2009) (alteration in original) (quoting Begay, 128 S. Ct. at 1586).

To decide whether an adult conviction meets the two-part test set out in Begay,
courts must apply the “categorical approach” adopted by the Supreme Court in Taylor
v. United States, 495 U.S. 575 (1990). See Nijhawan v. Holder, 557 U.S. ---, 129 S.
Ct. 2294, 2299 (2009). That approach calls for considering the relevant offense
“generically, that is to say, . . . in terms of how the law defines the offense and not in
terms of how an individual offender might have committed it on a particular
occasion.” Begay, 128 S. Ct. at 1584. We have joined several other circuits in
holding that “the categorical approach should also be used in examining . . . a prior
juvenile conviction.” United States v. Kirkland, 450 F.3d 804, 807 (8th Cir. 2006)
(citing United States v. Richardson, 313 F.3d 121, 126, 128 (3d Cir. 2002)); accord
United States v. Nevels, 490 F.3d 800, 808-09 (10th Cir. 2007) (collecting cases).
Although Kirkland examined a juvenile adjudication under the ACCA’s “has as an
element” clause, we are convinced that the categorical approach must also be applied
in considering a juvenile adjudication under the ACCA’s “otherwise” clause. We

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apply the categorical approach in considering adult convictions under either clause,
and we see no reason why juvenile adjudications should be treated any differently.
See, e.g., United States v. Salean, 583 F.3d 1059, 1061 (8th Cir. 2009) (applying the
categorical approach in considering an adult conviction under the “has as an element”
clause), cert. denied, 559 U.S. ---, 2010 WL 198049 (Feb. 22, 2010); Gordon, 557
F.3d at 625 (applying the categorical approach in considering an adult conviction
under the “otherwise” clause). Thus, we are concerned with how the law defines
King’s act of juvenile delinquency, rather than with ascertaining his actual conduct
on April 9, 1995.3 See Nevels, 490 F.3d at 808-09; Richardson, 313 F.3d at 127-28.

The Supreme Court has said that “[the] categorical approach requires courts to
choose the right category. And sometimes the choice is not obvious.” Chambers v.
United States, 555 U.S. ---, 129 S. Ct. 687, 690 (2009). Here, the “right category”
cannot be determined solely from the fact of King’s juvenile adjudication, for section
5-73-104 “places together in a single numbered . . . section several different kinds of
behavior,” see id. at 691. Moreover, section 5-73-104 criminalizes behavior involving
several different kinds of weapons, including a catch-all class of weapons that
includes every conceivable “implement for the infliction of serious physical injury or
death which serves no common lawful purpose.” Under these circumstances, the
district court was permitted to “look beyond the complete statutory definition” to
sources such as “the charging document . . . [or] some comparable judicial record” to
determine which part of section 5-73-104 King violated (i.e., “the right category”).
See Williams, 537 F.3d at 973 (second quotation from Shepard v. United States, 544
U.S. 13, 26 (2005)); see also Nijhawan, 129 S. Ct. at 2299. The court was aware of
the adjudication order and the predisposition report, but the court did not determine
which part of section 5-73-104 King violated. Instead, the court found that the

3
Throughout this opinion, we use the ACCA term “act of juvenile delinquency”
in a generic sense, analogous to how we use the terms “offense” or “crime” when
applying the categorical approach in cases involving contested adult convictions. See
Begay, 128 S. Ct. at 1584; Williams, 537 F.3d at 972 n.1.

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underlying act of juvenile delinquency necessarily involved possessing either a
sawed-off rifle or some “other implement for the infliction of serious physical injury
or death,” such as a type of knife that “serves no common lawful purpose.”

We hold that the district court misapplied the categorical approach by failing
to “choose the right category” in which to place the underlying act of juvenile
delinquency; indeed, the court failed to choose a category at all. On the present
record, we cannot determine in the first instance whether King’s juvenile adjudication
involved possessing a sawed-off rifle as opposed to possessing some “other
implement,” such as a knife. If we put the Government’s proof in its best light, the
most we can say is that King was likely charged with possession of a prohibited
weapon.4 Although the narrative in the predisposition report indicates that King
possessed a rifle and a knife, it does not identify which weapon King was charged
with possessing. In the end, we cannot choose one of these categories without
resorting to conjecture. Thus, we cannot affirm King’s sentence, for it should go

4
Again, we are assuming for purposes of this appeal that King’s juvenile
adjudication satisfies the use-or-carry provision of § 924(e)(2)(B), even though that
requirement apparently was overlooked by the parties and the district court. Indeed,
the Government’s position at sentencing and on appeal appears to be that King was
charged with simple possession of a prohibited weapon. See Government’s Br. at 6
(“[T]hough King argues that he was not in possession of a sawed-off rifle, his
conviction serves as conclusive proof that he possessed a weapon which could have
inflicted serious physical injury or death on another.” (emphasis added)); id. at 14
(“King’s [juvenile] conviction conclusively establishes that he was in possession of
a weapon which had the capacity to inflict serious physical injury or death . . . .”
(emphasis added)). Obviously, a person can possess a weapon without using or
carrying it, but we are willing to assume that the underlying act of juvenile
delinquency in this case involved carrying a firearm or knife rather than possession
simpliciter. We will go no further than that, however, since the Government has not
proved that King was charged with using a weapon, in the sense of actual use (e.g.,
brandishing or firing the weapon). For the sake of concision, we will continue to refer
to the crime of “possessing” a weapon rather than “possessing by carrying.”

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without saying that a sentence enhancement may not be applied on the basis of
guesswork. See United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007) (“[I]t
is an embarrassment to the law when judges base decisions of consequence on
conjectures . . . .”), rev’d on other grounds, 555 U.S. ---, 129 S. Ct. 687 (2009).

The Government suggested at sentencing that the uncertainty concerning the
underlying act of juvenile delinquency did not matter because this court had held that
any conviction under section 5-73-104 “necessarily is going to be a crime of violence
[i.e., violent felony] as 924(e) would define it.” The district court adopted the
Government’s suggestion, finding that our decision in Vincent I was controlling. The
Government’s and the district court’s interpretation of Vincent I was too broad.

To be sure, we held in Vincent I that the defendant’s previous conviction under
section 5-73-104 was for a violent felony. 519 F.3d at 733-34. But the underlying
crime at issue in Vincent I involved the use or possession of a sawed-off shotgun.
Having decided that use or possession of a sawed-off shotgun fit within the ACCA’s
“otherwise” clause, we had no occasion to consider whether the crime of possessing
some “other implement for the infliction of serious physical injury or death,” such as
a type of knife that “serves no common lawful purpose,” would also qualify as a
violent felony. And we certainly did not decide, once and for all, that every
conviction for violating section 5-73-104 qualifies as a conviction for a violent felony.

In any event, after King had been sentenced, the Supreme Court granted
Vincent’s petition for a writ of certiorari, vacated our decision in Vincent I, and
remanded for further consideration in light of Begay and Chambers. Vincent v. United
States, 555 U.S. ---, 129 S. Ct. 996 (2009). On remand, we made clear that Vincent’s
previous conviction under section 5-73-104 involved simple possession of a sawed-off
shotgun. United States v. Vincent (Vincent II), 575 F.3d 820, 824-25 (8th Cir. 2009),
petition for cert. filed, --- U.S.L.W. --- (U.S. Dec. 28, 2009) (No. 09-8320). Applying
the “two-part test” set out in Begay and applied in Chambers, id. at 825, we held that

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“possession of a sawed-off shotgun is similar, in kind as well as degree of risk posed,
to the offenses listed in § 924(e),” id. at 827. Hence, we again concluded that
Vincent’s previous conviction was for “an ACCA-qualifying felony.” Id. But we
again had no occasion to address the crime of possessing some “other implement,”
such as a particularly dangerous knife, and we again did not purport to decide whether
every conviction for violating section 5-73-104 qualifies as a conviction for a violent
felony.

We acknowledge that Vincent II sometimes refers to “possession of a dangerous
weapon” rather than “possession of a sawed-off shotgun.” See 575 F.3d at 825
(“Possession of a dangerous weapon that has no lawful purpose creates a serious
potential risk of physical injury to others.”); id. at 826 (“Possession of a weapon that
has only unlawful purposes makes it ‘more likely that an offender, later possessing a
gun, will use that gun deliberately to harm a victim.’” (quoting Begay, 128 S. Ct. at
1586)). But there is no doubt that the actual question presented was whether
Vincent’s previous conviction for possession of a sawed-off shotgun qualified as a
conviction for a violent felony. Id. at 824-25, 827. Likewise, it is plain that our
holding relates to the crime of possessing a sawed-off shotgun, since key parts of our
analysis identify attributes of sawed-off shotguns that are not necessarily shared by
other dangerous weapons, such as knives. See, e.g., id. at 825 (“Sawed-off shotguns
‘are inherently dangerous and lack usefulness except for violent and criminal
purposes.’” (quoting United States v. Childs, 403 F.3d 970, 971 (8th Cir. 2005))); id.
at 826 (“Like explosives, a sawed-off shotgun can inflict indiscriminate carnage.”).
Thus, while simple possession of a sawed-off shotgun meets the two-part test, it does
not necessarily follow that possession of every other weapon that Arkansas sees fit to
criminalize will also meet the test.5

5
We noted in Vincent II that “the Arkansas Supreme Court has held that a
conviction for use of each prohibited weapon listed in [section 5-73-104]—including
a sawed-off shotgun—has the element that the weapon ‘will inflict serious physical
injury or death and serves no lawful purpose.’” 575 F.3d at 823 (quoting Bridges v.

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 At present, we decline to decide in the abstract whether the crime of possessing
a generic “implement for the infliction of serious physical injury or death which serves
no common lawful purpose” (or a knife with those characteristics) qualifies as a
violent felony under the ACCA’s “otherwise” clause. The Government did not brief
that question because it simply assumed that Vincent II was controlling. In the
absence of a threshold finding about the underlying act of juvenile delinquency,
addressing all of the various ways that King might have violated section 5-73-104
would be unwise; in fact, it would almost certainly produce a partially advisory
opinion. Accordingly, we remand to the district court for further proceedings
consistent with our description of the categorical approach and our explanation of the
holding in Vincent II.6

Arkansas, 938 S.W.2d 561, 563 (Ark. 1997)). We gave at least some weight to the
Arkansas Supreme Court’s narrowing interpretation in finding that simple possession
of a sawed-off shotgun poses a similar degree of risk of physical injury as the § 924(e)
example crimes (burglary, arson, extortion, and crimes involving use of explosives).
See Vincent II, 575 F.3d at 825. After Begay, however, “the degree of risk of physical
injury is only half of the analysis.” Williams, 537 F.3d at 972. We went on to hold
in Vincent II that possession of a sawed-off shotgun is similar in kind to the example
crimes. 575 F.3d at 825-27. But it does not necessarily follow that possession of
every other weapon prohibited by section 5-73-104 (e.g., metal knuckles) is similar
in kind to burglary, arson, etc.
6
If it is possible to determine on remand that King’s juvenile adjudication
involved possessing a sawed-off rifle, then Vincent II will control, even though
Vincent II addressed the crime of possessing a sawed-off shotgun. In our view, the
crimes of possessing a sawed-off shotgun and possessing a sawed-off rifle “amount
to variations on a single theme,” so the district court may “consider them as together
constituting a single category.” See Chambers, 129 S. Ct. at 691. If, on the other
hand, it is not possible to determine whether King’s juvenile adjudication involved
possessing a sawed-off rifle as opposed to possessing some “other implement,” such
as a knife, then Vincent II is not on all fours with this case.

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 We do not impose any limitations on the evidence that the district court may
consider on remand, so the court “can hear any relevant evidence . . . that it could have
heard at the first hearing,” United States v. Dunlap, 452 F.3d 747, 750 (8th Cir. 2006)
(quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992)). We note that
this marks a departure from what we have described as “the traditional path” of
limiting the Government to one bite at the apple. United States v. Gammage, 580 F.3d
777, 779-80 (8th Cir. 2009). We are convinced, however, that the circumstances in
this case permit us to remand without limitations. See Dunlap, 452 F.3d at 750. In
particular, both the Government and the district court mistakenly relied on an
excessively broad interpretation of Vincent I, which might have impeded full
development of the record. Perhaps more importantly, defense counsel did not clearly
explain his objection to the sentence enhancement, either in his presentence
memorandum or at the sentencing hearing. We are convinced that this objection was
sufficient to preserve the issue for appellate review, but counsel’s convoluted
explanation seemingly added to the confusion about how to apply the categorical
approach. Now that the issue is properly framed, we see no good reason to foreclose
further development of the record.

Finally, we wish to make clear that nothing in this opinion should be read as
casting doubt on the validity of King’s juvenile adjudication. To the extent King
makes a collateral attack on the validity of the 1995 adjudication, we summarily reject
his argument. See Daniels v. United States, 532 U.S. 374, 382 (2001) (“[I]f, by the
time of sentencing under the ACCA, a prior conviction has not been set aside on direct
or collateral review, that conviction is presumptively valid and may be used to
enhance the federal sentence.”); United States v. Reyes-Solano, 543 F.3d 474, 478 (8th
Cir. 2008) (“Deprivation of the constitutional right to counsel is the only ground upon
which a prior conviction used to enhance a federal sentence may be collaterally
attacked.” (citing Custis v. United States, 511 U.S. 485, 487 (1994))). We presume
that King’s juvenile adjudication is valid; in other words, we presume that King
violated section 5-73-104. But the categorical approach still required the district court

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to “choose the right category” in which to place the underlying act of juvenile
delinquency, see Chambers, 129 S. Ct. at 690, and the presumption of validity does
not justify resorting to conjecture about which part of section 5-73-104 King violated.
Deciding whether the right category is so uncertain that the § 924(e)(1) enhancement
cannot be applied is distinct from the question whether the adjudication is valid—in
this instance, one has nothing to do with the other.

III. CONCLUSION

For the foregoing reasons, we vacate King’s sentence and remand for
resentencing.
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