United States v. Cortrell Ramey

880 F.3d 447
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 22, 2018
Docket16-4328
StatusPublished
Cited by9 cases

This text of 880 F.3d 447 (United States v. Cortrell Ramey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cortrell Ramey, 880 F.3d 447 (8th Cir. 2018).

Opinions

COLLOTON, Circuit Judge.

Cortrell Ramey pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court1 increased Ramey’s base offense level under USSG § 2K2.1(a)(4)(A) based on a prior conviction. The court concluded that Ramey’s 2009 conviction for second-degree assault under Mo. Rev. Stat. § 565.060.1(5) was a prior felony conviction for a “crime of violence” under the guidelines. Ramey appeals, arguing that the district court committed procedural error in making this determination. We affirm.

The sentencing guidelines provide for a base offense level of 20 if the defendant unlawfully possessed a firearm “subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” USSG § 2K2.1(a)(4)(A). The guidelines define “crime of violence” to include an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” USSG § 4B 1.2(a)(1).

The Missouri second-degree assault statute under which Ramey was convicted includes six subsections. Mo. Rev. Stat. § 565.060.1 (2009). The parties appear to agree that each subsection defines a separate offense, and they agree that Ramey was convicted of second-degree assault under § 565.060.1(5). That subsection forbids “[r]ecklessly causing] physical injury to another person by means of discharge of a firearm.” Id. We accept the assumption that the six subsections set forth separate offenses rather than means of committing a single offense. The Missouri Court of Appeals held in In re J.L.T., 441 S.W.3d 183 (Mo. Ct. App. 2014), that subsections (2) and (3) define “separate and distinct offense[s].” Id. at 188 (quoting J.D.B. v. Juvenile Officer, 2 S.W.3d 150, 156 (Mo. Ct. App. 1999)). The Missouri approved jury instructions likewise direct the trial court to insert only one subsection from the statute when defining the elements of assault. MAI-CR 3d 319.12. The notes on use specify that different subsections should not be included in the same jury instruction. Id., Notes on Use 4.

Ramey argues that his conviction under § 565.060.1(5) is not for a crime of violence because the Missouri statute criminalizes reckless conduct, rather than intentional or purposeful acts, so he did not “use” physical force within the meaning of the guideline. In Voisine v. United States, — U.S. -, 136 S.Ct. 2272, 195 L.Ed.2d 736 (2016), however, the Supreme Court rejected Ramey’s proffered distinction between intentional and reckless conduct. Applying 18 U.S.C. § 921(a)(33)(A)(ii) and the term “misdemeanor crime of domestic violence,” the Court held that a “person who assaults another recklessly ‘use[s]’ force, no less than one who carries out that same action knowingly or intentionally.” Voisine, 136 S.Ct. at 2280. Following Voi-sine, this court considered a similar issue under the Armed Career Criminal Act, which defines “violent felony” to include an [449]*449offense that “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). Applying Voisine’s reasoning, we held that reckless conduct “constitutes a ‘use’ of force under the ACCA because the force clauses in 18 U.S.C. § 921 (a)(33)(A)(ii) and the ACCA both define qualifying predicate offenses as those involving the ‘use ... .of physical force’ against another,” United States v. Fogg, 836 F.3d 951, 956 (8th Cir. 2016) (alteration in original).

Like the term “violent felony” under the ACCA, the definition of “crime of violence” under the guidelines includes an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” USSG § 4B1.2(a)(l). We see no reason why “use” of force under the guidelines would mean something different from “use” of force under the ACCA. Consistent with Voisine and Fogg, we conclude that reckless conduct causing injury to another by use of a firearm constitutes a use of force under the guidelines. Section 565.060.1(5) requires proof that the defendant’s reckless discharge of a firearm caused physical injury to another person, so Ramey understandably does not dispute that the statute meets the guideline’s requirement that the defendant’s offense have as an element the use of physical force “against the person of another.”

Ramey points to United States v. Dawn, 685 F.3d 790 (8th Cir. 2012), and United States v. Boose, 739 F.3d 1185 (8th Cir. 2014), where this. court followed circuit precedent in United States v. Ossana,

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Bluebook (online)
880 F.3d 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cortrell-ramey-ca8-2018.