United States Court of Appeals

For the Eighth Circuit

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No. 15-1771

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jamie David Harvey

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota - St. Paul

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 Submitted: February 29, 2016

 Filed: April 28, 2016

[Unpublished]

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Before SMITH, BENTON, and KELLY, Circuit Judges.

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PER CURIAM.

Jamie David Harvey appeals the fifteen-year sentence he received after

pleading guilty to being a felon in possession of a firearm. The district court

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The Honorable JohnR. Tunheim, Chief Judge, United States DistrictCourt for

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the District of Minnesota.
determined that Harvey had three prior convictions for “violent felonies,” asthat term

is defined in 18 U.S.C. § 924(e)(2)(B), and was therefore subject to the fifteen-year

mandatory minimum sentence provided for by 18 U.S.C. § 924(e)(1).

Harvey concedes that one of these three convictions was for a violent felony,

but argues that the other two – both for violating subdivision 1 of Minnesota’s

second-degree assault statute – were not. That subdivision criminalizes “assault[ing]

another with a dangerous weapon.” Minn. Stat. § 609.222, subd. 1. “Assault,” in

turn, is defined as either “an act done with intent to cause fear in another of

immediate bodily harm or death” or “the intentional infliction of or attempt to inflict

bodily harm upon another.” Minn. Stat. § 609.02, subd. 10.

The district court found that subdivision 1 of Minnesota’s second-degree

assault statute is a violent felony because, under either definition of “assault,” it “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). Harvey argues that the offense does

not qualify as a violent felony pursuant to § 924(e)(2)(B)(i) under either definition of

assault.

Harvey’s argument with respect to the first definition of assault is that it is

possible to cause someone to fearimmediate bodily harmor death without threatening

the use of physical force against them. This argument is foreclosed by our decision

in United States v. Schaffer, No. 15-2571, 2016 WL 1425834 (8th Cir. Apr. 12,

2016). There, we held that a conviction for committing an “act with intent to cause

fear in another of immediate bodily harm or death” in violation of Minnesota Statutes

§ 609.2242, subd. 1(1) qualified as a violent felony as defined in 18 U.S.C.

§ 924(e)(2)(B)(i), because the offense “ha[d] as an element the threatened use of

physical force against the person of another.” Id. at *2 (internal quotation marks

omitted). We see no basis to treat the virtually identical language in Minnesota

Statutes § 609.02, subd. 10(1) differently.

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Harvey’s argument with respect to the second definition of assault isforeclosed

by United States v. Rice, 813 F.3d 704 (8th Cir. 2016). Harvey argues that “the

intentional infliction of, or attempt to inflict bodily harm” could be accomplished

without the use or attempted use of physical force through the administration of

poison or the use of infected bodily fluids. But as Schaffer explained, “[o]ur decision

in United States v. Rice rejected a similar argument by reasoning that even though the

act of poisoning a drink does not involve physical force, the act of employing poison

knowingly as a device to cause physical harm does.” Schaffer, 2016 WL 1425834,

at *2 (quoting Rice, 813 F.3d at 706) (internal quotation marks omitted).

We affirm the judgment of the district court.

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