United States Court of Appeals

For the Eighth Circuit

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No. 16-1874

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Arthur Lee Starks, Jr.

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: December 12, 2016

Filed: December 28, 2016

[Unpublished] 

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Before RILEY, Chief Judge, WOLLMAN and SMITH, Circuit Judges.

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PER CURIAM.

Arthur Lee Starks, Jr. pleaded guilty to being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). He appeals from his sentence of 80 months’
imprisonment, arguing that the district court erroneously calculated his offense level

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under § 2K2.1(a)(4)(A) ofthe United States Sentencing Guidelines Manual (U.S.S.G.

or Guidelines) because his underlying Arkansas conviction for domestic battering in

the third degree was not a “crime of violence” within the meaning of that section. He

also argues that his sentence is substantively unreasonable because the district court

considered an improper factor in varying upward from the Guidelines range. We

affirm.

The presentence report (PSR) calculated Starks’s advisory sentencing range

under the 2014 version of the Guidelines. The PSR determined that Starks had a total

criminal history score of 10 and thus that his criminal history category was V. The

PSR also determined that the base offense level was 20 under

U.S.S.G. § 2K2.1(a)(4)(A), because Starks committed the felon-in-possession offense

after sustaining a felony conviction for a crime of violence, namely, a 2008 Arkansas

conviction for domestic battering in the third degree, second offense, in violation of

Arkansas Code Annotated § 5-26-305. The PSR recommended a 2-level reduction

for acceptance of responsibility. The district court adopted the PSR and granted a 3-

level reduction for acceptance of responsibility. Based on a total offense level of 17

and a criminal history category of V, the district court calculated an advisory

sentencing range of 46 to 57 months. The district court varied upward from the

Guidelines range and imposed a sentence of 80 months, giving the following

explanation:

The justification for my upward variance fromthe guideline range is Mr.

Starks’ consistent and violent criminal history. It isto protect the public

from the situation that now Mr. Starks is in possession of a firearm

which, in the Court’s opinion, will escalate that future danger to the

public as well as to his family. It’s also to address his needs for his

alcohol problems and perhaps his mental health needs.

The Honorable James M. Moody, Jr., United States District Judge for the

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Eastern District of Arkansas.

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Starks first argues that the district court committed procedural error in

calculating his Guidelines range because Arkansas Code Annotated § 5-26-305 does

not qualify as a crime of violence under U.S.S.G. § 2K2.1(a)(4)(A). “We review de

novo a district court’s interpretation and application of the guidelines.” United States

v. Rice, 813 F.3d 704, 705 (8th Cir. 2016). As relevant here, the Guidelines define

a “crime of violence” as an offense that is punishable by more than one year’s

imprisonment and that “has as an element the use, attempted use, or threatened use

of physical force against the person of another.” U.S.S.G. § 4B1.2(a). “To 2

determine whether a prior conviction was for a crime of violence, ‘we apply a

categorical approach, looking to the elements of the offense as defined in the . . .

statute of conviction rather than to the facts underlying the defendant’s prior

conviction.’” Rice, 813 F.3d at 705 (quoting United States v. Dawn, 685 F.3d 790,

794 (8th Cir. 2012)). “If the statute of conviction is divisible in that it encompasses

multiple crimes, some of which are crimes of violence and some of which are not, we

apply a modified categorical approach to ‘look at the charging document, plea

colloquy, and comparable judicial records’ for determining which part of the statute

the defendant violated.” Id. (quoting Dawn, 685 F.3d at 794-95). “We then

determine whether a violation of that statutory subpart is a crime of violence.” Id.

The district court did not err in determining that Starks’s 2008 third-degree

domestic battering conviction was for a crime of violence. At the time of conviction,

Arkansas Code Annotated § 5-26-305 provided:

(a) A person commits domestic battering in the third degree if: 

This definition is the “force clause” of the “crime of violence” definition. 2

U.S.S.G. § 4B1.2(a) also defines as a crime of violence any offense punishable by

more than one year’s imprisonment that either qualifies as one of certain enumerated

offenses or falls within the “residual clause.” Because we conclude that the

underlying Arkansas conviction in this case falls within the force clause, we do not

consider the residual clause.

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(1) With the purpose of causing physical injury to a family or

household member, the person causes physical injury to a family

or household member; 

(2) The person recklessly causes physical injury to a family or

household member; 

(3) The person negligently causes physical injury to a family or

household member by means of a deadly weapon; or 

(4) The person purposely causes stupor, unconsciousness, or

physical or mental impairment or injury to a family or household

member by administering to the family or household member,

without the family or household member’s consent, any drug or

other substance.

Because this statute is divisible we apply the modified categorical approach. See

United States v. Eason, 829 F.3d 633, 642 (8th Cir. 2016) (determining that Arkansas

Code Annotated § 5-26-305 is divisible in a case under the Armed Career Criminal

Act). The felony information fromStarks’s underlying conviction alleged that Starks

“with the purpose of causing physical injury to a family or household member, did

cause physical injury to [the victim], a family or household member.” Reviewing the

felony information at the sentencing hearing, the district court determined that “Mr.

Starks was being charged under[] Arkansas Code Annotated 5-26-305, and it appears

further from the information that it was under paragraph (a)(1).” The record thus

establishes that Starks was convicted of violating subsection (a)(1) of § 5-26-305. 

The only remaining question, then, is whether subsection (a)(1) “has as an element

the use, attempted use, or threatened use of physical force against the person of

another.” 

Our precedent establishes thatsubsection (a)(1) falls within the force clause of

U.S.S.G. § 4B1.2(a). In Rice, we held that a subsection of the Arkansas seconddegree battery statute was a crime of violence. That subsection provided that a person

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commits second-degree battery if the person “intentionally or knowingly, without

legal justification, causes physical injury to one he knows to be” a member of certain

enumerated groups. Rice, 813 F.3d at 705. We reasoned that the defendant’s

conviction under this statute “includes the use of violent force as an element ‘since

it isimpossible to cause bodily injury without using force “capable of” producing that

result.’” Id. at 706 (quoting United States v. Castleman, 134 S. Ct. 1405, 1416-17

(2014) (Scalia, J., concurring)). And in United States v. Vinton, we held that a

subsection of a Missouri assault statute “ha[d] as an element the use, attempted use,

or threatened use of physical force against the person of another” because the

subsection covered casesin which a person “[a]ttempts to cause or knowingly causes

physical injury to another person by means of a deadly weapon or dangerous

instrument.” 631 F.3d 476, 485-86 (8th Cir. 2011). Starks argues that physical force

is not an element of § 5-26-305(a)(1) because it is possible to cause bodily injury

intentionally without using physical force, and that other circuit courts that have

considered the issue have come to that conclusion. But we considered these

arguments in Rice, and still held that the offense in question was a crime of violence. 

See 813 F.3d at 706. Accordingly, under our precedent, Arkansas Code Annotated

§ 5-26-305(a)(1) “has as an element the use, attempted use, or threatened use of

physical force against the person of another” and is thus a crime of violence under

U.S.S.G. § 4B1.2(a).

We see no reason to depart from our precedent in this case. “Although one

panel of this court ordinarily cannot overrule another panel, this rule does not apply

when the earlier panel decision is cast into doubt by a decision of the Supreme

Court.” United States v. Williams, 537 F.3d 969, 975 (8th Cir. 2008) (emphasis

removed) (quoting Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 838 (8th Cir.

1997)). Starks contends that Mathis v. United States, 136 S. Ct. 2243 (2016),

supports his argument that Arkansas’s domestic battering statute is broader than the

“crime of violence” definition set forth in U.S.S.G. § 4B1.2(a). In Mathis, the

Supreme Court held that a defendant’s prior convictions under an Iowa burglary

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statute were not “crimes of violence” under the Armed Career Criminal Act because

the Iowa statute was broader than the generic offense of burglary in the Armed Career

Criminal Act. The Court emphasized that in determining whether a prior conviction

wasfor a “crime of violence,” courts must look to the elements of the offense, not the

factual means by which an offense may be committed, even if the statute of

conviction lists alternative factual means. The Iowa burglary statute reached “any

building, structure, [or] land, water, or air vehicle,” but the generic offense of

burglary covers only a “building or other structure.” Id. at 2250 (emphasisremoved). 

The Court concluded that the locations listed in the Iowa statute “are not alternative

elements, going toward the creation of separate crimes,” but instead “they lay out

alternative ways of satisfying a single locational element.” Id. The Court based its

conclusion largely on a decision of the Iowa Supreme Court, but it also instructed that

“if state law fails to provide clear answers,” courts may look to the record materials,

such as “indictments, jury instructions, plea colloquies and plea agreements” to

determine whether the statute describes separate crimes or merely different ways of

committing the same crime. Id. at 2256-57, 2257 n.7.

Mathis does not affect this case, because § 5-26-305 sets forth “alternative

elements,” not merely “alternative ways of satisfying a single [] element.” Id. at

2250. The statute clearly delineates alternative elements, and the judicial record

establishes that Starks was charged under subsection (a)(1). Accordingly, application

of the modified categorical approach was proper, and, applying that approach as

discussed above, a violation of subsection (a)(1) constitutes a crime of violence.

Starks also argues that Voisine v. United States, 136 S. Ct. 2272 (2016),

supports his position that Arkansas Code Annotated § 5-26-305 does not have “as an

element the use, attempted use, or threatened use of physical force against the person

of another.” Starks points to an example used by the Court, in which it stated that

letting a door slip while trying to hold it is not the “use” of force, even though the

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result is that the door catches someone’s fingers, but slamming a door with someone

following close behind is the “use” of force, whether the door was slammed with the

certainty that someone’s fingers would be caught or with only the awareness that

catching someone’s fingers was very likely. Id. at 2279. But the Court offered this

example to support its holding that a “misdemeanor crime of domestic violence”

under 18 U.S.C. § 922(g)(9) includes an offense committed recklessly. See id.

(“Once again, the word ‘use’ does not exclude from § 922(g)(9)’s compass an act of

force carried out in conscious disregard of its substantial risk of causing harm.”). 

Because Voisine concerned the mens rea required for a “use” of force, it does not

affect this case, in which subsection (a)(1) of § 5-26-305 requires the purpose of

causing injury to a family or household member.

Starks also alleges that his sentence is substantively unreasonable because the

district court impermissibly based its upward variance on the need to address Starks’s

alcohol-treatment and mental-health needs, in violation ofTapia v. United States, 564

U.S. 319 (2011). Because Starks did not object on this basis before the district court,

we review for plain error, under which “the defendant must show: (1) an error; (2)

that is plain; and (3) that affects substantial rights.” United States v. Blackmon, 662

F.3d 981, 986 (8th Cir. 2011). The district court justified the sentence based on

Starks’s “consistent and violent criminal history,” as well as the need to protect his

family and the public from the danger he poses by possessing a firearm. The district

court then noted that its sentence was “also to address his needs for his alcohol

problems and perhaps his mental health needs.” We acknowledge that the district

court’s statement can be read as going beyond merely “discussing the opportunities

for rehabilitation within prison,” id. at 987 (quoting Tapia, 564 U.S. at 334), and we

are reminded that Tapia forecloses district courts from imposing or lengthening a

sentence to promote rehabilitation or facilitate a defendant’s participation in a

treatment program. Nevertheless, assuming that the district court erroneously

considered Starks’s needs for alcohol and mental-health treatment in imposing the

sentence, Starks has not shown that he would have received a different sentence

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absent such error. See id. at 987 (“[W]here the effect of the error on the result in the

district court is uncertain or indeterminate—where we would have to speculate—the

appellant has not met his burden of showing a reasonable probability that the result

would have been different but for the error.” (quoting United States v. Pirani, 406

F.3d 543, 553 (8th Cir. 2005) (en banc))); see also United States v. Pickar, 666 F.3d

1167, 1169-70 (8th Cir. 2012) (citing Blackmon and holding no plain error in part

because proper sentencing factors were dominant). Having failed to show that any

error affected his substantial rights, Starks has thus not shown plain error. 

The judgment is affirmed. 

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