United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-1403

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United States of America, * 

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Martin Larry Wilson, *

* 

Appellant. *

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Submitted: December 9, 2008

Filed: April 20, 2009

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Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Martin Larry Wilson pled guilty to one count of being a felon and domestic

abuse misdemeanant in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

and 922(g)(9). The district court sentenced Wilson to 78 months imprisonment after

finding that his prior Missouri felony conviction for endangering the welfare of a child

in the first degree qualifies as a “crime of violence” under section 2K2.1(a)(4) of the

Sentencing Guidelines. Because we conclude that Wilson’s prior conviction for

endangering the welfare of a child in the first degree is not a crime of violence, we

vacate his sentence and remand for resentencing.
1

“It shall be unlawful for any person . . . who has been convicted in any court

of, a crime punishable by imprisonment for a term exceeding one year . . . [to] possess

in or affecting commerce, any firearm or ammunition . . . .” 18 U.S.C. § 922(g)(1).

On February 28, 1992, Wilson was convicted of theft in the second degree in Linn

County, Iowa, and sentenced to five years imprisonment (suspended) and placed on

two years probation.

2

“It shall be unlawful for any person . . . who has been convicted in any court

of a misdemeanor crime of domestic violence . . . [to] possess in or affecting

commerce, any firearm or ammunition . . . .” 18 U.S.C. § 922(g)(9). On November

29, 2005, Wilson was convicted of simple domestic abuse, a misdemeanor offense,

in Iowa County, Iowa.

3

The Sentencing Guidelines define “crime of violence” as “any offense under

federal or state law, punishable by imprisonment for a term exceeding one year, that --

(1) has as an element the use, attempted use, or threatened use of physical force

-2-

Marengo, Iowa, police officers arrived at Wilson’s home in response to a 911

hang-up call on November 17, 2006, and observed Wilson and his wife arguing in the

yard. Wilson’s wife was bleeding and had significant facial injuries. Officers

separated the two, placing Wilson in a patrol car and escorting his wife into the house.

While questioning the wife, an officer noticed a replica revolver next to a chair in the

living room. The officer asked if there were any other firearms in the house, and the

wife replied that she believed a .22 caliber rifle was hidden in the rafters. An officer

then questioned Wilson, who cooperated and disclosed that the rifle was actually on

top of the entertainment center. When that officer returned to the house, another

officer had already located the rifle.

Wilson pled guilty to one count of knowingly possessing a firearm in violation

of 18 U.S.C. § 922(g)(1)1

 and 922(g)(9),2 which carries a ten-year maximum sentence.

See 18 U.S.C. § 924(a)(2). At sentencing, the district court determined that a base

offense level of 20 was appropriate because, according to the court, Wilson’s prior

Missouri felony conviction for endangering the welfare of a child in the first degree

qualifies as a crime of violence within the meaning of the Sentencing Guidelines.3

 See
against the person of another, or (2) is burglary of a dwelling, arson, or extortion,

involves the use of explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another.” USSG §4B1.2(a); see also id. §2K2.1

comment. (n.1) (noting that “[f]or purposes of this guideline [§2K2.1] . . . ‘crime of

violence’ has the meaning given that term in §4B1.2(a)”).

4

Section 568.045.1(1) reads: “A person commits the crime of endangering the

welfare of a child in the first degree if: (1) [t]he person knowingly acts in a manner

that creates a substantial risk to the life, body, or health of a child less than seventeen

years old[.]” Mo. Rev. Stat. § 568.045.1(1). In 2003, Missouri reclassified this

offense as a class C felony. See 2003 Mo. Legis. Serv. 88 (West).

-3-

United States Sentencing Commission, Guidelines Manual, §2K2.1(a)(4)(A) (setting

a base offense level of 20 if “the defendant committed any part of the instant offense

subsequent to sustaining one felony conviction of [] a crime of violence”). The court

also imposed a two-level upward adjustment for obstruction of justice because Wilson

failed to appear at a court-ordered hearing, increasing his offense level to 22. Wilson

was assessed with six criminal history points, resulting in a criminal history category

of III. However, the court departed upward to category IV based on Wilson’s

extensive criminal record. The court calculated an advisory Guidelines range of 63

to 78 months and then sentenced Wilson to 78 months imprisonment. Absent a prior

felony conviction for a crime of violence, Wilson’s base offense level would have

been 14, see id. §2K2.1(a)(6), his adjusted offense level 16, and his advisory

Guidelines range 33 to 41 months.

According to the Presentence Investigation Report, on April 6, 2000, Wilson

was convicted in Lewis County, Missouri, of endangering the welfare of a child in the

first degree, a Class D felony, in violation of Mo. Rev. Stat. § 568.045.1(1), by

knowingly “act[ing] in a manner that created a substantial risk to the lives of” his two

children, both of whom were “less than seventeen years old.”4

 The conduct

underlying his conviction was “operating a motor vehicle on the highway while

intoxicated with said children in the vehicle.” That same day, he was also convicted
-4-

of driving under the influence. On appeal, Wilson argues that his prior conviction for

child endangerment is not a crime of violence. We review de novo a district court’s

finding that a prior conviction constitutes a crime of violence under the Sentencing

Guidelines. United States v. LeGrand, 468 F.3d 1077, 1081 (8th Cir. 2006), cert.

denied, 127 S. Ct. 2926 (2007).

Earlier this term, this court held that “endangering the welfare of a child, in

violation of Missouri section 568.045.1(1), is not a ‘violent felony’ within the

meaning of the [Armed Career Criminal Act],” 18 U.S.C. § 924(e)(2)(B). United

States v. Gordon, 557 F.3d 623, 628 (8th Cir. 2009). We applied the Supreme Court’s

reasoning from Begay v. United States, 128 S. Ct. 1581 (2008), and found that

“nothing in the statutory definition of [endangering the welfare of a child] suggests

[that] it typically involves violent and aggressive conduct.” Gordon, 557 F.3d at 626

(quotation and alteration omitted). Rather, we observed that “a person can create a

substantial risk to a child’s life, body or health through knowing actions that are

neither violent nor aggressive, and this subsection [Mo. Rev. Stat. § 568.045.1(1)] is

routinely applied to very passive behavior.” Id. (listing Missouri cases in which

defendants were convicted for leaving children unattended near an unfenced pond and

with a physically abusive spouse).

This court has also held that “[t]he definition of ‘crime of violence’ in USSG

§4B1.2(a) is nearly identical to the definition of ‘violent felony’ in 18 U.S.C. §

924(e)(2)(B), and we treat the two as interchangeable.” United States v. Clinkscale,

No. 08-1163, 2009 WL 674139, at *1 (8th Cir. Mar. 17, 2009). Because Missouri’s

felony offense of endangering the welfare of a child in the first degree does not

qualify as a violent felony under the Armed Career Criminal Act, see Gordon, 557

F.3d at 628, it also does not constitute a crime of violence under the Sentencing

Guidelines, see Clinkscale, 2009 WL 674139, at *1. Therefore, the district court

improperly calculated Wilson’s offense level and advisory Guidelines range, which

constitutes significant procedural error. See, e.g., United States v. Spikes, 543 F.3d
-5-

1021, 1023 (8th Cir. 2008). Because we cannot discern what sentence the court would

have imposed under a properly calculated Guidelines range, the procedural error was

not harmless. See id. at 1026. Accordingly, we vacate Wilson’s sentence and remand

to the district court for resentencing.

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