United States Court of Appeals

For the Eighth Circuit

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No. 16-1304

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Richard Angelo McFee

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: November 14, 2016

 Filed: November 17, 2016

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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

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MURPHY, Circuit Judge.

On May 10, 2015 Richard Angelo McFee discharged a firearm into an

occupied residence. McFee was subsequently indicted on one count of being a felon

in possession of a firearm to which he pled guilty. See 18 U.S.C. § 922(g)(1). At

sentencing the district court determined that he had three prior convictions that

qualified as Armed Career Criminal Act (ACCA) predicate offenses. The court then

sentenced him to 180 months imprisonment. McFee appeals, arguing that his prior
conviction under Minn. Stat. § 609.713, subd. 1 (2004) for making terroristic threats

does not qualify as an ACCA predicate offense. We vacate McFee's sentence and

remand for resentencing.

We review de novo whether a conviction qualifies as an ACCA predicate

offense. United States v. Headbird, 832 F.3d 844, 846 (8th Cir. 2016). The ACCA

imposes a mandatory minimum fifteen year sentence if a defendant has been

convicted as a felon in possession of a firearm "and has three previous convictions

. . . for a violent felony." 18 U.S.C. § 924(e)(1). The ACCA defines "violent felony"

to include any federal or state offense punishable by more than one year

imprisonment that either: "(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, [or] involves use of explosives." Id. § 924(e)(2)(B). The former is known

as the force clause and the latter is known as the enumerated clause. See United

States v. Jordan, 812 F.3d 1183, 1185 (8th Cir. 2016). Since McFee's prior

conviction isfor terroristic threats, the only issue here is whether 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). 

To determine whether a prior conviction qualifies as an ACCA predicate

offense under the force clause, we typically "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." United States v. Rice, 813

F.3d 704, 705 (8th Cir. 2016) (quoting United States v. Dawn, 685 F.3d 790, 794 (8th

Cir. 2012)) (alteration in Dawn). If the statute of conviction is divisible however in

that it defines multiple crimes, some of which are ACCA predicate offenses "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. "We then determine whether

a violation of that statutory subpart is" an ACCA predicate offense. Id.

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Minnesota's terroristic threats statute makes it a crime to "threaten[], directly

or indirectly, to commit any crime of violence with purpose to terrorize another . . .

or in a reckless disregard of the risk of causing such terror." Minn. Stat. § 609.713,

subd. 1 (2004). The statute then statesthat "'crime of violence' has the meaning given

'violent crime' in section 609.1095, subdivision 1, paragraph (d)." Id. Section

609.1095, subd. 1(d) (2004) provides a list of crimes that qualify as "violent

crime[s]." 

Some of the crimes listed in Minn. Stat. § 609.1095, subd. 1(d) (2004) qualify

as ACCA predicate offenses and some do not. See United States v.

Sanchez-Martinez, 633 F.3d 658, 660 (8th Cir. 2011). A Minnesota terroristic threats

conviction thus is not an ACCA predicate offense under the categorical approach. 

See Rice, 813 F.3d at 705. We must therefore decide whether we may apply the

modified categorical approach to determine which crime McFee threatened to

commit. See id. We may only apply the modified categorical approach if the statue

is divisible. See Headbird, 832 F.3d at 846. 

To determine whether Minnesota's terroristic threats statute is divisible, we

must ascertain "which words or phrases in the statute are elements of the crime" as

opposed to the means, or specific facts, of satisfying these elements. Headbird, 832

F.3d at 847. A list of alternative elements is divisible, but a list of alternative means

is not. See Mathis v. United States, 136 S. Ct. 2243, 2256 (2016). The elements of

a crime "are what the jury must find beyond a reasonable doubt to convict the

defendant; and at a plea hearing, they are what the defendant necessarily admits when

he pleads guilty." Id. at 2248 (citation omitted). The specific facts underlying a prior

conviction, however, are "mere real-world things—extraneous to the crime's legal

requirements." Id. In Mathis the Supreme Court held that when analyzing which

words or phrases of a statute constitute the elements of a crime, courts may look to

state court decisions, the statute of prior conviction, and, as a last resort, "the record

of a prior conviction itself." Id. at 2256. 

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We conclude that the Minnesota terroristic threats statute's definition of "crime

of violence" is not divisible. The statutory construction here supports that

conclusion. In Headbird we concluded that if a phrase is defined in a separate

statutory section, that "provides textual support" that the definition is a list of "means

by which [an] element may be committed." 832 F.3d at 849. The fact that the

definition of "crime of violence" is contained in a separate section of the Minnesota

criminalstatutesthus providestextual support for the conclusion that the term "crime

of violence" is intended to be an element of the crime and that the list of violent

crimes in Minn. Stat. § 609.1095, subd. 1 contains alternative means by which that

element may be committed. See id. 

The record in McFee's conviction for terroristic threats also indicates that the

definition of "crime of violence" is a list of means, not elements. In Mathis, the

Supreme Court held that courts may look to the record of a prior conviction "if state

law fails to provide clear answers." 136 S. Ct. at 2256. Here, McFee's charging

document charged him with "wrongfully and unlawfully directly or indirectly

threaten[ing] to commit a crime of violence, with purpose to cause, or in reckless

disregard of the risk causing terror in another." Since the charging document used

the "single umbrella term" of "crime of violence" without specifying the particular

crime threatened, the record suggests that the prosecution was only required to prove

that McFee threatened a "crime of violence" but not the particular crime he

threatened. See id. at 2257.

Moreover, at least one other circuit court has concluded that a similar terroristic

threats statute is indivisible as to the specific crime threatened. United States v.

Brown, 765 F.3d 185, 191–93 (3d Cir. 2014). In Brown, the statute at issue defined

terroristic threats as "communicat[ing], either directly or indirectly, a threat to:

(1) commit any crime of violence with intent to terrorize another." Id. at 191 (quoting

18 Pa. Cons. Stat. § 2706(a)) (alteration in Brown). Another Pennsylvania statue

defined "a 'crime of violence' for purposes of sentencing." Id. at 192 (citing 42 Pa.

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Cons. Stat. § 9714(g)). The court thus concluded that the statute defining a "crime

of violence" was a list of means because it was contained in a separate statutory

section. See id. at 193. 

The government arguesthat theMinnesotaCourt of Appeals concluded in State

v. Jorgenson, 758 N.W.2d 316 (Minn. Ct. App. 2008), that the particular crime of

violence threatened is an element of Minnesota's terroristic threats statute. The

defendant in Jorgenson argued that the district court committed plain error by

instructing the jury that the first element of terroristic threats was that "the defendant

threatened, directly or indirectly, to commit a crime of violence. You are instructed

that assault is a crime of violence." Id. at 320 (emphasis removed). The defendant

argued that it was plain error to instruct the jury that assault was a crime of violence

because the definition of "crime of violence" includes first through third degree

assault, but excludes fourth degree, fifth degree, and domestic assault. Id. at 323.

The Jorgenson court concluded that the instruction was erroneous because

"instead of advising the jury that only assault in the first, second, and third degree are

crimes of violence, the [district] court merely stated, 'You are instructed that assault

is a crime of violence.'" Jorgenson, 758 N.W.2d at 323–24. The court then

determined that this error was plain because the instruction did not "specifically limit

the definition of 'violent crime' to the applicable offenses listed in Minn. Stat.

§ 609.1095, subd. 1(d)." Id. at 324. The court indicated that in the future, district

courts should instruct juries on "which predicate offenses constitute a violent crime

and which do not for purposes of the facts of a particular case." Id.

The government's argument thatJorgenson concluded that the particular crime

of violence threatened is an element of Minnesota'sterroristic threats statute primarily

relies on a statement in the opinion that "[t]o convict a defendant on a charge of

felony terroristic threats, a jury must find that the defendant threatened a specific

predicate crime of violence, as listed in Minn. Stat. § 609.1095." Jorgenson, 758

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N.W.2d at 325. This statement by the court was made in support of its conclusion

that the erroneous jury instruction "affect[ed] the outcome of the case." Id. The court

was therefore explaining that the instruction that "assault is a crime of violence"

affected the outcome of the case because the jury could have "interpreted the phrase

. . . to include all levels of assault," which includes three levels of assault not listed

as crimes of violence in Minn. Stat. § 609.1095. Id. Read in the context of the whole

opinion, however, this quotation merely stands for the proposition that the jury must

find that a defendant committed a crime of violence, as defined by Minn. Stat.

§ 609.1095, not that it must unanimously find which specific crime of violence a

defendant threatened to commit. 

We conclude that the phrase "to commit any crime of violence" is an element

of the Minnesota terroristic threats statute, Minn. Stat. § 609.713, subd. 1, and that

the separate definition of "crime of violence" in § 609.1095, subd. 1(d), lists means

by which that element is met. The element "to commit any crime of violence" is not

divisible. Minnesota's definition of "crime of violence" is broader than the ACCA

requirement that a prior conviction have "as an element the use, attempted use, or

threatened use of physical force against the person of another." See 18 U.S.C.

§ 924(e)(2)(B). McFee's prior conviction for terroristic threats thus was not an

ACCA predicate offense, and he does not qualify as an armed career criminal because

he had only two prior ACCA predicate convictions.

For these reasons we vacate McFee's sentence and remand for resentencing

consistent with this opinion. 

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