In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-3696

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRENNEN M. SMITH,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Central District of Illinois.

No. 4:17-cr-40039-001 — Sara Darrow, Chief Judge.

____________________

ARGUED NOVEMBER 8, 2019 — DECIDED NOVEMBER 25, 2020

____________________

Before SYKES, Chief Judge, and RIPPLE and ROVNER, Circuit 

Judges.

SYKES, Chief Judge. Brennen Smith stole a pickup truck in 

Iowa, drove it across the Mississippi River into Illinois, then 

crashed into a median and fled the scene, leaving a stolen 

handgun inside. Because he has a felony record and the 

stolen truck crossed state lines, Smith faced federal charges 

of unlawfully possessing a firearm as a felon and possession 

of stolen goods. He pleaded guilty to both counts.
2 No. 18-3696

The presentence report recommended an enhanced offense level under § 2K2.1(a)(2) of the Sentencing Guidelines

based on two of Smith’s prior convictions: a 2009 Iowa 

conviction for delivery of cocaine and a 2008 Iowa conviction 

for aggravated assault. Smith conceded that the former 

qualified as a “controlled substance offense” under 

§ 2K2.1(a)(2). He objected, however, to counting the 

aggravated-assault conviction as a “crime of violence” under 

the Guidelines. The judge overruled the objection and

imposed a sentence of 115 months, the top of the advisory

range.

Smith argues that the 2008 aggravated-assault conviction 

is not a crime of violence under a proper application of the 

categorical approach to classifying convictions for sentencing purposes. As relevant here, a “crime of violence” is an 

offense 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). Smith’s 2008 conviction rests on 

section 708.2(3) of the Iowa Code. Under that statute, “[a]

person who commits an assault, as defined in section 708.1,

and uses or displays a dangerous weapon in connection with

the assault” is guilty of the crime of aggravated assault.

Smith observes, correctly enough, that some variants of

the simple assault offense as defined in section 708.1 do not 

require the use or threat of physical force. We recently held, 

however, that section 708.1 is divisible—that is, the separate 

subsections in the statute define separate crimes, each with 

different elements. United States v. Carter, 961 F.3d 953, 957

(7th Cir. 2020). That requires us to look to the charging 

document or similar court records to determine which crime, 

with what elements, Smith was convicted of. Smith’s court 
No. 18-3696 3

records show that he was convicted under a subsection of 

the assault statute that requires a threat of physical force—

indeed, the same part of the Iowa statute that we addressed 

in Carter. Id. at 957–58. It follows from Carter that the judge 

properly relied on Smith’s 2008 aggravated-assault conviction to elevate his base offense level under § 2K2.1(a)(2). We 

affirm.

I. Background

In November 2016 Smith briefly worked as a salesman at 

Lindquist Ford in Bettendorf, Iowa. When he started, he was 

given a master key that opened a lockbox that held the keys 

to every vehicle on the lot. Smith quit after only a week on 

the job and did not turn in his master key. Instead, about 

two months later, he returned to the dealership and stole a

2016 Ford F250 truck. He placed stolen license plates on the 

truck and drove it across state lines into Illinois. A few days 

later he crashed the truck into a median in Rock Island 

County, Illinois. He fled the scene, leaving a stolen pistol in 

the truck. A week later Smith was arrested. He admitted that 

he stole the truck, wrecked it, and left the firearm inside.

A grand jury in the Central District of Illinois returned a 

two-count indictment charging Smith with unlawfully 

possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), and 

possessing stolen goods that traveled across state lines, id.

§ 2315. He pleaded guilty to both counts without a plea 

agreement.

For the firearm count, the presentence report (“PSR”) 

recommended a base offense level of 24 under § 2K2.1(a)(2), 

which applies when the defendant has “at least two felony 

convictions of either a crime of violence or a controlled 
4 No. 18-3696

substance offense.” The PSR listed three possible qualifying 

predicates: a 2009 Iowa conviction for delivery of cocaine, a 

2008 Iowa conviction for aggravated assault, and a 2013 

Iowa conviction for domestic-abuse assault. The PSR also 

recommended a two-level increase in the offense level 

because the firearm was stolen, raising the offense level to 

26. See U.S.S.G. § 2K2.1(b)(4).

At sentencing the parties agreed that the Iowa cocaine

offense is a qualifying controlled-substances crime for 

purposes of § 2K2.1(a)(2). The debate centered on the two 

assault convictions. Smith argued that neither the aggravated assault nor the domestic-abuse assault could be counted 

as predicate crimes of violence; the government argued that 

both crimes qualify. The judge concluded that the 

aggravated-assault offense is a crime of violence, which

made it unnecessary for her to address the domestic-abuse 

assault; the cocaine offense and the aggravated assault 

provided the two convictions needed to support the recommended base offense level of 24. The judge added two levels 

because the firearm was stolen, then awarded a three-level 

reduction for acceptance of responsibility, resulting in a final

offense level of 23. With Smith’s criminal-history category of 

VI, the advisory Guidelines sentencing range was 92 to 

115 months. The judge imposed concurrent sentences of 

115 months on each count.

II. Discussion

Smith reprises his argument that neither of his Iowa assault convictions is a crime of violence for purposes of the 

elevated base offense level under § 2K2.1(a)(2). Although the 

Guidelines are purely advisory, a correctly calculated Sentencing Guidelines range is the required first step in the 
No. 18-3696 5

sentencing process, so a mistake in the calculation is a 

procedural error. United States v. Hurlburt, 835 F.3d 715, 723 

(7th Cir. 2016). Classifying prior convictions for sentencing 

purposes is a legal determination; our review is therefore de 

novo. United States v. Edwards, 836 F.3d 831, 834 (7th Cir. 

2016).

As relevant here, a crime of violence is “any offense under federal or state law, punishable by imprisonment for a 

term exceeding one year, that ... has as an element the use, 

attempted use, or threatened use of physical force against 

the person of another.” § 4B1.2(a)(1). Whether a conviction 

qualifies under this definition depends entirely on the 

statutory elements of the crime. Edwards, 836 F.3d at 834–35. 

The inquiry is therefore legal and categorical: If the statute 

underlying the conviction defines the offense more broadly 

than the Guidelines definition, then the prior conviction 

cannot be counted; if the statutory elements of the offense

match or are narrower than the Guidelines definition, then 

the conviction qualifies as a crime of violence. Id.

Many criminal statutes contain multiple parts, which 

adds a layer of complexity to the categorical analysis. A 

multipart statute may create more than one crime, each with 

its own set of elements, or it may list several different factual 

means of committing a single element of the offense. Mathis 

v. United States, 136 S. Ct. 2243, 2249 (2016). If a multipart 

statute defines multiple crimes—i.e., if the subparts are legal 

elements rather than alternative factual means of committing 

an element of the crime—then the statute is considered 

“divisible” and a modified form of the categorical approach

applies. The modified approach requires an examination of 

the charging document or other court records “to determine 
6 No. 18-3696

what crime, with what elements, [the] defendant was convicted of.” Id. If, on the other hand, the various alternatives 

in a multipart statute are simply alternative factual means of 

committing a single element—so that a jury need not unanimously agree on how the defendant committed that element in order to convict—then the statute is not divisible. Id.

An indivisible statute that sweeps more broadly than the 

Guidelines definition is not a categorical match, and a 

conviction under it does not qualify as a crime of violence.

Edwards, 836 F.3d at 834–35.

Our recent opinion in Carter applied these principles to 

the Iowa assault statutes at issue here. Like Smith, the defendant in Carter pleaded guilty to unlawfully possessing a 

firearm as a felon in violation of § 922(g)(1), and his base

offense level under § 2K2.1(a)(2) hinged on whether his 

conviction for aggravated assault under section 708.2(3) of 

the Iowa Code qualified as a crime of violence. Carter,

961 F.3d at 956–59. Section 708.2(3) provides: “A person who 

commits an assault, as defined in section 708.1, and uses or 

displays a dangerous weapon in connection with the assault, 

is guilty of an aggravated misdemeanor.” Under Iowa law

an aggravated misdemeanor is punishable by up to two 

years in prison, see IOWA CODE § 903.1(2), so the pivotal 

question in Carter was whether the Iowa aggravated-assault 

offense as defined in section 708.2(3) “has as an element the 

use, attempted use, or threatened use of physical force,” 

§ 4B1.2(a)(1); Carter, 961 F.3d at 957.

The section 708.2(3) offense has two elements: (1) the defendant used or displayed a dangerous weapon; (2) in 

connection with an assault as defined in section 708.1. As 
No. 18-3696 7

relevant here, section 708.1, Iowa’s version of the crime of 

simple assault, provides in part:

2. A person commits an assault when, without 

justification, the person does any of the following:

a. Any act which is intended to cause pain or 

injury to, or which is intended to result in 

physical contact which will be insulting or offensive to another, coupled with the apparent 

ability to execute the act.

b. Any act which is intended to place another 

in fear of immediate physical contact which 

will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.

c. Intentionally points any firearm toward another, or displays in a threatening manner any 

dangerous weapon toward another.

IOWA CODE § 708.1.1

Because section 708.1(2) contains multiple subparts, the 

first step in our analysis in Carter concerned the question of 

divisibility. Carter, 961 F.3d at 956–57. We looked to the Iowa 

Supreme Court for guidance, noting that the state high court 

reads the separate subsections of section 708.1(2) to create 

distinct crimes. Id. at 957 (citing State v. Fountain, 786 N.W.2d 

1 The version of section 708.1 in effect in 2008 used a different numbering 

system for these three separate subdivisions. The text was the same, 

however. For ease of reference, we use the current numbering, as we did 

in Carter. United States v. Carter, 961 F.3d 953, 957 (7th Cir. 2020).
8 No. 18-3696

260, 265 (Iowa 2010)). Accordingly, we concluded that the 

statute is divisible and applied the modified categorical 

approach. Id.

The next step in the analysis required an examination of 

the court records from the defendant’s underlying case to 

determine which of the three basic assault crimes in section 708.1(2) formed the basis for his conviction for aggravated assault. Some of the court records were 

unilluminating, but the defendant had admitted in his plea 

agreement that he displayed a knife during an altercation 

with the victim. Id. at 958. The version of the assault crime 

defined in subsection (2)(c) of the statute covers

“[i]ntentionally point[ing] any firearm toward another, or 

display[ing] in a threatening manner any dangerous weapon 

toward another.” We therefore concluded that 

“[s]ection 708.1(2)(c) ... provided the basis for [the defendant’s] aggravated assault conviction.” Id.

The defendant insisted that merely displaying a dangerous weapon does not imply a threat of physical force, but we 

rejected that argument. Carter, 961 F.3d at 958. We noted that 

the Supreme Court had recently clarified that “the threat of 

physical force ‘does not require any particular degree of 

likelihood or probability that the force used will cause 

physical pain or injury; only potentiality.’” Id. (quoting

Stokeling v. United States, 139 S. Ct. 544, 554 (2019)). Putting 

these pieces together, we concluded that an “[a]ggravated 

assault under § 708.2(3) of the Iowa Code, with a predicate 

assault under § 708.1(2)(c), necessarily involves at least the 

threat to use physical force.” Id. at 959. So the defendant’s

conviction was properly counted as a crime of violence. Id.
No. 18-3696 9

That holding controls here. Like in Carter, some of the 

court records in Smith’s 2008 aggravated-assault case are 

unilluminating. For instance, the judgment says only that he 

was sentenced for the crime of “assault with a dangerous 

weapon” in violation of sections 708.1 and 708.2(3). But the 

charging document holds the key, stating that Smith “did: 

assault [the victim] by using or displaying a dangerous 

weapon, to-wit: [a] metal bat.” Substitute “knife” for “metal 

bat” and this case is Carter. Applying Carter’s reasoning here, 

we conclude that subsection 708.1(2)(c) provides the basis 

for Smith’s aggravated-assault conviction under section 708.2(3), and the conviction was properly counted as a 

crime of violence.

We have just a few additional observations in closing. 

Subsection (2)(c) of section 708.1 is not only divisible from 

subsections (2)(a) and (2)(b), but it’s also internally divisible. 

Recall that it contains two parts, one criminalizing the act of 

intentionally pointing a firearm and a second criminalizing

the act of displaying a dangerous weapon in a threatening 

manner. The second internal subpart has different and 

additional elements than the first. To convict under the first, 

a jury would need to unanimously agree that the defendant 

(1) intentionally pointed a firearm (2) at another person. In 

contrast, to convict under the second internal subpart, a jury 

would need to unanimously agree that the defendant 

(1) displayed a dangerous weapon (2) in a threatening 

manner (3) toward another person. The term “dangerous 

weapon” is defined broadly to include “any instrument or 

device designed primarily for use in inflicting death or 

injury” and “any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that 

the defendant intends to inflict death or serious bodily 
10 No. 18-3696

injury.” IOWA CODE § 702.7. The second subpart plainly 

contains different elements than the first and thus defines a 

distinct crime.

Carter did not expressly hold that subsection (2)(c) is internally divisible, but our analysis implicitly treated it as 

such. As we’ve noted, the defendant there admitted in his 

plea agreement that he displayed a knife during an altercation with the victim, so his aggravated-assault conviction 

necessarily involved the second internal subpart of section 708.1(2)(c), not the first. The distinction does not matter 

here, but it may be important in a future case. Under current 

circuit precedent, pointing a firearm, without more, is not a 

crime of violence. Portee v. United States, 941 F.3d 263, 268 

(7th Cir. 2019).

Portee is hard to reconcile with the Supreme Court’s reasoning in Stokeling, which (to repeat) held that a threat of 

physical force in this context does not require any particular 

degree of likelihood of injury or pain, “only potentiality.”

Stokeling, 139 S. Ct. at 554. Portee does not mention Stokeling, 

and Carter does not mention Portee. But resolving the apparent tension between Portee and Stokeling is a question for 

another day. Smith’s 2008 Iowa aggravated-assault conviction is materially identical to the conviction at issue in Carter.

It follows that the conviction was properly classified as a 

crime of violence for purposes of the enhanced base offense 

level in § 2K2.1(a)(2).2 There was no procedural error.

AFFIRMED

2 Because we conclude that the 2008 aggravated-assault conviction is a 

qualifying crime of violence, we have no need to address Smith’s 2013 

conviction for domestic-abuse assault.