United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-1886

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United States of America, *

*

Plaintiff - Appellant, * Appeal from the United States

* District Court for the Eastern

v. * District of Missouri.

*

James E. Boyce, *

*

Defendant - Appellee. *

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Submitted: January 13, 2011

Filed: February 28, 2011

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Before MURPHY, HANSEN, and MELLOY, Circuit Judges.

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MURPHY, Circuit Judge.

James Boyce pled guilty to being a felon in possession of a firearm in violation

of 18 U.S.C. § 922(g). The district court declined to enhance Boyce's sentence under

the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), after concluding that

his prior conviction for possession of a weapon in a correctional facility did not

qualify as a violent felony. Boyce was sentenced to 37 months imprisonment. The

government appeals the court's decision not to sentence Boyce under the ACCA. We

reverse and remand for resentencing. 
In January 2009, Boyce pled guilty to possessing a firearmas a convicted felon,

in violation of 18 U.S.C. § 922(g). The presentence investigation report (PSR)

prepared prior to Boyce's sentencing indicated that he had three prior felony

convictions. The ACCA imposes a mandatory minimum fifteen year sentence if a

defendant has "three previous convictions by any court . . . for a violent felony." 18

U.S.C. § 924(e)(1). There is no dispute that two of Boyce's prior convictions, a 1981

conviction for manslaughter and a 1990 conviction for burglary, kidnaping, and rape,

qualify as violent felonies under the ACCA. 

The issue here is whether Boyce's 1986 Missouri conviction for possession of

a weapon in a correctional facility is a violent felony. While incarcerated in the

Missouri State Penitentiary,Boyce was convicted of possessing a homemade weapon

which resembled an ice pick and was over eight inches long. The weapon was

discovered by prison officers wrapped in a bandage on Boyce's arm. The PSR did not

characterize this conviction as a violent felony or recommend that Boyce be

sentenced as an armed career criminal. The government objected to the PSR, arguing

that a conviction for possession of a weapon in a correctional facility is a violent

felony and that Boyce therefore had three violent felony convictions and should

receive the ACCA mandatory minimum sentence. 

The district court held an initial sentencing hearing in November 2009, during

which it heard testimony from the government's expert witness, Donald P. Roper,

Superintendent of the Potosi Correctional Center of the Missouri Department of

Corrections. Roper testified about his experience in investigating and disciplining

inmate weapons violations and the danger they posed within the prison system. At

the conclusion ofthe hearing, the court reserved ruling on whether Boyce's conviction

qualified as a violent felony under the ACCA.

At a second sentencing hearing in March 2010, the district court concluded that

under Johnson v. United States, 130 S. Ct. 1265 (2010), possession of a weapon in

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a correctional facility is not a violent felony for purposes of the ACCA. The court

overruled the government's objection and sentenced Boyce to 37 months

imprisonment. The only issue on appeal is whether Boyce's conviction for possession

of a weapon in a correctional facility is a violent felony under the ACCA. We review

de novo whether a defendant's prior conviction qualifies as a violent felony. United

States v. Boaz, 558 F.3d 800, 806 (8th Cir. 2009). 

The ACCA mandates a fifteen year statutory minimum sentence for any

defendant who is convicted of being a felon in possession of a firearm and also has

three previous violent felony convictions. 18 U.S.C. § 924(e)(1). The statute defines

a violent felony as a crime punishable by a term of imprisonment exceeding one year

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, extortion, involves use

of explosives or otherwise involves conduct that presents a serious potential risk of

physical injury to another." 18 U.S.C. § 924(e)(2)(B). 

Boyce was convicted in Missouri state court of possessing a weapon in a

correctional facility, in violation of Missouri Revised Statute 217.360.1(4), which

makes it a crime for an inmate "knowingly . . .[to] have in his possession . . . in or

about the premises of any division correctional institution . . . [a]ny gun, knife,

weapon, or other article or item of personal property that may be used in such a

manner as to endanger the life or limb of any inmate or employee thereof." Mo. Rev.

Stat. 217.360.1(4). 

Relying on the Supreme Court's decision in Johnson, the district court

concluded that Boyce's Missouri conviction did not qualify as a violent felony under

the ACCA because it lacked a requirement of active, physical force. In Johnson, the

Supreme Court decided that in order to qualify as a violent felony under subsection

(i) of § 924(e)(2)(B), a crime must have as an element the use of violent, physical

force "capable of causing physical pain or injury to another person." 130 S. Ct. at

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1271. The government has not argued that subsection (i) of § 924(e)(2)(B) applies

to Boyce's Missouri conviction, however. The argument it has relied on before the

district court and on appeal is that the conviction qualifies as a violent felony under

the residual clause of § 924(e)(2)(B)(ii), which applies to crimes involving "conduct

that presents a serious potential risk of physical injury to another." In Johnson, the

Supreme Court explicitly stated that it was not interpreting the residual clause of §

924(e)(2)(B)(ii), since that provision was not raised in the case. Id. at 1272. We

therefore conclude that the court erred by overlooking the distinction between

subsections (i) and (ii) of § 924(e)(2)(B). 

The appropriate two part test for determining whether a defendant's prior

conviction qualifies as a violent felony under the ACCA's residual clause in

subsection (ii) was set out in Begay v. United States, 553 U.S. 137 (2008), and

Chambers v. United States, 555 U.S. 122 (2009). To qualify as a violent felony under

the residual clause, the defendant's prior conviction must (1) "present[] a serious

potential risk of physical injury to another, and (2) be "roughly similar, in kind as

well as degree of risk posed," to the offenses listed in § 924(e)(2)(B)(ii). Begay, 553

U.S. at 143. 

As to the first part of the test, we conclude that possession of a weapon in a

correctionalfacility does present a serious potential risk of physical injury to another. 

As interpreted by the Missouri Court of Appeals, Mo. Rev. Stat. 217.360.1(4), the

statute under whichBoyce was convicted, applies only to the possession ofinherently

dangerous weapons such as guns or knives. State v. William, 100 S.W.3d 828,

833–34 (Mo. Ct. App. 2003). There is no lawful purpose for an inmate to possess an

inherently dangerous weapon in a correctional facility, see United States v. Zuniga,

553 F.3d 1330, 1334 (10th Cir. 2009), and we have previously recognized that

"[p]ossession of a dangerous weapon that has no lawful purpose creates a serious

potential risk of physical injury to others." United States v. Vincent, 575 F.3d 820,

825 (8th Cir. 2009) (involving possession of a sawed off shotgun). 

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The next issue is whether possession of a weapon in a correctional facility is

roughly similar, in kind as well as degree of risk posed, to the offenses listed in §

924(e). These offenses include burglary, arson, extortion, and the use of explosives. 

A defendant's prior conviction is similar in kind to the listed crimes if it typically

involves "purposeful, violent, and aggressive conduct." Begay, 553 U.S. at 144–46. 

Our inquiry is thus whether Boyce's conviction for possession of an inherently

dangerous weapon in a correctional facility is a crime that typically involves

purposeful, violent, and aggressive conduct.

The circuit courts which have considered whether possession of a weapon in

prison qualifies as a violent felony after Begay have reached different conclusions. 

The Third Circuit, in United States v. Polk, 577 F.3d 515 (3d Cir. 2009), decided that

although possession of a weapon in prison does pose a serious potential risk of

physical injury, it is a passive crime centering around mere possession and does not

involve purposeful, violent, and aggressive conduct. Id. at 519. The Fifth and the

Tenth Circuits have reached the opposite conclusion, reasoning that a prisoner's

possession of a dangerous weapon is an active, purposeful act associated with a

likelihood of future violent confrontation. United States v. Marquez, 626 F.3d 214,

221 (5th Cir. 2010); Zuniga, 553 F.3d at 1335–36. 

Although Boyce urges usto follow the reasoning of the Third Circuit, we have

explicitly approved the approach taken by the Tenth Circuit in deciding whether

possession of a weapon in prison is a violent felony under the ACCA's residual

clause. See Vincent, 575 F.3d at 827. We continue to believe that the better reasoned

approach to the issue is the one taken by the Fifth and Tenth Circuits. Possession of

a dangerous weapon in a correctional facility involves purposeful conduct. Unlike

the strict liability crime of driving under the influence at issue in Begay, a conviction

under the Missouri statute requires proof of mens rea, Vincent, 575 F.3d at 825,

specifically knowing possession. State v. Williams, 740 S.W.2d 345, 348 (Mo. Ct.

App. 1987). 

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Boyce's offense was also both violent and aggressive because it "create[d] the

possibility–even the likelihood–of a future violent confrontation." Vincent, 575 F.3d

at 827 (quoting Zuniga, 553 F.3d at 1335). As we recognized in Vincent in respect

to the crime of possession of a sawed off shotgun, possession of a dangerous weapon

in prison issimilar to the listed crimesin that it "is illegal precisely because it enables

violence or the threat of violence." Id. at 825. When a prisoner carries a dangerous

weapon, that behavior indicates that he is "prepared to use violence if necessary" and

is ready "to enter into conflict, which in turn creates a danger for those surrounding

the armed prisoner." Zuniga, 553 F.3d 1335–36.

Possession of a dangerous weapon in a correctional facility is purposeful,

violent, and aggressive, and is therefore similar, in kind as well as degree of risk

posed, to the offenses listed in § 924(e). Boyce's Missouri conviction is a violent

felony under the residual clause of the ACCA. As his third violent felony, he is

subject to sentencing as an armed career criminal. Accordingly, we reverse and

remand for resentencing under the ACCA. 

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