United States Court of Appeals

For the Eighth Circuit 

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No. 17-1023

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United States of America

 Plaintiff - Appellee

v.

William Ike Libby, Jr.

 Defendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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Submitted: October 19, 2017

 Filed: January 26, 2018

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Before WOLLMAN and SHEPHERD, Circuit Judges, and GOLDBERG,1Judge.

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GOLDBERG, Judge.

Defendant William Ike Libby, Jr. pleaded guilty to being a felon in possession 

of a firearm, in violation of 18 U.S.C. § 922(g)(1), 924(e). Previously, Libby had 

been convicted of three separate offenses: first degree aggravated robbery and 

second degree assault in October 1997, and second degree drug sale in January 2010. 

 

1The Honorable Richard W. Goldberg, Senior Judge, United States Court of 

International Trade, sitting by designation.
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The district court2considered each of Libby’s three previous convictions to be

“violent felonies” or “serious drug offenses” and therefore found Libby subject to 

the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). As a result, the 

district court sentenced Libby to the fifteen-year mandatory minimum sentence 

provided in 18 U.S.C § 924(e)(1). 

On appeal, Libby does not contest that two of his prior convictions constitute 

predicate offenses for the purposes of the ACCA. Rather, his appeal is limited to 

challenging the imposition of a fifteen year sentence based on the characterization 

of his October 1997 conviction for first degree aggravated robbery, Minn. Stat. § 

609.245, subd. 1, as a “violent felony.” Because we hold that the lesser included

offense of simple robbery in Minnesota is indeed a “violent felony,” we affirm the 

ruling of the district court and uphold its sentence under the ACCA.

DISCUSSION

A. Standard of Review

We review de novo whether a prior conviction is a predicate offense felony 

for the purposes of the ACCA, 18 U.S.C. § 924(e). United States v. Shockley, 816 

F.3d 1058, 1062 (8th Cir. 2016) (citation omitted).

B. The ACCA Framework

The ACCA dictates that if a defendant has “three previous convictions . . . for 

a violent felony or a serious drug offense,” that individual shall be sentenced to no 

less than fifteen years in prison. 18 U.S.C. § 924(e)(1). The statute defines “violent 

felony” as “any crime punishable by imprisonment for a term exceeding one 

year . . . that [] has as an element the use, attempted use, or threatened use of physical 

 

2The Honorable Donovan W. Frank, United States District Judge for the 

District of Minnesota.
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force against the person of another . . . .” 18 U.S.C. § 924(e)(2)(B)(i). “Physical 

force ‘means violent force—that is, force capable of causing physical pain or injury 

to another person.’” United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016) 

(quoting Johnson v. United States, 559 U.S. 133, 140, 130 S. Ct. 1265, 176 L. Ed. 

2d 1 (2010)). Thus, in order to uphold the district court’s classification of Libby’s 

conviction as a predicate felony, we must find that Minn. Stat. § 609.245, subd. 1 

contains as an element the use, attempted use, or threatened use of force capable of 

causing pain or injury to another.

When assessing whether a state statute qualifies as a “violent felony” for the 

purposes of the ACCA, we employ the categorical approach, looking only to the 

elements of the statute in question. See Jones v. United States, 870 F.3d 750, 752–

753 (8th Cir. 2017) (citations omitted). A defendant’s real world conduct is of no 

relevance to our review and is not to be considered. See id. (citing Mathis v. United 

States, __ U.S. __, 136 S. Ct. 2243, 2251, 195 L. Ed. 2d 604 (2016) (“How a given 

defendant actually perpetrated the crime—what we have referred to as the 

‘underlying brute facts or means’ of commission—makes no difference . . . .”) 

(citation omitted)).

Where a statute is indivisible—that is, it “sets out a single . . . set of elements 

to define a single crime”—we need not look beyond the statute of conviction. 

Mathis, 136 S. Ct. at 2248. If the elements of Libby’s statute of conviction, Minn. 

Stat. § 609.245, subd. 1, criminalize conduct that does not require the use of violent 

force, then it cannot be considered a predicate offense for the purposes of the ACCA. 

See Jones, 870 F.3d at 753.

However, statutes deemed divisible are treated differently. When a statute 

“list[s] elements in the alternative, and thereby define[s] multiple crimes,” it is 

divisible. Mathis, 136 S. Ct. at 2249. When we are faced with a divisible statute, 

we are permitted a constrained inspection of “a limited class of documents . . . to 

determine what crime, with what elements, a defendant was convicted of.” Id.
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(citing Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 161 L. Ed. 2d 205 

(2005)). This approach, called the modified categorical approach, is limited in its 

application and is not required here, as discussed below.

C. Minn. Stat. § 609.245, subd. 1

Libby challenges the district court’s conclusion that his conviction for first 

degree aggravated robbery was a “violent felony” under the ACCA.3 Minnesota’s 

first degree aggravated robbery statute criminalizes a defendant’s commission of

simple robbery while “armed with a dangerous weapon or any article used or 

fashioned in a manner to lead the victim to reasonably believe it to be a dangerous 

weapon, or inflicts bodily harm upon another . . . .” Minn. Stat. § 609.245, subd. 1. 

Simple robbery is defined as:

Whoever, having knowledge of not being entitled thereto, takes 

personal property from the person or in the presence of another and 

uses or threatens the imminent use of force against any person to 

overcome the person’s resistance or powers of resistance to, or to 

compel acquiescence in, the taking or carrying away of the 

property . . . .

Minn. Stat. § 609.24. A conviction under Minn. Stat. § 609.245, subd. 1 carries a 

punishment of not more than twenty years in prison.

In considering a conviction under Minn. Stat. § 609.245, subd. 1 for the 

purposes of the ACCA, we are required to examine whether the elements of simple 

 

3Libby’s conviction for first degree aggravated robbery occurred in October 

1997, under the 1994 version of the statute. Minn. Stat. § 609.245, subd. 1 (1994). 

Our analysis here focuses on the law as codified at the time of conviction, see

McNeill v. United States, 563 U.S. 816, 821–23, 131 S. Ct. 2218, 180 L. Ed. 2d 35 

(2011), which happens to be the same as that which exists today.
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robbery or the aggravating factors under first degree aggravated robbery necessarily 

require proof of violent force in order to convict. See Johnson, 559 U.S. at 140.

1. Divisibility 

Our assessment here requires that we first determine if Minn. Stat. § 609.245, 

subd. 1 lays out elements in the alternative or merely lists separate factual means by 

which the crime may be accomplished. See United States v. Boman, 873 F.3d 1035, 

1040 (8th Cir. 2017). Neither party disputes that the elements, as defined in both

Minn. Stat. § 609.245, subd. 1 and Minn. Stat. § 609.24, present an indivisible 

offense. Together, the statutes list separate factual means by which a defendant may 

accomplish four distinct elements: 1) a taking, 2) with knowledge, 3) by use of force 

or threat of imminent force, 4) while armed. Minn. Stat. § 609.24; Minn. Stat. § 

609.245, subd. 1. If our examination of these elements reveals that Minnesota law 

necessarily requires proof of violent force, we too must hold that a conviction under 

Minn. Stat. § 609.245, subd. 1 constitutes a “violent felony.”

2. Violent Force

In the absence of a demonstration by Libby that there is “a realistic 

probability, not a theoretical possibility, that the State would apply its statute to 

conduct that falls outside” the definition of a “violent felony,” see Moncrieffe v. 

Holder, 569 U.S. 184, 206, 133 S. Ct. 1678, 185 L. Ed. 2d 727 (2013) (citation 

omitted), we conduct a plain language reading of Minn. Stat. § 609.24 to determine 

if 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)(i). Because we hold that 

simple robbery, Minn. Stat. § 609.24, a constituent part of the crime defined under 

Minn. Stat. § 609.245, subd. 1, implicates violent force, Johnson, 559 U.S. at 140,

we affirm the district court’s ruling. 
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Minn. Stat. § 609.24 minimally requires that a defendant “threaten[] the 

imminent use of force” in order to either “compel acquiescence” or “to overcome 

the person’s resistance or powers of resistance . . . .” While a threat on its own may 

not present the requisite degree of force, see, e.g., United States v. McFee, 842 F.3d 

572, 575–76 (8th Cir. 2016), a statute that contains as an element a threat of violent

force will. See Johnson, 559 U.S. at 140. Minnesota’s express requirement that a 

defendant communicate a threat to “overcome . . . resistance” or to “compel 

acquiescence” necessarily implicates such violent force.

Confirming our reading, Minnesota’s pattern jury instructions require proof 

of “the intentional creation in [the victim’s] mind of an understanding that if the 

person resisted or refused to cooperate, force would immediately be used against the 

person.” 10 Minn. Prac., Jury Instr. Guides—Criminal CRIMJIG 14.02 (6th ed. 

2017). Important here is not the “mental state of the victim,” Schaffer, 818 F.3d at 

798, but the defendant’s “intentional creation” of a threat intended to overpower or 

dissuade a victim’s resistance. Such a threat “communicate[s] intent to inflict 

harm,” id. (quoting Threat, Black’s Law Dictionary (10th ed. 2014)), for fear that 

were the victim to resist, violent force may befall them. As such, simple robbery in 

Minnesota—and as a result, first degree aggravated robbery—qualifies as a 

predicate offense under the ACCA.

In an attempt to show that simple robbery can also encompass less than violent 

force, Libby points to only one case that squarely considers force under Minn. Stat. 

§ 609.24: State v. Nelson, 297 N.W.2d 285 (Minn. 1980).

4 Yet, that case does not 

stand for the proposition Libby asserts. With a short recitation of the facts, the 

 

4Two other Minnesota Supreme Court cases referenced by Libby, State v. 

Slaughter, 691 N.W.2d 70 (Minn. 2005) and Duluth St. Ry. Co. v. Fidelity & Deposit 

Co. of Md., 161 N.W. 595 (Minn. 1917), do not inform our analysis. One, Duluth 

St. Ry. Co., 161 N.W. at 595–96, is entirely inapposite as it interpreted the language 

of an insurance policy, not that of the law in question here. The other, Slaughter, 

691 N.W.2d at 76–78, considered a conviction for theft from the person under a 

different statute than that which defines simple robbery.
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Nelson court upheld a simple robbery conviction where the defendants, two “young 

adults,” “forcefully” “grabbed” and “jostled” a thirteen-year-old victim before he 

was able to escape. Id. at 286. Counter to Libby’s proposed reading, simply because 

the boy avoided actual violent force by fleeing, that does not mean that violent force 

was not threatened. Rather, it is clear that the Nelson defendants did at least 

threaten—if not intend to employ—violent force. Thus, we do not take Nelson to 

hold that non-violent force can support a conviction under Minn. Stat. § 609.24.

Libby also argues that we are required to follow our decision in United States 

v. Eason, 829 F.3d 633, 640–42 (8th Cir. 2016), which he claims would compel a 

holding that Minn. Stat. § 609.245, subd. 1 is categorically not a “violent felony.” 

We disagree.5 While the state statute analyzed there contemplated the threat of any

quantum of force, Ark. Code Ann. § 5-12-102, Libby’s statute of conviction requires

a threat of considerably more force. Specifically, whereas the Arkansas statute at 

issue in Eason criminalized a “[t]hreat of any bodily impact, restraint, or 

confinement,” Ark. Code Ann. § 5-12-101 (emphasis added), Minn. Stat. § 609.24

requires proof of a threat of “the imminent use of force . . . to overcome the person’s 

resistance . . . .” Thus, the statutes are distinguishable and we are not bound by 

Eason’s holding.

 

5Nor are we compelled to follow, as Libby urges, United States v. Bell, 840 

F.3d 963 (8th Cir. 2016), a non-ACCA case. That case considered whether 

Missouri’s second-degree robbery statute constituted a “crime of violence” under a 

similarly worded federal sentencing statute, U.S.S.G. § 4B1.2(a). Id. at 964–65. 

While both Bell and the case at hand call for a similar application of the categorical 

approach, see id. at 965 n.3 (explaining that both seek to resolve the inquiry as to the 

use of violent force), for Bell to apply here, Libby would have to show a realistic 

probability that Minnesota prosecutes conduct involving less than violent force 

under Minn. Stat. § 609.24. Id. at 966 (“Although the ‘theoretical possibility’ that a 

state may apply its statute to conduct falling short of violent force is not enough to 

disqualify a conviction, a ‘realistic probability’ will suffice.” (citation omitted)). As 

discussed above, Libby has failed to do just that.
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By its terms, Minn. Stat. § 609.245, subd. 1 minimally requires that a 

defendant communicate a threat of violent force. As such, the elements of Minn. 

Stat. § 609.245, subd. 1 categorically present a “violent felony” under the ACCA.

CONCLUSION

The district court did not err in holding that Libby’s conviction under Minn. 

Stat. § 609.245, subd. 1 qualifies as a “violent felony” for the purposes of the ACCA 

and we, therefore, uphold its sentence.