United States Court of Appeals

For the Eighth Circuit

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No. 14-2997

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Andrew L. Haddock

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - Cape Girardeau

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 Submitted: March 9, 2015

 Filed: July 20, 2015

[Unpublished]

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Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Andrew Haddock pled guilty to three firearms offenses. The district court

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sentenced Haddock to 106 months imprisonment. On appeal, Haddock argues the

The Honorable Carol E. Jackson, United States District Judge for the Eastern 1

District of Missouri. 
district court erred in applying a greater base offense level based on a determination

that Haddock’s prior Missouri conviction for second-degree assault qualified as a

“crime of violence” under the Sentencing Guidelines. We affirm.

Haddock pled guilty to two counts of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1), and one count of possession of a firearm in

relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The

presentence investigation report (PSR) applied section 2K2.1(a) of the Guidelines to

recommend a base offense level of 20 because Haddock pled guilty to unlawful

possession of a firearm subsequent to sustaining one felony conviction of a crime of

violence. See United States Sentencing Commission, Guidelines Manual,

§ 2K2.1(a)(4)(A). The PSR listed the crime of violence as a 2003 conviction for

second-degree assault, in violation of Missouri Revised Statutes § 565.060 (1993).

Haddock objected to the application of section 2K2.1(a), arguing section

565.060 is a divisible statute and the evidence before the district court was

insufficient to show Haddock was convicted under a subdivision of that statute that

constitutes a crime of violence. Haddock attached several documents relating to his

second-degree assault conviction to the memorandum in support of his objection,

including a copy of section 565.060, the amended information, the petition to enter

a guilty plea, and the sentence and judgment. See Shepard v. United States, 544 U.S.

13, 26 (2005) (plurality opinion) (detailing what documents may be considered in

applying the modified categorical approach to determine the subsection of conviction

under a divisible statute); United States v. Vinton, 631 F.3d 476, 484-85 (8th Cir.

2011) (applying the modified categorical approach to Missouri Revised Statutes

§ 565.060). The district court reviewed these documents and concluded that section

2K2.1(a) applied because the documents showed Haddock was convicted under

section 565.060.1(2) and that offense clearly fell within the definition of a “crime of

violence,” as defined in section 4B1.2(a)(1) of the Guidelines. See USSG § 2K2.1,

comment. (n.1) (noting a “crime of violence” for the purposes of section 2K2.1 has

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the meaning given that term in section 4B1.2(a)). The court sentenced Haddock to

a bottom-of-the-Guidelines-range term of 106 months imprisonment. 

On appeal, Haddock renews his argument that there was insufficient evidence

to show he pled guilty to a subsection of 565.060 that qualifies as a crime of violence. 

He argues the Shepard-approved documents did not indicate a specific subsection or

a mental element, making it impossible to tell which subsection applied to his

conviction. “We review a district court’s interpretation and application of the

sentencing guidelines de novo and its findings of fact for clear error.” United States

v. Gallimore, 491 F.3d 871, 874-75 (8th Cir. 2007). 

The version of section 565.060 under which Haddock was convicted reads:

A person commits the crime of assault in the second degree if he:

(1) Attempts to kill or knowingly causes or attempts to

cause serious physical injury to another person under the

influence of sudden passion arising out of adequate cause;

or

(2) Attempts to cause or knowingly causes physical injury

to another person by means of a deadly weapon or

dangerous instrument; or

(3) Recklessly causes serious physical injury to another

person; or

(4) While in an intoxicated condition or under the influence

of controlled substances or drugs, operates a motor vehicle

in this state and, when so operating, acts with criminal

negligence to cause physical injury to any other person

than himself; or 

(5) Recklessly causes physical injury to another person by

means of discharge of a firearm.

Mo. Rev. Stat. § 565.060.1 (1993). The charging document stated Haddock

“attempted to cause physical injury to Marc Tragesser by attempting to strike him

with a motor vehicle.” This language closely tracks subsection two of 565.060.1,

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varying only in specificity by identifying the “person” and “means” in question. The

other state court documents before the district court also supported a finding that only

subsection two could apply. Haddock’s petition to enter a plea of guilty in the state

court described the relevant conduct as follows: “I assaulted Officer Tragesser by

driving my car toward him.” During the state court plea colloquy, Haddock admitted

to the prosecutor’s basic description of the relevant conduct, which was that it

involved a vehicular pursuit during which Haddock stopped his car, OfficerTragesser

got out of his patrol vehicle, and Haddock resumed the chase, driving “in the

direction of” Officer Tragesser, who “had to jump out of the way to avoid being

struck by the vehicle.” None of the documents indicated Haddock actually injured

Officer Tragesser, nor did they indicate Haddock acted “under the influence of

sudden passion arising out of adequate cause.” And under Missouri law, “[a] motor

vehicle qualifies as a dangerous instrument when it is used under circumstances in

which the vehicle is readily capable of causing death or serious physical injury,”

which includes attempting to strike another person with the vehicle. See State v. Ise,

-- S.W. 3d --, 2015 WL 545163 at *5 (Mo. Ct. App. Feb. 10, 2015) (a motor vehicle

can be a dangerous instrument for the purposes of section 565.060); State v. Smith,

242 S.W.3d 735, 739 (Mo. Ct. App. 2007) (finding sufficient evidence to convict

defendant under section 565.060.1(2) for attempting to run over another person with

his vehicle). Thus the charging document set forth all of the elements of subsection

two and the other portions of the state court record before the district court confirmed

that the plea “‘necessarily’” rested on subsection two. See Vinton, 631 F.3d at 485

(quoting Shepard, 544 U.S. at 21). Accordingly, the district court did not err in

determining Haddock pled guilty to second-degree assault under subsection two of

565.060, which is a crime of violence. See USSG § 4B1.2(a)(1) (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”); Vinton, 631 F.3d at 485

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(second-degree assault under Missouri Revised Statutes § 565.060.1(2) falls under

USSG § 4B1.2, the use-of-force prong, and is therefore a “crime of violence”). 

For these reasons, we affirm. 

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