United States Court of Appeals

For the Eighth Circuit

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No. 16-1283

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Mario Thomas, also known as "Hoodie"

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Arkansas - El Dorado

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 Submitted: September 19, 2016

Filed: September 26, 2016

[Published]

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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.

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PER CURIAM.

Mario Thomas appeals the district court's enhancement of his sentence under

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the United States Sentencing Guidelines (U.S.S.G. or Guidelines), and we affirm. 

The Honorable Susan O. Hickey, United States DistrictJudge for the Western 1

District of Arkansas.
Thomas was convicted of distributing cocaine base. At sentencing the district court

applied the Guidelines' career-offender enhancement on the basis of two prior

convictions, one of which was for first-degree battery under § 5-13-201 of the

Arkansas Code. That statute enumerates several classes of conduct that qualify as

first-degree battery, including: "With the purpose of causing serious physical injury

to another person, the person causes serious physical injury to any person by means

of a deadly weapon." Ark. Code Ann. § 5-13-201(a)(1). The Arkansas Code defines

"serious physical injury" as "physical injury that creates a substantial risk of death or

that causes protracted disfigurement, protracted impairment of health, or loss or

protracted impairment of the function of any bodily member or organ," id. § 5-1-

102(21), and "deadly weapon" as "(A) A firearm or anything manifestly designed,

made, or adapted for the purpose of inflicting death or serious physical injury; or (B)

Anything that in the manner of its use or intended use is capable of causing death or

serious physical injury," id. § 5-1-102(4).

In United States v. Boose, 739 F.3d 1185, 1188 (8th Cir. 2014), we held that

§ 5-13-201 prohibits a wider range of conduct than that which would be considered

a crime of violence under the "force clause" of U.S.S.G. § 4B1.2(a)(1). The district

court therefore employed the "modified categorical approach" when sentencing

Thomas to attempt to determine whether he had been convicted under a divisible

portion of § 5-13-201 prohibiting a class of conduct that qualified as a crime of

violence. It looked to the information, which identified § 5-13-201 as the statute

under which Thomas was charged with first-degree battery. Although that document

did not in express terms identify any particular subsection of § 5-13-201, it parroted

the language of subsection (a)(1), alleging that Thomas, "with the purpose to cause

serious physical injury did cause serious injury to Jarnard McCree by means of a

deadly weapon." The sentencing order indicated that Thomas pled guilty to that

charge and there was no evidence the information had been amended. The district

court concluded that Thomas pled guilty to a violation ofsubsection (a)(1). It further

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concluded that subsection (a)(1) requires as an element the use of violent force and

is therefore a crime of violence.

The district court applied the career-offender enhancement on the basis of

Thomas's prior conviction under § 5-13-201(a)(1) and another prior conviction for

delivery of a controlled substance. This resulted, after a downward adjustment for

acceptance of responsibility, in an offense level of 31 and a recommended Guidelines

range of 188 to 235 months' imprisonment. The district court denied Thomas's

objection to the career-offender enhancement and sentenced Thomas to 188 months'

imprisonment. Thomas now appeals, arguing that his prior conviction for first-degree

battery under § 5-13-201 was not a crime of violence because: (1) the charging

document does not specify which subsection Thomas was charged with and (2) in any

event subsection (a)(1) does not require the use–actual, attempted, or threatened–of

violent force.2

"We review de novo a district court's application of an enhancement based

upon a prior conviction." United States v. Pierson, 544 F.3d 933, 941 (8th Cir. 2008). 

The career-offender enhancement prescribes the offense level for certain defendants

who have "at least two prior felony convictions of either a crime of violence or a

controlled substance offense." U.S.S.G. § 4B1.1(a)(3). The definition of a "crime of

violence" includes any offense, punishable by imprisonment for a termexceeding one

year, that "has as an element the use, attempted use, or threatened use of physical

force against the person of another." Id. § 4B1.2(a)(1). The Supreme Court has

addressed the question of what offenses qualify as a "violentfelony" under the Armed

Career Criminal Act (ACCA), Johnson v. United States, 559 U.S. 133 (2010), and we

employ that analysis to determine whether an offense is a crime of violence under the

Because we affirm the district court, we do not reach Thomas's further 2

arguments that his previous convictions for second-degree battery and kidnaping

likewise do not qualify as crimes of violence.

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Guidelines, e.g., Boose, 739 F.3d at 1187 n.1 (noting the ACCA's and Guidelines'

"nearly identical definitions" of "violent felony" and "crime of violence").

Under Johnson, a previous conviction is one for a crime of violence if the crime

of conviction requires as an element the actual, attempted, or threatened use of

"violent force"–i.e., "force capable of causing physical pain or injury to another

person." 559 U.S. at 140. If violent force is an element of the crime of conviction,

the inquiry ends; by being convicted of that crime the defendant necessarily has been

convicted of a crime employing violent force and, therefore, a crime of violence. The

district court maymake this determination by "look[ing] only to the fact of conviction

and the statutory definition of the prior offense." Taylor v. United States, 495 U.S.

575, 602 (1990). This "categorical approach" is not appropriate, however, if the

defendant has been convicted under a statute that defines both crimes that do and

crimes that do not qualify as a crime of violence. In that case, the district court may

look to certain kinds of record evidence to determine which of these crimes the

defendant was convicted of–the so-called "modified categorical approach." See

United States v. Ossana, 638 F.3d 895, 899-900 (8th Cir. 2011). In the event of a past

conviction based on a guilty plea, the district court may look to "the terms of the

charging document, the terms of a plea agreement or transcript of colloquy between

judge and defendant in which the factual basis for the plea was confirmed by the

defendant, or to some comparable judicial record of this information." Shepard v.

United States, 544 U.S. 13, 26 (2005). Both parties agree that the only record setting

forth a factual basis for Thomas's conviction under § 5-13-201 in this case is the

charging document.

Thomas first argues that the charging document does not establish that he was

convicted under subsection (a)(1) of § 5-13-201. Records that the district court is

permitted to rely upon under the modified categorical approach must establish the

crime of conviction by a preponderance of the evidence. United States v. Ossana, 679

F.3d 733, 736 (8th Cir. 2012). "Occasionally, . . . it will be necessary to interpret the

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state court record and make reasonable inferences based upon the Shepard-qualifying

materials in order to identify the discrete statutory subdivision at issue." Id. We

agree with the government and infer fromthe information that Thomas was convicted

under subsection (a)(1). The charge tracks the language of (a)(1), and that isthe only

subsection of § 5-13-201 that employs, asthe charge does, the term"deadly weapon." 

The state court's criminal docket indicates that the information was never amended,

and the plea agreement and sentencing order do not contradict this conclusion in any

way. See United States v. Vinton, 631 F.3d 476, 485 (8th Cir. 2011) (concluding

defendant was convicted under a subsection of a statute because "[t]he charging

instrument precisely track[ed] the language" of that subsection).

Second, Thomas argues that § 5-13-201(a)(1) does not qualify as a crime of

violence under U.S.S.G. § 4B1.2(a)(1). But asthe plain language of § 5-13-201(a)(1)

and the statutory definition of "serious physical injury" suggest, one must cause

serious injury to violate § 5-13-201(a)(1). In Smith v. State, 98 S.W.3d 433, 438

(Ark. 2003), the Supreme Court of Arkansas held that repeatedly striking a victim in

the head with the butt of a gun merely inflicted "physical injury" sufficient for a

second-degree battery conviction but not "serious physical injury" as required for

first-degree battery. Thus, if it is the case that a defendant exercises physical force 3

to violate subsection (a)(1) by causing serious physical injury as Arkansas defines and

interprets that term, then such physical force unquestionably meets the definition of

"violent force" set forth in Johnson; that force must necessarily have been capable of

causing physical pain or injury to another person. 

The question, then, is whether it is possible to inflictserious physical injury by

means of a deadly weapon, as those terms are defined in the Arkansas Code, without

Although we are not bound by Arkansas state courts' definition of "physical 3

force" as that term is used in the Guidelines, we are bound by their interpretation of

what § 5-13-201(a)(1) requires. Johnson, 559 U.S. at 138.

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employing physical force. We conclude it is not. As the Supreme Court has

explained, the term physical force "plainly refers to force exerted by and through

concrete bodies." Johnson, 559 U.S. at 138. The Arkansas Code's definition of

"deadly weapon" describesjust such a physical instrumentality. Ark. Code Ann. § 5-

1-102(4). This result is demanded by both common sense and our precedent. See

United States v. Rice, 813 F.3d 704, 706 (8th Cir. 2016) (holding Arkansas's statute

for second-degree battery prohibiting "intentionally or knowingly . . . caus[ing]

physical injury" is a crime of violence under the Guidelines' force clause (alteration

in original) (quoting Ark. Code Ann. § 5-13-202)); Vinton, 631 F.3d at 485-86 (same

for a Missouri assault statute making it a crime if a person "[a]ttempts to cause or

knowingly causes physical injury to another person by means of a deadly weapon or

dangerous instrument" (quoting Mo. Rev. Stat. § 565.060.1(2)).4

Accordingly, we affirm.

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Thomas's reliance on the dissent in Rice is unavailing, not least because we 4

are bound by the court's opinion in that case.

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