United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-3398

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa. 

Kevin Dondi Craig, *

*

Appellant. *

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Submitted: April 14, 2010

Filed: January 5, 2011

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Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Kevin Craig appeals his conviction based on a conditional guilty plea and his

subsequent 120-month sentence for being a felon in possession of a firearm and

ammunition in violation of 18 U.S.C. § 922(g)(1). In this appeal, Craig argues that

the district court1

 erred in denying his motion to suppress physical evidence and

statements he gave to law enforcement officers. He also appeals his sentence, arguing

that one of his prior convictions was not a “crime of violence.” We affirm. 

1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa. 
I.

Around 10:30 p.m. in late November 2008, emergency operators for Butler

County, Iowa, received a phone call from a motorist who reported seeing a woman

walking down the road, carrying a baby, and attempting to flag down passing vehicles. 

As Butler County Deputy Sheriff Kiley Winterberg attempted to locate the woman,

emergency operators received another call reporting a young woman and baby seeking

shelter at a house in the area. Deputy Winterberg arrived at the house and met the

young woman, who is identified in the police report as C.W. 

C.W. reported that earlier that evening Kevin Craig, her stepfather, had, after

drinking heavily with friends, retrieved a handgun from a bedroom and fired a shot

through the front door of the residence. C.W. then took her baby to a bedroom where

she was undisturbed for a short period of time until Craig entered the room, began

screaming at C.W., and pulled C.W.’s hair. C.W. then fled the residence with the

baby. C.W. also told Deputy Winterberg that Craig was a felon and had sexually

assaulted her in the past. Deputy Winterberg then confirmed that Craig was a felon

and a registered sex offender. C.W. warned Deputy Winterberg to be cautious as he

approached Craig’s residence because Craig was intoxicated, upset, and had multiple

firearms. 

Deputy Winterberg contacted Sheriff Jason Johnson for directions on how to

proceed. After discussing the situation, it was agreed that Deputy Winterberg, along

with two other deputies and the Chief of Police of Greene, Iowa, would approach the

residence to determine whether Craig was in the residence, and if no one answered,

officers would seek a search warrant for the home. 

After midnight, the officers approached Craig’s residence. In response to

Deputy Winterberg’s knock, Corey Sawvel answered the rear door of the residence. 

Officers removed Sawvel and placed him in handcuffs. Recognizing that Sawvel did

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not match Craig’s description, officers asked him whether Craig was in the residence. 

Sawvel responded that he believed Craig had left earlier in the evening with a female. 

Officers requested permission to search the residence, and Sawvel shrugged his

shoulders and responded, “do what you got to do.” Before officers entered the

residence, however, Sawvel told them it was not his house. 

Officers entered Craig’s home and announced themselves as “sheriff’s office.” 

As they did so, Craig responded from behind a closed door, “Who the fuck is in my

house and what the fuck is going on?” At the officers’ request, Craig came out of the

bedroom, clothed only in a blanket. In response to officer questioning, Craig admitted

to being a convicted felon and to shooting a gun earlier in the evening. Craig was

arrested and transported to the Butler County Jail. 

While inside the residence, officers observed marijuana and several firearms in

plain view. Deputy Winterberg prepared a search warrant application that described

the events of the evening and also included the officers’ observation of the drugs and

firearms after their warrantless entry into the residence. Officers later executed the

search warrant and seized firearms, ammunition, and other items from the residence. 

Later that morning, Craig made a first appearance based on state court charges. 

Bond was posted on his behalf, and he was released from detention. The following

day, Craig went to the Sheriff’s office and offered to provide a urine sample for drug

testing. Sheriff Johnson testified that he was not expecting Craig and had not

requested the urine sample but administered the test at Craig’s request. After the test,

Craig asked to speak with Sheriff Johnson. Sheriff Johnson agreed to speak to Craig

and then activated a digital recording device. At the beginning of the conversation,

Sheriff Johnson reminded Craig of his Miranda2

 rights. Craig proceeded to provide

his version of the events of the evening, admitting that he had used a shotgun as a club

2

Miranda v. Arizona, 384 U.S. 436 (1966).

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and had shot a “snub nose” through the screen door. He also admitted going into

C.W.’s room, waking her up, and wrestling with her. 

The government indicted Craig on one count of being a felon in possession of

a firearm and ammunition in violation of section 922(g)(1). Craig sought to suppress

the physical evidence and statements he made both the night of the arrest and later to

Sheriff Johnson. Prior to a ruling on his motion, Craig entered a conditional plea of

guilty, reserving the right to withdraw his plea if the suppression ruling was in his

favor and allowing him to appeal any adverse ruling on his motion to suppress. 

Adopting the recommendations of the magistrate judge,3

 the district court denied

Craig’s motion to suppress, holding (1) that the physical evidence was admissible

pursuant to the independent source doctrine, and (2) that Craig’s statements to Sheriff

Johnson were sufficiently attenuated from the warrantless entry into the residence that

those statements could not be “fruit of the poisonous tree.” The district court

suppressed the statements Craig made while in his residence on the night of the arrest. 

At sentencing, the district court held that Craig’s two prior Tennessee felony

convictions for sexual battery constituted crimes of violence under the Guidelines and

that his advisory sentencing Guidelines range was 108 to 135 months. The district

court imposed the statutory maximum of 120 months imprisonment and noted that

even if the Guidelines determination was incorrect, “after considering all the statutory

factors that apply under 18 United States Code Section 3553(a), I would give him the

very same sentence” as Craig was “a very dangerous person” and the 120-month

sentence was justified “based on the facts and circumstances of the case, the history

and characteristics of the defendant, [and] the need to protect the public from people

like Mr. Craig.” 

3

The Honorable Jon Stuart Scoles, United States Magistrate Judge for the

Northern District of Iowa. 

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II.

In this appeal, we consider whether the district court erred in (1) denying

Craig’s motion to suppress the physical evidence seized from his residence, (2)

denying his motion to suppress statements he made after he was released from

custody, and (3) deciding that his prior convictions from Tennessee for sexual battery

constituted crimes of violence under the Guidelines. We address each in turn. 

A.

Craig argues that officers illegally entered his home and that the district court

erred in concluding the search warrant that was eventually issued for the residence

was an “independent source” for the evidence seized from the residence. “When

reviewing a district court’s denial of a motion to suppress, we examine for clear error

the district court’s factual findings, and we review de novo the ultimate question of

whether the Fourth Amendment has been violated.” United States v. Fuse, 391 F.3d

924, 927 (8th Cir. 2004). 

The government does not argue the entry into Craig’s home was a valid

warrantless entry. See Payton v. New York, 445 U.S. 573, 589-90 (1980) (police may

not enter a suspect’s home without a warrant in order to effectuate a routine felony

arrest). Rather, the government argues that the physical evidence initially discovered

during the illegal entry is admissible under the independent source doctrine—that is,

the search warrant, absent the taint of the illegal entry, was an independent source for

the physical evidence. 

As we explained in United States v. Swope:

A warrant obtained after an illegal search is not an independent source

if either of the following are true: “if the agents’ decision to seek the

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warrant was prompted by what they had seen during the initial entry,”

and “if information obtained during that entry was presented to the

Magistrate and affected his decision to issue the warrant.” Murray [v.

United States], 487 U.S. [533], 542 [(1988)]. In other words, Murray

asks the following two questions, both of which must be answered in the

affirmative for the warrant to be an independent source: first, would the

police have applied for the warrant had they not acquired the tainted

information; and second, do the application affidavits support probable

cause after the tainted information has been redacted from them.

542 F.3d 609, 613-14 (8th Cir. 2008), cert. denied, 129 S. Ct. 1018 (2009). 

Craig focuses his argument on whether officers would have sought the search

warrant had they not observed the firearms and marijuana upon illegally entering

Craig’s home. Craig argues that the officers testified they would have sought the

search warrant only if he had not been at the residence. Thus, according to Craig, the

government has not shown that the officers would have applied for the search warrant

had they not observed the firearm and marijuana in plain view. 

At the suppression hearing, Deputy Winterberg testified that had the officers

not been able to gain entry into the home because the occupants refused to open the

door or because no one was at the residence, the officers would have applied for a

search warrant to gain entry into the residence. Sheriff Johnson also testified that had

Deputy Winterberg not been able to obtain entry into the home, he would have

directed Deputy Winterberg to seek a search warrant. 

In Murray, the Supreme Court stated: 

To determine whether the warrant was independent of the illegal entry,

one must ask whether it would have been sought even if what actually

happened had not occurred—not whether it would have been sought if

something else had happened. That is to say, what counts is whether the

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actual illegal search had any effect in producing the warrant, not whether

some hypothetical illegal search would have aborted the warrant.

487 U.S. at 542 n.3. The district court found that “Deputy Winterberg would have

applied for a warrant had he not acquired the tainted information.” This finding is

supported by the suppression hearing testimony of Deputy Winterberg and Sheriff

Johnson. This testimony is sufficient to support the district court’s finding that the

physical evidence the officers observed while illegally in the residence did not prompt

the officers to obtain the warrant. Thus, the first part of the independent source

doctrine is satisfied. 

As to the second part of the test, Craig acknowledges that under Swope, we

consider “whether the redacted [search warrant] application supports probable cause,”

542 F.3d at 616, but he argues that Swope was wrongly decided on this point. He

admittedly questions the Swope holding only to preserve that issue. Because one

panel of this court may not overturn another, see United States v. Snyder, 511 F.3d

813, 818 (8th Cir.), cert. denied, 554 U.S. 908 (2008), and because Craig concedes

that, absent the tainted information, there was probable cause to support the issuance

of a search warrant, the second part of the independent source doctrine is satisfied. 

B.

Next, Craig argues that the statements he made to Sheriff Johnson the day after

his release on bail were inadmissable because he would not have made those

statements absent the illegal entry into his residence. “Verbal statements obtained as

a result of a Fourth Amendment violation are as much subject to the exclusionary rule

as are items of physical evidence discovered during an illegal search.” United States

v. Yousif, 308 F.3d 820, 832 (8th Cir. 2002) (citing Wong Sun v. United States, 371

U.S. 471, 485 (1963) (“The Fourth Amendment may protect against the overhearing

of verbal statements as well as against the more traditional seizure of ‘papers and

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effects.’”)). The government does not challenge the district court’s conclusion that

the officers’ entry into Craig’s home violated Payton. However, the Supreme Court

held in New York v. Harris that “the rule in Payton was designed to protect the

physical integrity of the home; it was not intended to grant criminal suspects . . .

protection for statements made outside their premises where the police have probable

cause to arrest the suspect for committing a crime.” 495 U.S. 14, 17 (1990). Officers

had probable cause to arrest Craig before they entered his residence. Accordingly,

Craig’s voluntary statements made to Sheriff Johnson a day after Craig’s release on

bond are not subject to exclusion, and the district court properly denied the motion to

suppress. 

C.

Finally, Craig argues that the district court erred in concluding he had two prior

crimes of violence under the Guidelines, resulting in a base offense level of 24. See

United States Sentencing Commission, Guidelines Manual, §2K2.1(a)(2). “We

review de novo a district court’s finding that a prior conviction constitutes a crime of

violence under the Sentencing Guidelines.” United States v. Wilson, 562 F.3d 965,

967 (8th Cir. 2009). 

Craig has two prior convictions under Tennessee’s sexual battery statute, one

of which he claims does not constitute a crime of violence. The relevant portion of

the statute provides:

(a) Sexual battery is unlawful sexual contact with a victim by the 

defendant or the defendant by a victim accompanied by any of the 

following circumstances:

(1) Force or coercion is used to accomplish the act;

(2) The sexual contact is accomplished without the consent of the victim 

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and the defendant knows or has reason to know at the time of the contact 

that the victim did not consent; . . . . 

Tenn. Code Ann. § 39-13-505(a)(1)-(2). Here, the physical element requires “sexual

contact,” which the Tennessee Code defines as: 

the intentional touching of the victim’s, the defendant’s, or any other

person’s intimate parts, or the intentional touching of the clothing

covering the immediate area of the victim’s, the defendant’s, or any other

person’s intimate parts, if that intentional touching can be reasonably

construed as being for the purpose of sexual arousal or gratification. 

Tenn. Code Ann. § 39-13-501(6). The offense in question violated subsection (a)(2),

which Craig describes as the “statute’s non-force alternative.” Accordingly, he argues

that it is not a crime of violence as provided under the Guidelines. 

Guidelines section 4B1.2(a) defines a “crime of violence” as

any offense under federal or state law, punishable by imprisonment for

a term exceeding one year, that – 

(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another.

See U.S.S.G. §4B1.2(a); see also U.S.S.G. §2K2.1(a)(2), comment. (n.1). 

As we have recognized, “[t]he definition of ‘crime of violence’ in U.S.S.G.

§4B1.2(a) is nearly identical to the definition of ‘violent felony’ in 18 U.S.C.

§ 924(e)(2)(B), and we treat the two as interchangeable.” United States v. Clinkscale,

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559 F.3d 815, 817 (8th Cir. 2009). But see United States v. Ross, 613 F.3d 805, 809-

10 (8th Cir. 2010) (noting “that the practice of interchanging the two provisions

cannot be followed universally” because the Guidelines “include binding commentary

that is not applicable to § 924(e)”). To qualify as a “violent felony” or “crime of

violence,” the offense must have “‘as an element the use, attempted use, or threatened

use of’” violent physical force “‘against the person of another,’ that is, force capable

of causing physical pain or injury to another person.” Johnson v. United States, 130

S. Ct. 1265, 1268, 1271 (2010) (quoting 18 U.S.C. § 924(e)(2)(B)). The Tennessee

statute criminalizes nonconsensual sexual contact, which may or may not have caused

physical pain or injury to another person. Therefore, Craig’s conviction of sexual

battery section 39-13-505(a)(2) of the Tennessee Code does not meet the definition

of “crime of violence” under section 4B1.2(a)(1). 

We do find, however, that Craig’s sexual battery offense meets the definition

of “crime of violence” under section 4B1.2(a)(2). Because Craig’s sexual battery

offense does not involve “the use, attempted use, or threatened use of physical force

against the person of another” and does not constitute “burglary of a dwelling, arson,

[] extortion, [or the] use of explosives,” we must decide if it is an offense that

“otherwise involves conduct that presents a serious potential risk of physical injury

to another.” U.S.S.G. §4B1.2(a). This part of section 4B1.2(a)(2) is often referred to

as the “residual” or “otherwise” clause. In Begay v. United States, the Supreme Court

set forth the analysis courts should undertake to determine whether a crime falls

within the residual clause. 553 U.S. 137 (2008). An offense falls within the residual

clause if it first, “otherwise involves conduct that presents a serious potential risk of

physical injury to another,” U.S.S.G. §4B1.2(a)(2), and second, the offense’s statutory

definition is “roughly similar, in kind as well as in degree of risk posed, to the [listed

offenses] themselves.” Begay, 553 U.S. at 143. The Court determined that the

residual clause does not include all crimes that pose a serious risk of physical injury

to another. Id. at 141-43. “Rather, it covers only crimes that, in addition to posing

such a risk, are ‘similar’ to the ACCA’s ‘listed examples–burglary, arson, extortion,

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or crimes involving explosives’ in that they ‘typically involve purposeful, violent, and

aggressive conduct.’” United States v. Jones, 574 F.3d 546, 550 (8th Cir. 2009)

(quoting Begay, 553 U.S. at 142, 144-45). 

In addressing this standard, our recent decision in United States v. Hennecke

is informative. 590 F.3d 619 (8th Cir.), cert. denied, 131 S. Ct. 78 (2010). There we

held that stealing from a person is a crime of violence under the residual clause

because it “always poses a risk that the victim of this direct, unlawful contact will

detect what is happening, resulting in a violent face-to-face confrontation.” Id. at 623;

see also United States v. Parks, 620 F.3d 911, 915 (8th Cir. 2010) (holding that when

an inmate escapes from a guarded facility he acts with “purposeful, violent, and

aggressive behavior” and creates a substantial risk of violent confrontation). As

Hennecke demonstrates, while the crime itself may be accomplished without violent

physical force, the offense may nevertheless be a “crime of violence” under the

residual clause if it creates a substantial risk of a violent confrontation and involves

“purposeful, violent, and aggressive behavior.” 

The sexual battery conviction at issue here requires the intentional touching of

the “intimate parts” of a victim for the purpose of sexual gratification without the

victim’s consent and with knowledge that consent was not given. As to the first part

of the test, this offense creates a substantial risk of a violent, face-to-face

confrontation should the victim, or another person who would protect the victim,

become aware of what is happening. Further, the offense involves the intentional act

of touching a person’s “intimate parts,” and thus the offender’s behavior is purposeful

and aggressive. Under the residual clause of section 4B1.2(a)(2), Craig’s conviction

for sexual battery under section 39-13-505(a)(2) of the Tennessee Code constitutes a

crime of violence. The district court did not err in reaching the same conclusion. 

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III.

We affirm Craig’s conviction and sentence. 

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