United States Court of Appeals

For the Eighth Circuit 

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No. 18-3317

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United States of America

 Plaintiff - Appellee

v.

Bradd Alan Quigley

 Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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Submitted: September 23, 2019

 Filed: November 15, 2019

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Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges. 

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GRUENDER, Circuit Judge.

Bradd Quigley pleaded guilty to conspiracy to distribute 500 grams or more 

of a mixture and substance containing methamphetamine and 50 grams or more of 

actual methamphetamine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and 

possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. 

§ 924(c)(1)(A)(i). The presentence investigation report recommended classifying 

Quigley as a career offender under U.S.S.G. § 4B1.1 for two prior felony 
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convictions, one a crime of violence and one a controlled substance offense. Quigley 

challenged this classification, arguing that his Iowa assault with intent to inflict

serious injury conviction did not qualify as a crime of violence under the careeroffender enhancement. The district court1 rejected this argument and concluded 

Quigley qualified as a career offender. It then determined that Quigley’s criminal 

history was a Category VI, with an advisory sentencing guidelines range of 262 to 

327 months, plus a mandatory 60-month consecutive sentence for his firearms 

offense. The district court varied downward to 180 months on the conspiracy count

and imposed a 240-month sentence. Quigley appeals, challenging only the district 

court’s conclusion that his Iowa conviction for assault with intent to inflict serious 

injury qualified as a crime of violence under the career-offender enhancement. We 

affirm. 

“We review classification as a career offender de novo.” United States v. 

Boose, 739 F.3d 1185, 1186 (8th Cir. 2014). A conviction qualifies as a “crime of 

violence” for purposes of the career-offender enhancement if it is an “offense under 

federal or state law, punishable by imprisonment for a term exceeding one year,” 

that either (1) “has as an element the use, attempted use, or threatened use of physical 

force against the person of another,” (the “force clause”) or (2) is “aggravated 

assault,” among other enumerated offenses (the “enumerated-offenses clause”). 

U.S.S.G. §§ 4B1.1(a), 4B1.2(a). 

In Iowa, assault with intent to inflict serious injury is an aggravated 

misdemeanor punishable by up to two years in prison. Iowa Code §§ 708.2(1),

903.1(2). We have previously held that section 708.2(1) is categorically a crime of 

violence under the enumerated-offenses clause. United States v. Chapman, 720 F. 

App’x 794, 795-96 (8th Cir. 2018) (per curiam). Quigley suggests we erred in 

Chapman, but, whether or not we follow Chapman—an unpublished and thus 

nonprecedential opinion, see 8th Cir. R. 32.1A—Quigley cannot succeed because 

 1 The Honorable James E. Gritzner, United States District Judge for the 

Southern District of Iowa. 
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his Iowa conviction for assault with intent to inflict serious injury qualifies as a crime 

of violence under the force clause. 

The “first step” in our analysis “is to determine whether to apply the 

categorical or modified categorical approach.” United States v. Ossana, 638 F.3d 

895, 899 (8th Cir. 2011). If the statute underlying the predicate conviction “creates 

a single crime by listing a single set of elements,” it is indivisible, and we follow the 

categorical approach, looking to the elements of the offense “rather than the 

defendant’s actual conduct” to determine if it has a physical-force element. United 

States v. Schneider, 905 F.3d 1088, 1090 (8th Cir. 2018). But if the statute creates 

multiple crimes with distinct elements listed together, it is “divisible,” and we follow 

the modified categorical approach. Id. at 1090-91. Sometimes, a statute may seem 

divisible because it lists alternatives, but in fact it is indivisible because those 

alternatives “are not alternative elements, going toward the creation of separate 

crimes” but are simply “alternative ways” or “means” of “satisfying a single . . . 

element.” Mathis v. United States, 579 U.S. ---, 136 S. Ct. 2243, 2250 (2016). 

Iowa’s offense of assault with intent to inflict serious injury requires 

commission of an “assault” as defined in Iowa Code section 708.1 with the intent to 

inflict a “serious injury” as defined in Iowa Code section 702.18 on another. Iowa 

Code § 708.2(1); see State v. Edwards, 801 N.W.2d 378, 2011 WL 1878600, at *1 

(Iowa Ct. App. May 11, 2011) (unpublished) (recounting jury instructions that 

defined “serious injury” in section 708.2(1) by referring to the definition in section

702.18(1)); cf. State v. White, 668 N.W.2d 850, 859 (Iowa 2003) (looking to section

702.18 for the definition of “serious injury” as used in an Iowa criminal statute 

similar to section 708.2(1)). On its face, section 708.2(1) appears indivisible. 

The “assault” and “serious injury” elements, however, refer to other statutes

that list different types of “assault” and “serious injury.” See Iowa Code §§ 708.1(2),

702.18(1). The parties agree that the statute is divisible based on the incorporation 

of these other sections into section 708.2(1), though they disagree about the proper 

analysis under the modified categorical approach. We nevertheless conclude that 
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the statute is indivisible. The alternatives listed in sections 708.1(2) and 702.18(1)

are merely different means of satisfying the “assault” and “serious injury” elements, 

respectively, of the singular “assault with intent to inflict serious injury” crime. See, 

e.g., Bacon v. Bacon, 567 N.W.2d 414, 417-18 (Iowa 1997) (noting that section

708.1 lists “alternatives” that can satisfy the “assault” element of another Iowa 

crime); State v. McKee, 312 N.W.2d 907, 912 (Iowa 1981) (recognizing the different 

“possible kinds of serious injury . . . included in the section 702.18 definition”); Iowa 

Code § 702.18(1) (stating that a “serious injury” is “any” of the alternatives listed in 

the statute). Because section 708.2(1) merely allows for multiple factual means to 

satisfy particular elements, it remains indivisible, so we apply the categorical 

approach. See Mathis, 136 S. Ct. at 2249, 2253.

Under the categorical approach, we restrict our inquiry to “the abstract 

requirements for a conviction, rather than the defendant’s actual conduct,” and ask 

whether a conviction necessarily had “a physical-force element” for the offense to 

qualify as a crime of violence under the force clause. Schneider, 905 F.3d at 1090. 

“Physical force” is “force capable of causing physical pain or injury to another 

person.” Johnson v. United States, 559 U.S. 133, 140 (2010). If “only conduct 

involving physical force” can support a conviction under the statute, then the crime

“has a physical-force element.” Schneider, 905 F.3d at 1090. Conversely, if the 

crime can be committed without even the threatened use of physical force, it does 

not have a physical-force element. See id. 

Mere speculation that section 708.2(1) could be applied to conduct not 

involving physical force does not take the offense outside the scope of the force 

clause; rather, there must be a “non-fanciful, non-theoretical manner” to commit 

assault with intent to inflict serious injury without so much as the threatened use of 

physical force. United States v. Gaines, 895 F.3d 1028, 1033 (8th Cir. 2018). To 

make this showing, a defendant “must at least point to his own case or other cases 

in which the state courts in fact did apply the statute” in a way that takes it beyond 

the scope of the force clause. Fletcher v. United States, 858 F.3d 501, 507 (8th Cir. 

2017). 
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Quigley does not identify any Iowa cases where an individual was convicted 

under section 708.2(1) without having at least threatened to use physical force. And 

our own survey of cases reveals that this is not a “realistic probability.” See id. 

For example, in State v. Ortiz, the Iowa Supreme Court concluded that the 

evidence could not support a finding of “intent to inflict serious injury” undersection

708.2(1) where, although the defendant “displayed a knife,” he “never turned to 

confront” the victim, “did not lunge toward her or approach her with the knife,” and 

“never made any stabbing or slashing gestures at her.” 905 N.W.2d 174, 182-83 

(Iowa 2017). The component missing that was needed to satisfy the elements of 

section 708.2(1) was the use or threatened use of physical force. 

Consider also Gaines, in which the defendant argued that his conviction under 

Iowa Code section 708.2A(2)(c) for domestic abuse “assault” as defined in section 

708.1 “with the intent to inflict a serious injury upon another” did not qualify as a

“crime of violence” for purposes of the career-offender enhancement. 895 F.3d at 

1031. We concluded that “[b]y pleading guilty” to this offense, the defendant 

“affirmed that he committed an assault . . . with the intent to inflict a serious injury,” 

which “qualified as the use, attempted use, or threatened use, of physical force” as 

required under the force clause of the career-offender enhancement. Id. at 1033. 

As in Gaines, so too here. Quigley’s commission of assault with intent to 

inflict serious injury necessarily involved the use, attempted use, or threatened use 

of physical force. And “we can think of no non-fanciful, non-theoretical manner in 

which to commit such crime” without at least threatening use of physical force. See 

id. 

Thus, Quigley’s assault conviction qualifies as a crime of violence under the 

force clause of the career-offender enhancement. We affirm. 

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