Opinion
No. 22-2254
05-08-2023
UNITED STATES of America, Plaintiff - Appellee v. Kaleb Alan SHANNAN Defendant - Appellant
Counsel who presented argument on behalf of the appellant and appeared on the brief was Heather Quick, AFPD, of Cedar Rapids, IA. Counsel who presented argument on behalf of the appellee was Alexa Kathleen Perez, AUSA, of Des Moines, IA. The following attorney(s) appeared on the appellee brief; Melisa K. Zaehringer, AUSA, of Davenport, IA.
Appeal from United States District Court for the Southern District of Iowa - Eastern Counsel who presented argument on behalf of the appellant and appeared on the brief was Heather Quick, AFPD, of Cedar Rapids, IA. Counsel who presented argument on behalf of the appellee was Alexa Kathleen Perez, AUSA, of Des Moines, IA. The following attorney(s) appeared on the appellee brief; Melisa K. Zaehringer, AUSA, of Davenport, IA. Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges. ERICKSON, Circuit Judge.
Kaleb Shannan was convicted of being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, over Shannan's objection, the district court applied an increased base offense level of 24 under U.S.S.G. § 2K2.1(a)(2), finding Shannan's two prior convictions for aggravated assault under Iowa Code § 708.2(3) and his prior conviction for aggravated domestic abuse assault under Iowa Code § 708.2A(2)(c) qualify as convictions for crimes of violence. Shannan appeals, arguing the district court erred in making these determinations. We affirm.
The Honorable Stephanie M. Rose, Chief Judge, United States District Court for the Southern District of Iowa.
We review de novo the question of whether a prior conviction qualifies as a crime of violence. United States v. Williams, 926 F.3d 966, 969 (8th Cir. 2019) (citations omitted). U.S.S.G. § 2K2.1(a)(2) provides for an increased base offense level of 24 "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." A crime of violence is any felony offense that: (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 one of several enumerated offenses, including "aggravated assault" (the enumerated-offenses clause). U.S.S.G. § 4B1.2(a); see also id. § 2K2.1 cmt. n.1 (referring to § 4B1.2 for the definition of "crime of violence").
Under Iowa Code § 708.2(3), aggravated assault occurs when "[a] person . . . commits an assault, as defined in section 708.1, and uses or displays a dangerous weapon in connection with the assault." In United States v. McGee, this Court held § 708.2(3) qualifies as a crime of violence under the force clause because the "display" of a dangerous weapon requires at least the threatened use of physical force. 890 F.3d 730, 736-37 (8th Cir. 2018). Shannan argues McGee is not controlling because the "use" of a dangerous weapon under § 708.2(3) is a different means of violating § 708.2(3) than the "display" of a dangerous weapon. In Shannan's view, the "use" of a dangerous weapon does not require the use of requisite force under the force clause. Iowa courts have not differentiated between the "use" and the "display" of a dangerous weapon, and our survey of Iowa case law suggests no distinction. See, e.g., State v. Allen, 965 N.W.2d 909, 911 (Iowa 2021) (citation omitted) (stating that a conviction for assault while using or displaying a dangerous weapon requires the State to prove that the defendant committed assault while displaying a dangerous weapon towards the victim in a threatening manner); cf. State v. Lillie, No. 21-1393, 2022 WL 2824779, at *1, *3 (Iowa Ct. App. July 20, 2022) (finding sufficient evidence to support a conviction when the defendant displayed a firearm even though she also discharged the firearm).
Shannan also relies on an unpublished Fifth Circuit opinion, United States v. Rico-Mendoza, 548 F. App'x 210 (5th Cir. 2013) (per curiam), contending that a § 708.2(3) violation does not require an intentional or knowing display of force as is required for an offense to qualify as a crime of violence under Borden v. United States, — U.S. —, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021) (plurality opinion). In Rico-Mendoza, the Fifth Circuit concluded § 708.2(3) is not categorically a crime of violence under the force clause because a defendant could violate § 708.2(3) by an "accidental or jesting pointing" of a weapon. 548 F. App'x at 214. We disagree with Rico-Mendoza's conclusion. The Iowa decisions cited in Rico-Mendoza do not suggest a § 708.2(3) violation can occur accidentally or in a jesting manner. See State v. Harris, 705 N.W.2d 105 (Iowa Ct. App. 2005) (unpublished table decision) (finding sufficient evidence to support a conviction when the defendant angrily stood with a rifle in the " 'ready' position" during an argument with the victims and the factfinder could infer his "intent was to intimidate" them); State v. Mott, No. 00-575, 2001 WL 433395, at *1-2 (Iowa Ct. App. Apr. 27, 2001) (rejecting the defendant's argument that the state "failed to prove he intentionally displayed [a] knife toward" the victim when the defendant angrily paced with a knife, stabbed a desk, and questioned the victim).
In addition, we are unaware of any Iowa case in which a defendant was convicted under § 708.2(3) without knowingly or intentionally displaying a dangerous weapon. Accordingly, there is no "realistic probability" the Iowa courts would apply § 708.2(3) in a situation where the defendant did not knowingly or intentionally display a dangerous weapon. See United States v. Bragg, 44 F.4th 1067, 1076 (8th Cir. 2022) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)).
Because Shannan's two convictions under § 708.2(3) categorically qualify as crimes of violence under the force clause, the district court did not err in applying an increased base offense level under U.S.S.G. § 2K2.1(a)(2). We decline to address the remaining arguments.
For the foregoing reasons, we affirm the judgment of the district court.