United States v. Keidell Doyal
Opinion
Keidell Doyal pleaded guilty to being a felon in possession of a firearm and ammunition, in violation of
I.
As relevant here, "crime of violence" is defined to include any offense punishable by a term of imprisonment exceeding one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. §§ 2K2.1, comment. (n.1), 4B1.2(a)(1). In determining whether Doyal's conviction for Missouri second degree domestic assault is a crime of violence under this "force clause," we look, categorically, at the generic elements of the offense, not the facts of Doyal's conviction.
United States v. McGee
,
*976
Mathis v. United States
, --- U.S. ----,
In 2004, Doyal was convicted of domestic assault in the second degree, a violation of
1. A person commits the crime of domestic assault in the second degree if the act involves a family or household member or an adult who is or has been in a continuing social relationship of a romantic or intimate nature with the actor ... and he or she:
(1) Attempts to cause or knowingly causes physical injury to such family or household member by any means, including but not limited to, by use of a deadly weapon or dangerous instrument, or by choking or strangulation; or
(2) Recklessly causes serious physical injury to such family or household member; or
(3) Recklessly causes physical injury to such family or household member by means of any deadly weapon.
2. Domestic assault in the second degree is a class C felony.
In
United States v. Phillips
,
Prior to this appeal, the Supreme Court vacated our judgment in
Phillips
and remanded for further consideration in light of its decision in
Mathis
.
Phillips v. United States
, --- U.S. ----,
Alternatively, Doyal argues that, even if § 565.073 divisible, § 565.073.1(1) is not a crime of violence under the force clause
*977
because it does not require the use of
violent
force as an element. This argument is contrary to controlling Eighth Circuit precedents.
See, e.g.
,
United States v. Haileselassie
,
II.
If § 565.073 is divisible, the modified categorical approach permits the district court to look at a limited class of documents, such as charging papers, jury instructions, and plea agreements and colloquy, to determine whether Doyal was convicted of committing a crime of violence.
See
Shepard v. United States
,
When the district court does not find what subpart of a divisible statute the defendant violated, as in this case, we need not remand if the record conclusively establishes the offense of conviction.
See
United States v. Vinton
,
At sentencing, the government introduced the judgment and order evidencing Doyal's prior conviction for Missouri second degree domestic assault, and the First Amended Information referenced in the judgment and order. The First Amended Information charged that Doyal "committed the class C felony of Domestic Assault in the Second Degree" when he "attempted to cause serious physical injury to [the victim] by striking her with an automobile and [the victim] ... was the girl friend of the defendant."
Doyal argues the government's evidence was insufficient because the First Amended Information and the judgment did not identify which subsection he violated, and the First Amended Information incorporated language from two different subsections when it charged that Doyal "attempted to cause serious physical injury." We disagree. Only § 565.073.1(1) criminalizes attempts. As Doyal points out, subsection (1) proscribes attempts to cause "physical injury" to a domestic victim, whereas subsection (2) requires proof that defendant "[r]ecklessly causes
serious
physical injury." But except for adding the word "serious," which if anything alleged a
more
violent crime, the First Amended Information tracked the language of § 565.073.1(1), like the indictment in
Jones
,
The judgment of the district court is affirmed.
The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri.
Although
Mathis
interpreted the term "violent felony" under the Armed Career Criminal Act,
Doyal argues that § 565.073.1 is overbroad because subsections (2) and (3) criminalize reckless conduct, an issue we noted but did not decide in
Griffin v. United States
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Keidell L. DOYAL, Defendant-Appellant.
- Cited By
- 10 cases
- Status
- Published