United States of America v. Benjamin Robert Yackel

United States Court of Appeals
For the Eighth Circuit
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No. 20-1157
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United States of America
Plaintiff - Appellee
v.
Benjamin Robert Yackel
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: November 16, 2020
Filed: March 15, 2021
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Before SHEPHERD, STRAS, and KOBES, Circuit Judges.
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SHEPHERD, Circuit Judge.
Benjamin Robert Yackel pled guilty to one count of conspiracy to distribute
methamphetamine and to one count of possession of a firearm in furtherance of a
drug trafficking crime. The district court1 adopted the Presentence Investigation
1 The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota.

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Report’s (PSR) finding that Yackel was a career offender, and pursuant to the United
States Sentencing Guidelines, sentenced him to 240 months imprisonment. On
appeal, Yackel challenges his classification as a career offender. Having jurisdiction
pursuant to 28 U.S.C. § 1291, we affirm the district court.
I.
A grand jury indicted Yackel on various drug distribution and firearms
charges. Yackel pled guilty to conspiracy to distribute methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; and to possession of a
firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A). Yackel’s PSR concluded that his Guidelines base offense level was
37, due in part to his status as a career offender. Yackel received a three-level
reduction in offense level for timely acceptance of responsibility, bringing his base
offense level to 34.
At sentencing, based on Yackel’s 1999 Minnesota conviction for aiding and
abetting second-degree assault and his 2004 federal conviction for possession of
methamphetamine with the intent to distribute, the district court concluded that
Yackel qualified for a career offender enhancement in offense level pursuant to
USSG § 4B1.1-.2 and adopted the PSR’s factual findings in full. Yackel objected
to the PSR’s finding that he qualified as a career offender, asserting that the
Minnesota aiding and abetting statute is broader than the generic definition. The
district court recognized Yackel’s objection before overruling it, stating, “[A]s I am
bound by the Eighth Circuit precedent and under [United States v. Gammell, 932
F.3d 1175 (8th Cir. 2019)], I find that Mr. Yackel’s argument is unpersuasive and I
overrule that objection.” R. Doc. 220, at 6.
The district court adopted all of the factual statements contained in the PSR
before calculating Yackel’s total offense level as 34, his criminal history category as
VI, and his advisory Guidelines range as 322 to 387 months imprisonment. Yackel
requested a downward departure on the basis that his criminal history was

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overstated. The district court granted the motion, stating that Yackel’s criminal
history score was “substantially over-represented,” R. Doc. 220, at 15, and departed
downward by one level to 33. The district court recalculated Yackel’s advisory
range as 295 to 353 months imprisonment. Yackel then requested a downward
variance. Ultimately, the district court sentenced Yackel to 240 months
imprisonment (180 months for conspiracy to distribute methamphetamine and 60
months for possession of a firearm in furtherance of a drug trafficking crime to run
consecutively).
II.
On appeal, Yackel reasserts the argument that he made to the district court:
Minnesota’s definition of aiding and abetting is overly broad—i.e., broader than the
generic definition—such that his 1999 conviction for aiding and abetting second-
degree assault cannot qualify as a “crime of violence” under the Guidelines. We
disagree.
“We review de novo a district court’s finding that prior convictions constitute
crimes of violence as defined in § 4B1.2.” United States v. Davis, 583 F.3d 1081,
1092 (8th Cir. 2009) (citation omitted). “Under . . . § 4B1.1, a defendant is subject
to a sentencing enhancement as a career offender if he has at least two previous
felony convictions for either a crime of violence or a controlled substance offense.”
United States v. Garcia, 946 F.3d 413, 417 (8th Cir. 2019). Section 4B1.1(a)
provides, in part:
A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the instant
offense of conviction; (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.

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USSG § 4B1.1(a). Further, § 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” which includes crimes that “ha[ve] as an element the use . . . of physical force
against the person of another, or is . . . aggravated assault.” USSG § 4B1.2(a).
At the outset of our analysis, it is important to note that this Court construes
“violent felony” (under the Armed Career Criminal Act (ACCA)) and “crime of
violence” (under the Guidelines) as interchangeable. See, e.g., United States v.
Boose, 739 F.3d 1185, 1187 n.1 (8th Cir. 2014). “Because the definitions of crime
of violence and violent felony are identical, the same analysis applies in determining
whether [the defendant’s] convictions fall within the conduct defined.” United
States v. Sprouse, 394 F.3d 578, 580 (8th Cir. 2005), abrogated on other grounds by
United States v. Steward, 598 F.3d 960 (8th Cir. 2010) (per curiam); see also United
States v. Williams, 537 F.3d 969, 971 (8th Cir. 2008) (“[W]e are bound by cases
interpreting whether an offense is a crime of violence under the Guidelines as well
as cases interpreting whether an offense is a violent felony under the [ACCA].”).
When a defendant (like Yackel) argues that the state statute of conviction is
broader than the corresponding generic crime, this Court employs the categorical
approach, comparing the state statute’s elements with those of the generic crime.
See, e.g., Descamps v. United States, 570 U.S. 254, 257 (2013); see also United
States v. Boleyn, 929 F.3d 932, 937 n.3 (8th Cir. 2019) (“As aiding and abetting
liability is inherent in every conviction under [state law], it is consistent with the
categorical approach to look to [the state’s] aiding and abetting statute in
determining whether the prior offense of conviction is overbroad.”); see also, e.g.,
Gammell, 932 F.3d at 1183 (Kobes, J., concurring) (explaining that the categorical
approach, as modeled in Boleyn, 929 F.3d at 937 n.3, is appropriate when
determining whether Minnesota’s aiding and abetting statute is broader than the
generic definition).
By “generic,” we mean the offenses must be viewed in the abstract, to
see whether the state statute shares the nature of the federal offense that

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serves as a point of comparison. Accordingly, a state offense is a
categorical match with a generic federal offense only if a conviction of
the state offense “‘necessarily’ involved . . . facts equating to [the]
generic [federal offense].”
Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (alterations in original) (citation
omitted); see also Descamps, 570 U.S. at 257 (“The prior conviction qualifies as an
ACCA predicate only if the statute’s elements are the same as, or narrower than,
those of the generic offense.”). “But if the [state] statute sweeps more broadly than
the generic crime, a conviction under that law cannot count as an ACCA predicate,
even if the defendant actually committed the offense in its generic form.” Descamps,
570 U.S. at 261. Because our analyses of predicate offenses under the ACCA (i.e.,
whether a prior offense qualifies as a “violent felony”) and the Guidelines (i.e.,
whether a prior offense qualifies as a “crime of violence”) are identical, see, e.g.,
Boose, 739 F.3d 1187 n.1; Sprouse, 394 F.3d 580; Williams, 537 F.3d 971, here, as
in Descamps, 570 U.S. at 261, Yackel’s prior conviction for aiding and abetting
second-degree assault can only qualify as a “crime of violence” if Minnesota’s
statute is the same as or narrower than the generic offense.
Section 609.05 of Minnesota’s criminal code provides: “A person is
criminally liable for a crime committed by another if the person intentionally aids,
advises, hires, counsels, or conspires with or otherwise procures the other to commit
the crime.” Minn. Stat. § 609.05, subdiv. 1. Yackel concedes that a Minnesota
conviction for second-degree assault qualifies as a “crime of violence,” see USSG §
4B1.2, and that the Guidelines define “crime of violence” as including the offense
of aiding and abetting, see also USSG § 4B1.2 cmt. n.1. Further, Yackel
acknowledges that there is no distinction between a conviction as a principal and a
conviction as an aider and abettor. See Gammell, 932 F.3d at 1180 (holding that it
matters only whether the underlying substantive offense qualifies as a violent
felony—not whether the defendant was convicted as an aider and abettor rather than
as a principal). Instead, Yackel only advances the argument that Minnesota’s
definition of aiding and abetting is overbroad because it criminalizes passive,

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unknowing conduct (e.g., mere presence) while the generic definition requires proof
of affirmative conduct intended to promote the underlying crime.
The crux of Yackel’s argument is the assertion that Minnesota’s application
of its aiding and abetting statute is broader than that of the generic definition. See,
e.g., Appellant Br. 9 (“The Minnesota statute has remained unchanged for decades,
but [has been] interpreted by the Minnesota Supreme Court to include a broad swath
of conduct.”). Therefore, “[t]o succeed, [Yackel] must show something special
about [Minnesota’s] version of the [aiding and abetting] doctrine.” Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 191 (2007); see also, e.g., Gammell, 932 F.3d at
1182 (Kobes, J., concurring) (“In [Gonzales, 549 U.S. at 191], when confronted with
a similar argument about the scope of California’s definition of aiding and abetting,
the Supreme Court said that a conviction potentially based on an aiding and abetting
theory would not qualify as a predicate offense under the Immigration and
Nationality Act if a defendant could show that there was ‘something special about
[his state’s] version of [aiding and abetting]—for example, that [his state] in
applying it criminalizes conduct that most other states would not.’” (alterations in
original) (citation omitted)).
Yackel cites State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981), and at first
glance, this case appears to support Yackel’s position. In Ulvinen, the Minnesota
Supreme Court noted that “presence, companionship, and conduct before and after
the offense are circumstances from which a person’s participation in the criminal
intent may be inferred.” Id. (emphasis added). However, upon closer examination,
Ulvinen confirms that a “high level of activity on the part of an aider and abettor in
the form of conduct that encourages another to act” is required by § 609.05. Id. The
Ulvinen court held that there was insufficient evidence to convict the defendant of
first-degree murder (based on an aiding and abetting theory of liability under
§ 609.05) because the defendant was “insulated by statute from guilt as an
accomplice after-the-fact for such conduct because of her relation as a parent of the
offender,” see Minn. Stat. § 609.495, subdiv. 2 (1980), and because her assistance
arose after the murder and “[did] not succeed in transforming her behavior prior to

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the crime to active instigation and encouragement,” Ulvinen, 313 N.W.2d at 428.
Therefore, although some language in Ulvinen, when read alone, appears to support
Yackel’s assertion that liability can arise from mere presence, the case, when read
in its entirety, confirms that aiding and abetting liability can only arise where the
defendant intended to “instigat[e] and encourage[]” the principal. See id. Therefore,
Ulvinen does not support Yackel’s contention that there is something “special” about
Minnesota’s definition of aiding and abetting.
Similarly, the other Minnesota cases to which Yackel cites fail to show that
there is something “special” about the Minnesota courts’ application of § 609.05.
See, e.g., State v. Parker, 164 N.W.2d 633, 641 (Minn. 1969) (“Certainly mere
presence on the part of [the defendant] would be enough if it is intended to and does
aid the primary actors.” (emphasis added)); State v. Ostrem, 535 N.W.2d 916, 925
(Minn. 1995) (finding that the evidence supported aiding and abetting liability
because it showed that the defendant was “present” at the scene and did nothing to
thwart completion of the crime, explaining that “[m]ere presence at the scene of a
crime does not alone prove that a person aided or abetted, because inaction,
knowledge, or passive acquiescence does not rise to the level of criminal
culpability”); State v. Merrill, 428 N.W.2d 361, 368 (Minn. 1988) (finding that a
rational jury could conclude the defendant aided and abetted a murder where the
defendant was “present and actively participating in the aggravated robbery” and
where the defendant had exhibited “anger and earlier violence towards [the
victim]”); see also, e.g., Gammell, 932 F.3d at 1183 (Kobes, J., concurring) (“I read
[Ostrem and Parker] as in line with the federal definition of aiding and abetting.”).2
2 The Merrill court suggested in dicta that under subdivision 2 of § 609.05,
mere presence is sufficient for aiding and abetting liability where a murder was
committed in furtherance of an aggravated robbery and where that murder was a
reasonably foreseeable consequence of that robbery. 428 N.W.2d at 369. However,
the Merrill court did not state—and Yackel fails to mention—that liability under
subdivision 2 of § 609.05 is not possible without liability under subdivision 1—a
provision which expressly requires intent. Compare Minn. Stat. § 609.05, subdiv. 2
(“A person liable under subdivision 1 is also liable for any other crime committed in
pursuance of the intended crime if reasonably foreseeable by [him] . . . .”) with id.,

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Although Yackel is correct that Minnesota courts may infer criminal intent
from presence, some level of “active instigation and encouragement” is also
required. See, e.g., Ulvinen, 313 N.W.2d at 428. Mere presence can, in some
circumstances, give rise to aiding and abetting liability, but this is only possible
where the defendant’s presence “is intended to and does aid the primary actors.”
Parker, 164 N.W.2d at 641. Ultimately, Minnesota courts’ application of § 609.05
is no broader than federal courts’ application of the generic definition: federal courts
require intentionality but contemplate presence as well. We have “acknowledged
that[, for generic aiding and abetting liability,] ‘[m]ere association between the
principal and those accused of aiding and abetting is not sufficient to establish guilt;
nor is mere presence at the scene and knowledge that a crime was to be committed
sufficient to establish aiding and abetting.’” United States v. Ellefson, 419 F.3d 859,
863 (8th Cir. 2005) (second alteration in original) (citation omitted). However,
“criminals rarely welcome innocent persons as witnesses to serious crimes,” id.
(citation omitted), and “[i]n proscribing aiding and abetting, Congress used language
that ‘comprehends all assistance rendered by words, acts, encouragement, support,
or presence,’” Rosemond v. United States, 572 U.S. 65, 73 (2014) (emphasis added)
(citation omitted).3
subdiv. 1 (“A person is criminally liable for a crime committed by another if [he]
intentionally aids, advises, hires, counsels, or conspires with or otherwise procures
the other to commit the crime.” (emphasis added)).
3 To the extent relevant here, Minnesota made clear in 2012 that, to hold
someone criminally liable on an aiding-and-abetting theory, the state must prove that
the defendant “knowingly and intentionally assisted in the commission of a crime,”
further foreclosing any argument that Minnesota’s definition of aiding and abetting
is overbroad. State v. Milton, 821 N.W.2d 789, 805-08 (Minn. 2012) (emphasis
added); see also State v. Bahtuoh, 840 N.W.2d 804, 812 (Minn. 2013).

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Ultimately, we agree with the district court that Yackel’s 1999 conviction for
aiding and abetting second-degree assault qualifies as a “crime of violence” under
the Guidelines.
III.
For the above-stated reasons, we affirm the district court.
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