United States of America v. Seth Grant Huntington

United States Court of Appeals
For the Eighth Circuit
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No. 21-3399
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United States of America
Plaintiff - Appellee
v.
Seth Grant Huntington
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: May 9, 2022
Filed: August 12, 2022
[Published]
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Before STRAS, MELLOY, and KOBES, Circuit Judges.
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PER CURIAM.
Seth Huntington pleaded guilty to possessing a firearm as a felon. 18 U.S.C.
§ 922(g)(1). The district court1 imposed a fifteen-year mandatory-minimum
sentence under the Armed Career Criminal Act after concluding that Huntington had
1 The Honorable Eric C. Tostrud, United States District Judge for the District
of Minnesota.

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three prior “violent felon[ies]”: two for third-degree assault, Minn. Stat. § 609.223,
subdiv. 1; and another for first-degree burglary with assault, Minn. Stat. § 609.582,
subdiv. 1(c). 18 U.S.C. § 924(e)(1). Although Huntington claims that none of these
convictions were “violent felon[ies],” we affirm. Id.
There are two ways for a prior conviction to count. One is through the
“enumerated-offenses clause,” which lists offenses that qualify. See United States
v. Schneider, 905 F.3d 1088, 1090 (8th Cir. 2018). The other is if the offense “has
as an element the use, attempted use, or threatened use of physical force against the
person of another,” otherwise known as the “force clause.” 18 U.S.C.
§ 924(e)(2)(B)(i); Schneider, 905 F.3d at 1090.
As Huntington acknowledges, we have already held that Minnesota’s
definition of “assault” satisfies the force clause. See Minn. Stat. § 609.02, subdiv.
10 (defining “assault”); United States v. Lindsey, 827 F.3d 733, 739–40 (8th Cir.
2016) (holding that Minnesota second-degree assault qualifies as a “violent felony”
because it has “assault” as an element). Third-degree assault uses this definition,
Minn. Stat. § 609.223, subdiv. 1, so it qualifies as a violent felony. See United States
v. Wadena, 895 F.3d 1075, 1076 (8th Cir. 2018) (per curiam) (holding that third-
degree assault uses “the definition of ‘assault’ . . . derived from Minn. Stat. § 609.02,
subdiv. 10,” so it is a “violent felony”). Two down, one to go.
Huntington’s final conviction was for first-degree burglary, which is a
“divisible” crime. See United States v. Fisher, 25 F.4th 1080, 1084, 1086 (8th Cir.
2022) (defining a “divisible” crime as one involving “multiple, alternative versions”
(quotation marks omitted)). The particular version he committed was first-degree
burglary with assault, which as the name suggests, required him to commit an assault
during the course of a burglary. Minn. Stat. § 609.582, subdiv. 1(c) (requiring that
“the burglar assault[] a person”); id. § 609.02, subdiv. 10 (defining “assault”). This
crime uses the same definition of “assault” as the others, which means it is a “violent
felony” too. See Wadena, 895 F.3d at 1076; Lindsey, 827 F.3d at 740; see also
Fisher, 25 F.4th at 1083, 1086 (holding that third-degree burglary with assault “has

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as an element the use, attempted use, or threatened use of physical force against the
person of another” (quoting 18 U.S.C. § 3559(c)(2)(F))).
Huntington has two responses, but neither is persuasive. The first is based on
Borden v. United States, 141 S. Ct. 1817 (2021), which held that the force clause
“categorically excludes crimes that can be committed recklessly.” United States v.
Hoxworth, 11 F.4th 693, 695 (8th Cir. 2021) (emphasis added) (citing Borden, 141
S. Ct. at 1834 (plurality opinion); id. at 1835 (Thomas, J., concurring in the
judgment)). Huntington’s argument is ambitious: he argues that Borden suggests
that an assault can never qualify as a violent felony. Though ambitious, it is also
wrong. In Minnesota, assault requires intentional conduct, and Borden only
“excludes crimes that can be committed recklessly.” Hoxworth, 11 F.4th at 695;
Minn. Stat. § 609.02, subdiv. 10 (defining “assault” as “an act done with intent to
cause fear in another of immediate bodily harm or death” or “the intentional
infliction or attempt to inflict bodily harm upon another” (emphases added)).
Huntington fares no better with his other argument. Seizing on the fact that
an assault can occur with only the “slightest offensive touching” in Minnesota, State
v. Dorn, 887 N.W.2d 826, 831–32 (Minn. 2016), he argues that it can be committed
without “violent force—that is, force capable of causing physical pain or injury to
another person,” Johnson v. United States, 559 U.S. 133, 140 (2010) (emphasis
omitted); see also Schneider, 905 F.3d at 1091 (explaining that “we analyze the legal
definition of [Huntington’s] crime, not his actual acts” and “ask whether only
conduct involving physical force can satisfy [it]”). Under this reasoning, assault
would not necessarily require “the use of physical force against another,” making it
a categorical mismatch with the force clause. 18 U.S.C. § 924(e)(2)(B)(i).
Huntington’s analysis, however, fails to take into account the statutory
requirement that any assault must also “intentional[ly] inflict[] . . . bodily harm” or
“inten[d] to cause fear . . . of immediate bodily harm or death.” Minn. Stat.
§ 609.02, subdiv. 10 (emphases added). So even if a slight “offensive touching” on
its own would not necessarily involve physical force, it will if the touching is

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intended to inflict bodily harm or cause another to fear it. Compare Minn. Stat.
§ 609.02, subdiv. 7 (defining “bodily harm” as “physical pain or injury” (emphasis
added)), with Johnson, 559 U.S. at 140 (explaining that “violent force” is “force
capable of causing physical pain or injury to another” (emphases added and
omitted)).
We accordingly affirm the judgment of the district court.
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