United States of America v. Kaleb Alan Shannan

United States Court of Appeals
For the Eighth Circuit
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No. 22-2254
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United States of America
Plaintiff - Appellee
v.
Kaleb Alan Shannan
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: March 16, 2023
Filed: May 8, 2023
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Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.
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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 court1 applied an increased base offense level of 24 under
1 The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.

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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.
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

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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, 141 S. Ct. 1817 (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
(2007)).

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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.
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