United States of America v. Jeremy D. Burnett

United States Court of Appeals
For the Eighth Circuit
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No. 21-2159
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jeremy D. Burnett
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: April 14, 2022
Filed: June 3, 2022
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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
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MELLOY, Circuit Judge.
Defendant Jeremy D. Burnett pleaded guilty to being a felon in possession of
a firearm and received a statutory-maximum ten-year sentence. In imposing this

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sentence, the district court1 varied upwardly from an advisory Guidelines range of
51–63 months. Mr. Burnett’s Guidelines range resulted from a base offense level
calculated pursuant to U.S.S.G. § 2K2.1(a)(4) that treated a prior felony assault
conviction under Arkansas Code Annotated § 5-13-204 as a crime of violence. See
U.S.S.G. § 4B1.2(a).
Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
arguing substantive unreasonableness and requesting to withdraw from
representation. A panel of our court denied counsel’s request and ordered briefing
as to whether the prior Arkansas assault conviction qualified as a crime of violence.
Having considered the issues raised by counsel and our prior panel, and having
independently examined the record pursuant to Penson v. Ohio, 488 U.S. 75, 82–83
(1988), we affirm the judgment of the district court.
The Arkansas statute in effect at the time of Mr. Burnett’s prior conviction
provided:
(a) A person commits aggravated assault if, under circumstances
manifesting extreme indifference to the value of human life, he or she
purposely:
(1) Engages in conduct that creates a substantial danger of death
or serious physical injury to another person;
(2) Displays a firearm in such a manner that creates a substantial
danger of death or serious physical injury to another person; or
(3) Impedes or prevents the respiration of another person or the
circulation of another person’s blood by applying pressure on the
throat or neck or by blocking the nose or mouth of the other
person.
1The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
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Ark. Code. Ann. § 5-13-204 (2009). We previously recognized section 5-13-204 as
a divisible statute with discrete subdivisions. See United States v. Jordan, 812 F.3d
1183, 1186–87 (8th Cir. 2016) (holding that Ark. Code. Ann. § 5-13-204(a)(1) does
not qualify as a violent felony under 18 U.S.C. § 924(e)(2)(B)(i) because it does not
have as an element the use or threatened use of physical force); see also United States
v. Hataway, 933 F.3d 940, 945 (8th Cir. 2019) (addressing the firearm subdivision,
Ark. Code. Ann. § 5-13-204(a)(2), and holding, “We agree with the district court that
a prior conviction under subsection (a)(2) is, categorically, a violent felony under the
ACCA force clause and a crime of violence under the guidelines force clause.”).
Here, a state court charging document tendered without objection clarifies that Mr.
Burnett was charged under subdivision (a)(3).
Although we have not previously addressed the third subdivision, we have held
that an Arkansas statute with nearly identical language qualifies as a violent felony
under 18 U.S.C. § 924(e)(2)(B)(i). See United States v. Pyles, 888 F.3d 1320, 1322
(8th Cir. 2018) (interpreting Ark. Code. Ann. § 5-26-306(a)(3) (domestic abuse
strangulation)); see also United States v. Parrow, 844 F.3d 801, 803 (8th Cir. 2016)
(domestic abuse strangulation under Iowa law qualifies as a crime of violence for the
purpose of U.S.S.G. § 2K2.1(a)(4)(A)). As in these similar cases, we conclude the
Arkansas assault-by-suffocation-or-strangulation statute qualifies as a crime of
violence.
Regarding substantive reasonableness and application of the 18 U.S.C.
§ 3553(a) factors, we find no abuse of discretion. See United States v. Ross, 29 F.4th
1003, 1008 (8th Cir. 2022) (standard of review). Here, the district court permissibly
placed substantial emphasis on Mr. Burnett’s criminal history, noting that he had
amassed more than twice the number of criminal history points necessary to place him
in a criminal history category VI.
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Finally, Mr. Burnett submitted several pro se letters to our court alleging
ineffectiveness of counsel and otherwise raising issues not preserved below. We do
not address the issues Mr. Burnett raises in his letters at this time because we lack a
proper record concerning performance of counsel. A motion for collateral relief
pursuant to 28 U.S.C. § 2255 is the proper vehicle for asserting claims regarding
performance of counsel and developing an appropriate record. See United States v.
Oliver, 950 F.3d 556, 566 (8th Cir. 2020) (noting that review of ineffective-assistance
claims on direct appeal is appropriate only in narrow circumstances).
We affirm the judgment of the district court.
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