United States of America v. Marion Joseph Hare

United States Court of Appeals
For the Eighth Circuit
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No. 21-2022
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Marion Joseph Hare,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: April 14, 2022
Filed: August 9, 2022
[Unpublished]
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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Marion Hare pleaded guilty to a drug trafficking offense and a firearms
violation. The district court* calculated an advisory guideline range of 100 to 125
*The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.

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months’ imprisonment, and varied downward to impose a sentence of 94 months.
Hare raises two procedural challenges to his sentence, but we see no error, and
therefore affirm.
In February 2020, an undercover officer purchased 4.03 grams of
methamphetamine from Hare. In a subsequent search of Hare’s bedroom, officers
found two digital scales, a box of plastic sandwich bags, and ammunition. Inside a
backpack in the room, officers recovered a loaded Ruger .380 pistol with an
obliterated serial number.
Hare pleaded guilty to unlawful possession of a firearm as a previously
convicted felon, 18 U.S.C. § 922(g)(1), and distribution of methamphetamine, 21
U.S.C. § 841(a)(1). At sentencing, the district court determined a base offense level
of 20 under the sentencing guidelines. This determination was based in part on the
court’s conclusion that Hare’s prior conviction in Iowa for willful injury causing
bodily injury was a crime of violence under the sentencing guidelines. See Iowa
Code § 708.4(2); USSG § 2K2.1(a)(4)(A). The court applied a four-level increase for
possession of a firearm in connection with another felony offense, because it found
that Hare possessed the Ruger .380 in connection with drug trafficking. See id.
§ 2K2.1(b)(6)(B). After calculating an advisory guideline range of 100 to 125
months’ imprisonment, the court varied downward and imposed sentence of 94
months’ imprisonment on each count to run concurrently.
Hare first argues that his prior conviction for willful injury causing “bodily
injury” under Iowa Code § 708.4(2) is not a crime of violence under the guidelines.
The Iowa statute states: “Any person who does an act which is not justified and
which is intended to cause serious injury to another commits willful injury . . . if the
person causes bodily injury to another.” Iowa Code § 708.4(2). Hare contends that
this offense does not qualify as a crime of violence, because it does not have “as an
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element the use, attempted use, or threatened use of physical force against the person
of another.” USSG § 4B1.2(a)(1).
Shortly after Hare was sentenced, this court held in United States v. Clark, 1
F.4th 632 (8th Cir. 2021), that Iowa Code § 708.4(2) is categorically a “violent
felony” under the “force” clause of the Armed Career Criminal Act. Id. at 636-37.
The relevant text of the ACCA is the same as the text of the guideline defining “crime
of violence,” and there is no reason for a different interpretation. Accordingly, the
district court’s decision accords with our precedent in Clark.
Hare suggests that Borden v. United States, 141 S. Ct. 1817 (2021),
undermined the conclusion in Clark that a violation of the Iowa statute requires the
use of violent force. Clark reasoned that because violent force is force capable of
causing injury, and it is impossible to cause bodily injury without using force capable
of producing that result, a statute requiring proof of bodily injury necessarily requires
the use of violent force. See Clark, 1 F.4th at 637; United States v. Rice, 813 F.3d
704, 706 (8th Cir. 2016) (quoting United States v. Castleman, 572 U.S. 157, 174
(Scalia, J., concurring)). Borden concerned a different issue—the mens rea required
for an act to qualify as the use of force against the person of another. Nothing in
Borden suggests that an offender may cause bodily injury without using violent force,
and that decision does not supersede Clark.
Hare also contends that his Iowa offense does not qualify as a crime of violence
because it encompasses conspiracy or aiding and abetting. See Iowa Code §§ 703.1,
706.1. But the commentary to USSG § 4B1.2 states that a crime of violence includes
the crimes of aiding and abetting or conspiring to commit such an offense, USSG
§ 4B1.2, comment. (n.1), and this court has held that the commentary is a valid
interpretation of the guideline. See, e.g., United States v. Merritt, 934 F.3d 809, 811
(8th Cir. 2019); United States v. Mendoza-Figueroa, 65 F.3d 691, 694 (8th Cir.1995)
(en banc).
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Hare next argues that the district court erred by applying a four-level increase
to his base offense level for possessing a firearm “in connection with another felony
offense.” USSG § 2K2.1(b)(6)(B). The district court found that Hare possessed the
Ruger .380 “in connection with drug trafficking activities,” because the loaded gun
was located in the same room with two digital scales, a box of plastic sandwich
baggies, and ammunition. Where a defendant possesses a firearm in connection with
drug trafficking, a district court properly applies the increase if the firearm is found
“in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.”
Id. comment. (n.14(B)(ii)); see United States v. Cosen, 965 F.3d 929, 931-32 (8th Cir.
2020). The district court thus did not clearly err in finding that Hare possessed the
firearm “in connection with” his drug trafficking offense.
The judgment of the district court is affirmed.
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