United States of America v. Johnathan Brown

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2308
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Johnathan Brown,
lllllllllllllllllllllDefendant - Appellant.
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: March 13, 2023
Filed: July 21, 2023
____________
Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
____________
COLLOTON, Circuit Judge.
Johnathan Brown pleaded guilty to a firearms offense. The district court*
sentenced Brown to sixty months’ imprisonment. Brown argues that the district court
*The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.

-- 1 of 6 --

committed procedural error by miscalculating his base offense level under the
sentencing guidelines. We conclude that the court did not err, and therefore affirm
the judgment.
In March 2019, St. Louis police officers attempted to initiate a traffic stop after
observing a vehicle run through a stop sign. The vehicle led the officers on a high-
speed chase through St. Louis, but eventually stopped in a residential neighborhood.
Brown and another man exited the vehicle and fled on foot.
The officers found Brown hiding in a nearby residence. A witness saw Brown
drop an object into a trash can while he was running away. The officers searched the
trash can and retrieved a firearm. Before this incident, in 2013, Brown had sustained
a felony conviction in Missouri for resisting arrest. See Mo. Rev. Stat. § 575.150
(amended 2017).
Brown pleaded guilty to unlawful possession of a firearm as a previously
convicted felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). At sentencing, the district
court determined a base offense level of twenty under the sentencing guidelines. The
determination turned on the court’s conclusion that Brown’s prior conviction for
resisting arrest by using or threatening the use of force was a “crime of violence.”
See Mo. Rev. Stat. § 575.150.1(1); USSG § 2K2.1(a)(4)(A). Based on a total offense
level of twenty, and a criminal history category VI, the court calculated an advisory
guideline range of seventy to eighty-seven months’ imprisonment. The court varied
downward from the advisory range, and imposed a sentence of sixty months to be
followed by three years of supervised release.
The guidelines set a base offense level of twenty if “the defendant committed
any part of the instant offense subsequent to sustaining one felony conviction of . . .
a crime of violence.” USSG § 2K2.1(a)(4)(A). The guidelines define “crime of
violence” in the so-called “force clause” as “any offense under federal or state law,
-2-

-- 2 of 6 --

punishable by imprisonment for a term exceeding one year, that has as an element the
use, attempted use, or threatened use of physical force against the person of another.”
USSG § 4B1.2(a)(1).
To determine whether a past conviction qualifies as a “crime of violence,” we
are required to apply the “categorical approach,” which compares the elements of the
offense of conviction with the requirements under USSG § 4B1.2(a)(1). United
States v. Harper, 869 F.3d 624, 625 (8th Cir. 2017). If the statute covers more
conduct than the definition of a crime of violence, and lists alternative methods of
committing the crime, then we must determine whether the listed alternatives are
elements or means. Mathis v. United States, 579 U.S. 500, 517 (2016). If the
statutory alternatives are multiple means of committing a single offense, the statute
is indivisible, and we apply the categorical approach. Id. at 504-05. If, however, the
statute sets forth alternative elements that define multiple offenses, the statute is
divisible, and we apply the “modified categorical approach” to determine which
alternative was the offense of conviction. Id. at 513.
Under Brown’s statute of conviction in Missouri, a person commits the offense
of resisting arrest if he “[r]esists the arrest, stop or detention of [a law enforcement
officer] by using or threatening the use of violence or physical force or by fleeing
from such officer.” Mo. Rev. Stat. § 575.150.1(1).
Before the Supreme Court’s decision in Mathis, this court concluded that Mo.
Rev. Stat. § 575.150.1(1) is divisible and lists multiple offenses: (1) resisting arrest
by use or threatened use of force and (2) resisting arrest by fleeing from an officer.
United States v. Shockley, 816 F.3d 1058, 1063 (8th Cir. 2016). Our decisions
concluded that resisting arrest by using or threatening the use of force is a “violent
felony” under the Armed Career Criminal Act, see id., but that resisting arrest by
fleeing is not a “crime of violence” under the sentencing guidelines. United States
v. Robinson, 826 F.3d 1044, 1045 (8th Cir. 2016). Because the definition of crime
-3-

-- 3 of 6 --

of violence under the guidelines is identical in relevant respects to the definition of
violent felony under the ACCA, it follows that resisting arrest by using or threatening
the use of force under Mo. Rev. Stat. § 575.150.1(1) is a crime of violence under the
guidelines. See United States v. Ramey, 880 F.3d 447, 449 (8th Cir. 2018).
Brown suggests that we should reconsider our precedent in light of Mathis, and
conclude that the Missouri statute is indivisible. He contends that “using or
threatening the use of violence or physical force” and “fleeing” are alternative means
of committing a single offense of resisting arrest. Brown then asserts that because
resisting arrest by “fleeing” does not require the use, attempted use, or threatened use
of force, the offense of resisting arrest categorically is not a crime of violence. On
that basis, he argues that the district court erred when it calculated his base offense
level.
To determine whether Mo. Rev. Stat. § 575.150.1(1) is divisible into multiple
offenses, we consider authoritative sources of state law: statutory text, Missouri court
decisions, and approved jury instructions. Mathis, 579 U.S. at 518-19. In this case,
Missouri court decisions and approved jury instructions are most informative.
Missouri courts have concluded that “the appropriate unit of prosecution for
the crime of resisting arrest is the substantive act of undertaking a resistance to the
arrest.” Stuart v. State, 565 S.W.3d 766, 774 (Mo. Ct. App. 2019). Therefore, an
offender who resists arrest and engages in both acts listed in the statute—(1) using
or threatening the use of violence or physical force, and (2) fleeing the officer
attempting the stop—may be convicted of multiple offenses, even if the offenses arise
from the same nucleus of operative facts. State v. Pitiya, 623 S.W.3d 217, 222 (Mo.
Ct. App. 2021).
That each enumerated act of resistance establishes a different unit of
prosecution is persuasive evidence that each act is an element of the offense. Rendon
-4-

-- 4 of 6 --

v. Barr, 952 F.3d 963, 969 (8th Cir. 2020); Martinez v. Sessions, 893 F.3d 1067, 1071
(8th Cir. 2018). A defendant cannot be convicted and sentenced for two offenses
with identical elements arising from the same facts. United States v. Dixon, 509 U.S.
688, 696 (1993). Except for the substantive act that constitutes resistance, the
elements of resisting arrest in Missouri are the same. Thus, by concluding that an
offender may be prosecuted twice for resisting arrest if he engaged in both acts of
resistance, the Missouri decisions implicitly inform us that the act of resistance is an
element of the offense. See Rincon v. Garland, 70 F.4th 1080, 1084-85 (8th Cir.
2023).
Missouri’s approved jury instructions reinforce this conclusion. The
instructions, which are approved by the Supreme Court of Missouri, are
“presumptively valid” and must be used at trial. State v. Zink, 181 S.W.3d 66, 74
(Mo. 2005); Mo. Sup. Ct. R. 28.01. When jury instructions require a prosecutor to
prove one statutory alternative to the exclusion of others, each listed alternative is
likely an element of the offense. Mathis, 579 U.S. at 519. Here, the approved
instructions separate the offense of resisting arrest into two distinct sets of
instruction: one for “resisting arrest by flight,” and a second for “resisting arrest by
force.” MAI-CR 329.60 (3d ed. Jan. 1, 2007).
The first three elements of each instruction track the language of the statute.
They require the State to prove that a law enforcement officer was making an arrest
of the defendant and that the defendant knew the officer was affecting an arrest. Id.
The fourth element of each instruction is different. For “resisting arrest by flight,”
the fourth element requires the State to prove that the defendant resisted arrest by
fleeing from the officer. MAI-CR 329.60.1. For “resisting arrest by force,” the fourth
element requires proof that the defendant resisted by using or threatening the use of
physical force. MAI-CR 329.60.2. Missouri’s approved jury instructions thus
indicate that Mo. Rev. Stat. § 575.150.1(1) contains multiple possible offenses with
distinct elements.
-5-

-- 5 of 6 --

For these reasons, we conclude that Mo. Rev. Stat. § 575.150.1(1) is divisible
into multiple offenses. We therefore apply the modified categorical approach to
determine the alternative under which Brown was convicted. According to the
charging document and judgment in Brown’s Missouri criminal case, he pleaded
guilty to resisting arrest “by using or threatening the use of violence or physical
force.” Therefore, Brown’s prior conviction was for a crime of violence under the
sentencing guidelines. See Shockley, 816 F.3d at 1063. The district court did not err
in determining Brown’s base offense level under USSG § 2K2.1(a)(4)(A).
The judgment of the district court is affirmed.
______________________________
-6-

-- 6 of 6 --