United States of America v. Anthony Wings

United States Court of Appeals
For the Eighth Circuit
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No. 23-2866
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Anthony Wings,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: May 6, 2024
Filed: July 3, 2024
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Before COLLOTON, Chief Judge, SHEPHERD and STRAS, Circuit Judges.
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COLLOTON, Chief Judge.
Anthony Wings pleaded guilty to unlawfully possessing a firearm and
ammunition as a felon. See 18 U.S.C. § 922(g)(1). At sentencing, the district court*
determined that Wings’s base offense level was twenty because he had sustained a
*The Honorable Stephen R. Clark, Chief Judge, United States District Court
for the Eastern District of Missouri.

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prior felony conviction for a crime of violence. See USSG § 2K2.1(a)(4)(A). But for
the prior felony determination, the advisory guideline range would have been lower.
Wings contends on appeal that the record did not establish that his prior offense of
conviction constituted a crime of violence.
The presentence report stated that Wings sustained a Missouri conviction for
felony second-degree domestic assault in 2011, and recommended a base offense
level of twenty. In describing Wings’s prior offense, the report said that “[a]ccording
to court records, on May 31, 2011, Wings attempted to cause physical injury to D.G.
by choking her.” Wings did not object. The government did not present additional
evidence. The district court adopted the report.
Because Wings did not object to the prior felony determination, we review only
for plain error. Fed. R. Crim. P. 52(b). To obtain relief, Wings must show an obvious
error that affected his substantial rights and seriously affected the fairness, integrity,
or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725,
732-35 (1993).
Wings argues that the district court obviously erred by relying on the
presentence report’s reference to allegations in “court records,” because the report did
not specify that the records were the type on which a court may rely in determining
whether the prior conviction satisfies the relevant definition. See Shepard v. United
States, 544 U.S. 13, 16 (2005); cf. United States v. Shockley, 816 F.3d 1058, 1063
(8th Cir. 2016). But even assuming such an error for the sake of analysis, we
conclude that a remand is not warranted.
The government moves this court to take judicial notice of the charging
document, guilty plea, and state-court judgment that establish Wings’s domestic-
assault conviction. We may take judicial notice of any fact that “can be accurately
and readily determined from sources whose accuracy cannot reasonably be
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questioned,” see Fed. R. Evid. 201(b)(2), “as long as it is not unfair to a party to do
so and does not undermine the trial court’s factfinding authority.” United States v.
Jones, 574 F.3d 546, 551 n.2 (8th Cir. 2009) (internal quotation omitted). We have
taken judicial notice in similar cases involving uncontested allegations in the
presentence report, e.g., id. at 551; United States v. Allen, 804 F. App’x 425, 425 (8th
Cir. 2020), and we conclude that the same course is appropriate here. Wings does not
dispute the authenticity of the proffered documents, and we discern no reason to
doubt their accuracy. “[I]t would be pointless to remand the case simply to have the
District Court take notice of that which we may notice ourselves.” Jones, 574 F.3d
at 551 n.3 (internal quotation omitted).
An offense constitutes a crime of violence under the applicable sentencing
guideline if it “has as an element the use, attempted use, or threatened use of physical
force against the person of another.” USSG § 2K2.1(a)(4)(A), comment. (n.1); id.
§ 4B1.2(a)(1). We apply a categorical approach that examines only the elements of
the offense to determine whether they necessarily include the requisite use, attempted
use, or threatened use of force. United States v. Brown, 73 F.4th 1011, 1014 (8th Cir.
2023). Where a statute creates multiple offenses by listing elements in the alternative,
we may look to a “limited class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy)” to determine the offense of conviction.
Mathis v. United States, 579 U.S. 500, 505 (2016).
Wings’s prior offense was a crime of violence under USSG § 2K2.1. At the
time of Wings’s offense, the Missouri second-degree domestic assault statute was
divisible. See United States v. Doyal, 894 F.3d 974, 976 (8th Cir. 2018). One
alternative offense required an attempted or knowing causation of physical injury,
Mo. Rev. Stat. § 565.073.1(1) (2001), and this alternative satisfied the force clause.
United States v. Scott, 818 F.3d 424, 435 (8th Cir. 2016). Like the presentence report,
the ultimate charging document states that Wings “attempted to cause physical injury
to [D.G.] by choking her,” and he pleaded guilty to the charged offense. The relevant
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judicial records thus establish that Wings committed an offense that qualifies as a
crime of violence under the force clause.
For these reasons, we conclude that the district court correctly determined
Wings’s base offense level under USSG § 2K2.1(a)(4)(A). The judgment of the
district court is affirmed. The motion to take judicial notice is granted. The
alternative motion to supplement the record is denied as moot.
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