United States of America v. Clarence J. Harris

United States Court of Appeals
For the Eighth Circuit
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No. 22-1475
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United States of America
Plaintiff - Appellee
v.
Clarence J. Harris
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: December 16, 2022
Filed: February 21, 2023
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Before SMITH, Chief Judge, GRUENDER and STRAS, Circuit Judges.
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GRUENDER, Circuit Judge.
Clarence Harris pleaded guilty to possession of a firearm by a felon in
violation of 18 U.S.C § 922(g)(1) pursuant to a written plea agreement. He later
moved to withdraw his guilty plea when the probation office determined that he had
three or more prior convictions “for a violent felony or a serious drug offense,”
which qualified him for a mandatory minimum sentence of 15 years’ imprisonment
under the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e). At

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sentencing, the district court1 denied Harris’s motion, reasoning that the plea
agreement expressly stated that Harris may be subject to a mandatory minimum
sentence under the ACCA and that this would not be grounds for withdrawal of his
plea. The district court then concluded that Harris’s prior convictions indeed
qualified him for a 15-year sentence under the ACCA and sentenced him
accordingly. On appeal, Harris argues that the district court erred by not allowing
him to withdraw his guilty plea and by finding that his criminal history included
three ACCA predicate offenses. We affirm.
I.
On July 24, 2019, Harris, a convicted felon, was driving a car in St. Louis,
Missouri. After police officers saw him fail to stop at a stop sign, they activated
their lights and sirens and attempted to pull his car over. Harris pulled over, but
when officers got out of their patrol vehicles to approach him, he sped off. A car
chase ensued during which Harris swerved in and out of oncoming traffic and drove
through red lights. Before long, Harris lost control of his car, and the car chase
became a foot chase. Officers eventually subdued him with a Taser and placed him
under arrest. A search of his car revealed two loaded handguns on the floorboard of
the front passenger seat.
Harris was indicted for possession of a firearm by a felon under 18 U.S.C.
§ 922(g)(1). He pleaded guilty. The plea agreement stated that the Government had
independently investigated whether Harris qualified as an armed career criminal
under 18 U.S.C. § 924(e) and that neither it nor Harris believed that he was. But the
agreement also stated that Harris may be subject to a mandatory minimum sentence
of 15 years’ imprisonment if the district court concluded that he was an armed career
criminal. Indeed, it provided that Harris “is pleading guilty with full knowledge of
th[is] possibilit[y],” that he had “discussed th[is] possibilit[y] with counsel,” and that
1 The Honorable Stephen N. Limbaugh, Jr., United States District Judge for
the Eastern District of Missouri.

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he would “not be able to withdraw the guilty plea if the Court determines the
[ACCA] applies.” During Harris’s plea hearing, the district court reviewed these
provisions with Harris in depth, explaining, “if it is determined that you are an armed
career criminal . . . then you’re going to have a higher Total Offense Level” and
“we’re not going to know that until after we determine exactly what your criminal
record is after completing the presentence report.” Harris confirmed that he
understood and that he had discussed such possibility with his lawyer. The district
court then accepted Harris’s plea agreement.
Prior to sentencing, the probation office issued a final presentence
investigation report (“PSR”), which determined that three of Harris’s prior Missouri
convictions—two for discharging a weapon at or from a motor vehicle in violation
of Mo. Rev. Stat. § 571.030.1(9) and one for resisting felony arrest—were predicate
violent felonies under the ACCA. Harris objected. He conceded that his resisting-
arrest conviction and his first unlawful-discharge conviction were ACCA predicates,
but he insisted that his second unlawful-discharge conviction was not. Harris then
moved to withdraw his guilty plea, claiming that the Government’s assurance that
he was not ACCA-eligible had improperly induced him to plead guilty. The district
court denied his motion and explained that Harris’s argument was contradicted by
the plain terms of the plea agreement and by Harris’s own representations at his plea
hearing.
At sentencing, the district court concluded that Harris’s second unlawful-
discharge conviction was a proper ACCA predicate and that Harris therefore
qualified for a 15-year mandatory minimum sentence. The court then sentenced
Harris to 180 months’ imprisonment, the statutory minimum.
II.
We begin with Harris’s argument that the district court should have permitted
him to withdraw his guilty plea. A defendant may withdraw a guilty plea after the
court accepts the plea but before it imposes a sentence where he shows a “fair and

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just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We review
the denial of a motion to withdraw a guilty plea for an abuse of discretion. United
States v. Seys, 27 F.4th 606, 610 (8th Cir. 2022).
Harris argues that the PSR’s conclusion that he qualified as an armed career
criminal is a “fair and just reason for requesting the withdrawal” because his guilty
plea was induced by the Government’s representation that it did not believe him to
be ACCA-eligible. We disagree. Harris’s plea agreement expressly contemplated
the possibility that the district court might determine him to qualify for an ACCA
mandatory minimum sentence, and it made clear that this would not create grounds
for withdrawal. The district court reviewed these provisions of the plea agreement
with Harris during his plea hearing, emphasizing, “if it is determined that you are an
armed career criminal . . . then you’re going to have a higher Total Offense Level”
and “we’re not going to know that until after we determine exactly what your
criminal record is after completing the presentence report.” The district court also
reiterated that if it turned out that Harris qualified as an armed career criminal, he
would be subject to a 15-year minimum sentence. Harris unequivocally indicated
that he understood this possibility, that he had discussed it with his lawyer, and that
he wished to plead guilty anyway. Given these circumstances, we agree with the
district court that Harris failed to show any “fair and just reason for requesting the
withdrawal.” Cf. United States v. Reed, 39 F.4th 1285, 1291, 1293-94 (10th Cir.
2022) (holding that a defendant was not prejudiced by pleading guilty on the
erroneous advice of counsel that he was unlikely to be an armed career criminal
where the defendant was informed in both the plea agreement and plea colloquy
“that he was potentially subject to ACCA and a mandatory minimum 15 years’
imprisonment”). Accordingly, the district court did not abuse its discretion in
denying Harris’s motion to withdraw his guilty plea.
III.
Next, we address the district court’s determination that Harris qualified as an
armed career criminal. Harris contends that this determination was erroneous

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because his second unlawful-discharge conviction under Mo. Rev. Stat.
§ 571.030.1(9) is not a violent felony under the ACCA. Our review is de novo.
United States v. Clark, 1 F.4th 632, 634 (8th Cir. 2021).
Under the ACCA, a defendant who is convicted of an offense under § 922(g)
and has at least three prior convictions “for a violent felony or a serious drug offense,
or both” is subject to a mandatory minimum sentence of at least 15 years’
imprisonment. § 924(e)(1). The ACCA defines a violent felony as “any crime
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.” § 924(e)(2)(B)(i). “Physical force ‘means violent force—that is, force
capable of causing physical pain or injury to another person.’” United States v.
Schaffer, 818 F.3d 796, 798 (8th Cir. 2016) (quoting Johnson v. United States, 559
U.S. 133, 140 (2010)). Thus, to find that Harris’s second unlawful-discharge
conviction is an ACCA predicate, we must determine that Mo. Rev. Stat.
§ 571.030.1(9) contains as an element the use, attempted use, or threatened use of
force capable of causing pain or injury to another.
Section 571.030.1(9) provides:
A person commits the offense of unlawful use of weapons, . . . if he or
she knowingly . . . [d]ischarges or shoots a firearm at or from a motor
vehicle, as defined in section 301.010, discharges or shoots a firearm at
any person, or at any other motor vehicle, or at any building or habitable
structure, unless the person was lawfully acting in self-defense . . . .
Harris concedes that § 571.030.1(9) is divisible, meaning that it “lists elements in
the alternative, and thereby defines multiple crimes.” See United States v. Libby,
880 F.3d 1011, 1014 (8th Cir. 2018) (brackets omitted). We therefore assume,
without deciding, that it is divisible and includes four offenses: (1) shooting at
vehicles; (2) shooting at persons from vehicles; (3) shooting at buildings from
vehicles; and (4) shooting at vehicles from vehicles. See State v. Barraza, 238
S.W.3d 187, 191-92 (Mo. Ct. App. 2007) (“Although perhaps not a model of

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draftsmanship, [§ 571.030.1(9)] prohibits shooting at a motor vehicle, from a motor
vehicle at any other person, building or habitable structure, or from one vehicle at
another vehicle.”).
When faced with a divisible statute, we employ the modified categorical
approach. Libby, 880 F.3d at 1014. Under this approach, we perform “a constrained
inspection of a limited class of documents” including, as applicable, the indictment,
jury instructions, plea agreement, and colloquy, to discover “what crime, with what
elements, a defendant was convicted of.” See id. (internal quotation marks omitted)
(citing Shepard v. United States, 544 U.S. 13, 26 (2005)); United States v. Irons, 849
F.3d 743, 746 (8th Cir. 2017) (“The modified categorical approach is used to
determine which statutory phrase, contained within a statute listing several different
crimes, covers a prior conviction.” (brackets and internal quotation marks omitted)).
If the specific offense within § 571.030.1(9) for which Harris was convicted has a
physical-force element, i.e., if there is no “non-fanciful, non-theoretical manner to
commit the offense without so much as the threatened use of physical force,” then
his conviction qualifies as an ACCA predicate. See United States v. Hamilton, 46
F.4th 864, 868 (8th Cir. 2022) (brackets omitted).
We therefore consult the indictment to which Harris pleaded guilty. It states:
The Grand Jurors of the City of St. Louis, State of Missouri, charge that
the defendant . . . committed the class B felony of unlawful use of a
weapon, punishable upon conviction under . . . [§] 571.030.9, . . . in that
on 10/29/04, in the City of St. Louis, State of Missouri, the defendant,
while within the city limits of the City of St. Louis knowingly shot a
firearm from a Red Ford Explorer, a motor vehicle, at other persons.
(emphasis added).
This language makes clear that Harris pleaded guilty to the § 571.030.1(9) offense
of shooting at other persons from a motor vehicle. See Barraza, 238 S.W.3d at 191-
92. The final step, then, is to determine whether this offense has a physical-force
element. We conclude that it does because there is no “non-fanciful, non-theoretical

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manner” to knowingly shoot at other persons from a motor vehicle “without so much
as the threatened use of physical force.” See Hamilton, 46 F.4th at 868; see also
United States v. Fogg, 836 F.3d 951, 956 (8th Cir. 2016) (holding that a Minnesota
conviction for recklessly shooting a firearm “at or toward a person” had a physical
force-element under the ACCA).2 Accordingly, the district court did not err in
concluding that Harris qualified for a mandatory minimum of 15 years’
imprisonment under the ACCA.
IV.
For the foregoing reasons, we affirm.
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2 Although the Supreme Court has since abrogated Fogg by holding that
offenses resulting from merely reckless conduct are not violent felonies under the
ACCA, Borden v. United States, 593 U.S. ---, 141 S. Ct. 1817, 1821-22 (2021),
Harris pleaded guilty to knowingly shooting at other persons from a motor vehicle,
which easily satisfies the ACCA’s physical-force requirement, see id. at 1826-27.

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