United States of America v. Jaryous Cooper

United States Court of Appeals
For the Eighth Circuit
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No. 22-2816
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United States of America
Plaintiff - Appellee
v.
Jaryous Cooper
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Eastern
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Submitted: June 12, 2023
Filed: November 7, 2023
[Unpublished]
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Before GRUENDER, ARNOLD, and KELLY, Circuit Judges.
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PER CURIAM.
Jaryous Cooper pleaded guilty to one count of possession of a firearm by a
felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1
sentenced him to 120 months’ imprisonment, to be followed by 3 years’ supervised
1 The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.

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release. Cooper appeals, challenging the calculation of his offense level under the
United States Sentencing Guidelines (USSG) and the substantive reasonableness of
his sentence. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
On March 6, 2021, Cooper was driving in Waterloo, Iowa, when law
enforcement initiated a traffic stop of his vehicle. Cooper pulled over but did not put
the vehicle in park. As the officer approached, Cooper drove away. The officer
returned to his squad car, activated his emergency lights and siren, and pursued
Cooper through the city in a high-speed chase. At some point during the pursuit,
Cooper tossed a loaded firearm out of his car window. Cooper eventually crashed
into a tree, fled on foot, and was apprehended a short time later. Officers found the
firearm along the route. Cooper later admitted this firearm was the gun he threw
from his vehicle during the pursuit.
Cooper pleaded guilty. At sentencing, the district court calculated his base
offense level to be 26, in part because it found Cooper had previously sustained at
least two prior felony convictions for either a crime of violence or a controlled
substance offense. See USSG § 2K2.1(a)(1) (2021). As relevant on appeal, the court
also imposed a four-level enhancement for Cooper’s possession of 8 to 24 firearms.
USSG § 2K2.1(b)(1)(B). With a total offense level 33 and a criminal history
category IV, Cooper’s advisory Guidelines range was 188 to 235 months of
imprisonment, which was lowered to 120 months because the statutory maximum
sentence was 10 years.
II.
On appeal, Cooper contends that the district court erred in calculating his base
offense level. Because Cooper did not object to this calculation at sentencing, we
review his argument for plain error. See United States v. Price, 851 F.3d 824, 826
(8th Cir. 2017) (per curiam). On plain error review, Cooper “must show (1) an error,

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(2) that is plain, and (3) that affects his substantial rights.” United States v. Coleman,
961 F.3d 1024, 1027 (8th Cir. 2020) (citing United States v. Olano, 507 U.S. 725,
732 (1993)). “We will exercise our discretion to correct such an error only if it
‘seriously affects the fairness, integrity or public reputation of judicial
proceedings.’” Id. (quoting Olano, 507 U.S. at 736).
Cooper alleges two errors in the calculation of his base offense level. First, he
argues that his 2019 conviction for felony Possession of Marijuana with Intent to
Distribute, in violation of Iowa Code § 124.401(1)(d) (2019), does not qualify as a
controlled substance offense for purposes of § 2K2.1(a)(1) because the Iowa statute
is overbroad. He concedes, however, that this argument is foreclosed by our
precedent. See United States v. Bailey, 37 F.4th 467, 470 (8th Cir. 2022) (per
curiam), cert. denied, 143 S. Ct. 2437 (2023) (concluding the defendant’s “prior
marijuana convictions under the hemp-inclusive version of Iowa Code
§ 124.401(1)(d) categorically qualified as controlled substance offenses” (quoting
United States v. Jackson, No. 20-3684, 2022 WL 303231 (8th Cir. Feb. 2, 2022) (per
curiam))). The district court did not err in finding Cooper’s prior marijuana
conviction was a qualifying offense under § 2K2.1(a)(1).
Second, Cooper argues that his prior conviction for Intimidation with a
Dangerous Weapon, in violation of Iowa Code § 708.6 (2018),2 does not qualify as
a crime of violence for purposes of § 2K2.1(a)(1). “[A] state felony conviction
qualifies as a ‘crime of violence’ if it ‘has as an element the use, attempted use, or
threatened use of physical force against the person of another.’” United States v.
Frazier, 48 F.4th 884, 885 (8th Cir. 2022) (quoting USSG §§ 4B1.1(a), 4B1.2(a)).
“After Borden v. United States, a crime of violence . . . requires a mens rea greater
than recklessness—e.g., knowledge or intent.” United States v. Lopez-Castillo, 24
F.4th 1216, 1219 n.2 (8th Cir. 2022) (citing Borden v. United States, 141 S. Ct. 1817,
2 In 2018, after Cooper committed a class “C” felony offense of Intimidation
with a Dangerous Weapon Iowa, Iowa amended § 708.6 by identifying the class “C”
felony as subsection (1) and the class “D” felony as subsection (2). The language of
the statute otherwise remained the same.

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1834–35 (2021)). In Frazier, we held that a class “D” felony conviction for
Intimidation with a Dangerous Weapon under § 708.6(2) is not a crime of violence
under the Guidelines because an offense under this provision can be committed
recklessly, without knowledge or intent. See 48 F.4th 884, 887 (8th Cir. 2022) (“[A]
defendant may violate § 708.6(2) without knowingly or intentionally placing an
occupant [of a building] in reasonable apprehension of serious bodily injury.”).
But Cooper was convicted of class “C” felony Intimidation with a Dangerous
Weapon in violation of § 708.6. The class “C” felony is a specific intent crime
because it requires a person to act “with the intent to injure or provoke fear or anger
in another.” § 708.6. Unlike the class “D” felony, which was at issue in Frazier,
reckless conduct is insufficient to constitute a class “C” felony Intimidation with a
Dangerous Weapon and thus does not present the same Borden problem. The district
court did not plainly err in finding that Cooper’s prior conviction for Intimidation
with a Dangerous Weapon is a crime of violence for purposes of § 2K2.1(a)(1). See
United States v. Dixon, 27 F.4th 568, 569 (7th Cir. 2022) (concluding that
intentionally placing someone in reasonable fear of serious injury under Iowa Code
§ 708.6(1) “necessarily includes a ‘threatened use of physical force,’ which is
sufficient for the crime to qualify as a crime of violence under the Guidelines.”).3
III.
Next, Cooper argues that his sentence is substantively unreasonable. We
review such challenges “under a ‘deferential abuse-of-discretion standard.’” United
States v. Manning, 738 F.3d 937, 947 (8th Cir. 2014) (quoting United States v.
3 At sentencing, Cooper also lodged an objection to the four-level
enhancement for the number of firearms involved under § 2K2.1(b)(1)(B). The
district court determined it was unnecessary to rule on the objection as part of the
sentencing hearing because Cooper’s advisory Guidelines range would be above the
statutory maximum sentence regardless of whether the enhancement applied. Cooper
seeks a remand for additional fact finding on this issue only if we conclude that the
district court plainly erred in calculating his base offense level. Because we conclude
that the court did not, we need not address this argument further.

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Beasley, 688 F.3d 523, 535 (8th Cir. 2012)). This review is “narrow and deferential.”
United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quoting
United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)). “A district court
abuses its discretion ‘when it fails to consider a relevant and significant factor, gives
significant weight to an irrelevant or improper factor, or considers the appropriate
factors but commits a clear error of judgment in weighing those factors.’” United
States v. Stong, 773 F.3d 920, 926 (8th Cir. 2014) (quoting United States v. Robison,
759 F.3d 947, 950–51 (8th Cir. 2014)).
At sentencing, Cooper sought a downward variance, arguing that being raised
in poverty with an absent father had a significant influence on his life’s trajectory;
that he had suffered behavioral and emotional disorders from an early age; that he
was only 19 years old at the time of the instant offense; and that his offense did not
involve actual violence. See 18 U.S.C. § 3553(a)(1), (2). On appeal, he argues that
a 120-month sentence—the statutory maximum sentence the district court could
impose—is greater than necessary under the circumstances. This is particularly so,
he asserts, in light of his guilty plea and his willingness to accept responsibility for
his conduct.
The district court considered these factors, but exercised its discretion to
weigh them differently. See United States v. Johnson, 916 F.3d 701, 703 (8th Cir.
2019) (“[A sentencing] court has ‘wide latitude’ to weigh the § 3553(a) factors in
each case and to assign some factors greater weight than others.” (quoting United
States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009))). The court recognized
Cooper’s guilty plea and his post-arrest admissions to law enforcement officers as
mitigating factors. It also acknowledged Cooper’s childhood experiences and mental
health history, but it disagreed that those factors supported a lower sentence. It called
Cooper’s offense conduct “highly aggravating” and “incredibly dangerous,” and it
emphasized the risks associated with a high-speed chase that included throwing a
loaded firearm out a car window in a residential neighborhood. In addition, the court
viewed Cooper’s criminal history, involving similar conduct, as “troubling.” Here,
the district court placed significant weight on the nature and circumstances of the

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offense and the need to protect the public, expressing concern that Cooper had “not
[been] deterred by the criminal justice system” and that he was at high risk of
reoffending. The district court adequately weighed the § 3553(a) factors when
imposing sentence, and we find no abuse of discretion.
IV.
We affirm the judgment of the district court.
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