United States of America v. Jermaine Steven Daye, also known as Pickles, also known as Pickle

United States Court of Appeals
For the Eighth Circuit
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No. 23-1048
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United States of America
Plaintiff - Appellant
v.
Jermaine Steven Daye, also known as Pickles, also known as Pickle
Defendant - Appellee
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: September 21, 2023
Filed: January 16, 2024
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Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
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GRUENDER, Circuit Judge.
The Government appeals the district court’s1 sentence of eighty-four months’
imprisonment for Jermaine Steven Daye. We affirm.
1 The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.

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I.
Daye pleaded guilty to arson, see 18 U.S.C. § 844(i), after lighting a fire in
the hallway of an occupied apartment building. The presentence investigation report
recommended classifying Daye as a career offender based on two convictions for
Domestic Abuse Assault, Enhanced (“DAAE”) under Iowa Code § 708.2A(3)(b).
See U.S.S.G. § 4B1.1 (providing an enhanced sentence on a third conviction for a
crime of violence). Daye objected to the career offender enhancement, arguing that
the DAAE convictions were not “crimes of violence” within the meaning of the
sentencing guidelines. The district court agreed that DAAE is indivisible and not
categorically a crime of violence and thus found that Daye was not a career offender.
The district court then sentenced Daye to 84 months’ imprisonment, which was an
upward variance from the resulting advisory sentencing guidelines range of 60 to 63
months. The Government appeals, arguing that Daye is a career offender.
II.
A defendant is a career offender under the guidelines if, in relevant part, “(1)
[he] was at least eighteen years old at the time [he] committed the instant offense of
conviction; (2) the instant offense of conviction is a felony that is . . . a crime of
violence . . . and (3) the defendant has at least two prior felony convictions of . . . a
crime of violence.” U.S.S.G. § 4B1.1(a). There is no dispute that Daye was older
than eighteen at the time he committed arson. Daye’s instant offense of conviction,
arson, is an enumerated “crime of violence” offense. See U.S.S.G. § 4B1.2(a)(2).
DAAE is not an enumerated offense, but it is punishable by more than one year’s
imprisonment, Iowa Code §§ 903.1(2), 708.2A(3)(b),2 and a crime of violence is
“any offense under federal or state law, punishable by imprisonment for a term
exceeding one year” that “has as an element the use, attempted use, or threatened
2 Although DAAE is an “aggravated misdemeanor” rather than a felony, “a
crime designated as an aggravated misdemeanor under Iowa law falls within the
Guidelines definition of felony offense.” United States v. Boots, 816 F.3d 971, 974
(8th Cir. 2016).

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use of physical force against the person of another,” U.S.S.G. § 4B1.2(a). The
question of whether Daye is a career offender thus turns on whether DAAE “has as
an element the use, attempted use, or threatened use of physical force against the
person of another.” See id.
“We review de novo a district court’s determination that an offense qualifies
as a crime of violence under the Guidelines.” United States v. Fields, 863 F.3d 1012,
1013 (8th Cir. 2017). “The first step in our analysis is to determine whether to apply
the categorical or modified categorical approach.” United States v. Quigley, 943
F.3d 390, 393 (8th Cir. 2019) (internal quotation marks omitted). “If the statute
underlying the predicate conviction creates a single crime by listing a single set of
elements, it is indivisible, and we follow the categorical approach, looking to the
elements of the offense rather than the defendant’s actual conduct to determine if it
has a physical-force element.” Id. (internal quotation marks omitted). “But if the
statute is divisible, setting forth multiple, alternative versions of the crime, and not
all of the alternatives satisfy the generic definition, then we apply the modified
categorical approach.” United States v. McArthur, 850 F.3d 925, 937-38 (8th Cir.
2017) (internal quotation marks omitted). To “determine whether the statute is
divisible,” we ask whether it is divided “into alternative elements—separate
crimes—or instead sets forth alternative factual means to commit a single offense.”
United States v. Fisher, 25 F.4th 1080, 1083 (8th Cir. 2022).
A.
In its opening brief, the Government made a two-sentence argument, without
citations, that DAAE is divisible. We elect not to decide the matter, because we
consider that argument waived.3 See, e.g., United States v. Thao, 76 F.4th 773, 779
3 The Government argues that Iowa Code § 708.2A(3)(b) is divisible into two
clauses separated by the word “or,” which are separate crimes “because they are tied
to different underlying penalty provisions.” Appellant’s Br. 13. But Mathis v.
United States, decided eight years ago, instructs us to make a “means-elements”
determination that analyzes “the statute on its face,” “authoritative sources of state

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(8th Cir. 2023) (“Because these arguments weren’t meaningfully developed, we can
consider them waived.”); Meyers v. Starke, 420 F.3d 738, 743 (8th Cir. 2005) (“To
be reviewable, an issue must be presented in the brief with some specificity. Failure
to do so can result in waiver.”); Molasky v. Principal Mut. Life Ins., 149 F.3d 881,
885 (8th Cir. 1998) (“[I]t is not this court’s job to research the law to support an
appellant’s argument.” (quoting Lusby v. Union Pac. R.R., 4 F.3d 639, 642 (8th Cir.
1993))); see also Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 148
n.10 (2011) (“The premise of our adversarial system is that appellate courts do not
sit as self-directed boards of legal inquiry and research. . . . It is undesirable for us
to decide a matter of this importance in a case in which we do not have the benefit
of briefing by the parties.”). We therefore apply the categorical approach to DAAE.
B.
“Under the categorical approach, we restrict our inquiry to the abstract
requirements for a conviction, rather than the defendant’s actual conduct, and ask
whether a conviction necessarily had a physical-force element for the offense to
qualify as a crime of violence under the force clause.” Quigley, 943 F.3d at 394
(internal quotation marks omitted). “[I]f the crime can be committed without even
the threatened use of physical force, it does not have a physical force element.” Id.
Physical force means “violent force—that is, force capable of causing physical pain
or injury to another person.” United States v. Parrow, 844 F.3d 801, 802 (8th Cir.
2016). “For an offense to lack a physical-force element under the categorical
approach, there must be a non-fanciful, non-theoretical manner to commit the
offense without so much as the threatened use of physical force.” United States v.
Hamilton, 46 F.4th 864, 868 (8th Cir. 2022) (internal quotation marks omitted).
law” including “state court decision[s],” and if those are unclear, “indictment[s] and
correlative jury instructions” to see “what the prosecutor has to . . . demonstrate to
prevail.” 579 U.S. 500, 517-19 (2016). The Government failed to make a sufficient
argument on this complex issue.

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Under Iowa law, DAAE “is an enhanced assault statute that imposes increased
penalties for conduct that violates Iowa’s simple assault statute and which is
committed against someone within a domestic relationship.” Kelly v. United States,
819 F.3d 1044, 1048 (8th Cir. 2016); see also Iowa Code § 708.1 (defining
“assault”); Iowa Code § 236.2(2)(a)-(e) (defining “domestic abuse”). On a second
domestic abuse assault offense, a person commits DAAE if:
the first offense was classified as a simple or aggravated misdemeanor,
and the second offense would otherwise be classified as a serious
misdemeanor, or the first offense was classified as a serious or
aggravated misdemeanor, and the second offense would otherwise be
classified as a simple or serious misdemeanor.
§ 708.2A(3)(b). “Simple,” “serious,” and “aggravated” refer to various types of
domestic abuse assault, covering conduct ranging from simple assault to assault by
strangulation. Iowa Code § 708.2A(2)(a)-(d), (3)(a). In other words, DAAE
elevates a domestic abuse assault that would otherwise be a simple or serious
misdemeanor to an aggravated misdemeanor if the defendant has a prior conviction
for one of several enumerated types of domestic abuse assault.
At oral argument, the Government conceded that a defendant can be found
guilty of DAAE by committing three simple misdemeanor domestic abuse assaults.
The Government further conceded in its opening brief, and we agree, that simple
misdemeanor domestic abuse assault is not a crime of violence. See Appellant’s Br.
13; Smith v. Janssen, 899 N.W.2d 741, 2017 WL 1086206, at *2 (Iowa Ct. App.
2017) (unpublished table decision) (holding that touching or poking someone when
he has stated that he did not want to be touched constitutes domestic abuse assault);
see also State v. Johnson, 291 N.W.2d 6, 9 (Iowa 1980) (“For assault, it is sufficient
if the defendant intends to offensively touch someone.”); State v. Spears, 312
N.W.2d 79, 80-81 (Iowa Ct. App. 1981) (reaching into someone’s pocket without
permission constitutes an assault). The statute works as follows: a defendant who
commits two simple misdemeanor domestic abuse assaults will see the second
assault elevated to a “serious” misdemeanor. § 708.2A(3)(a). Should that defendant

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then commit a third simple misdemeanor domestic abuse assault, that third assault
can be charged as DAAE. § 708.2A(3)(b). Although DAAE ostensibly covers only
“second” offenses, defendants can be convicted of DAAE on third and subsequent
convictions for simple misdemeanor domestic abuse assault. See, e.g., State v. Doty,
858 N.W.2d 37, 2014 WL 5249761, at *1 (Iowa Ct. App. 2014) (unpublished table
decision) (affirming DAAE conviction on third domestic abuse assault).
This is a “non-fanciful, non-theoretical manner” by which a person can be
convicted of DAAE “without so much as the threatened use of physical force.”
Hamilton, 46 F.4th at 868. And although Daye does not cite a case in which DAAE
has been applied on a third simple misdemeanor domestic abuse assault, we have
already held that “when the statute’s reach is clear on its face,” no case citation is
required because “it takes no ‘legal imagination’ or ‘improbable hypotheticals’ to
understand how [the statute] may be applied and to determine whether it covers
conduct an analogous federal statute does not.” Gonzalez v. Wilkinson, 990 F.3d
654, 660 (8th Cir. 2021). To hold otherwise would be “to conclude that ‘realistic
probability’ means that petitioners must prove through specific convictions that
unambiguous laws really mean what they say,” an approach which would be “at odds
with the categorical approach itself.” Id.
III.
For the foregoing reasons, we affirm.
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