United States of America v. Donald G. Anthony

United States Court of Appeals
For the Eighth Circuit
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No. 16-4416
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Donald G. Anthony
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 13, 2017
Filed: February 1, 2018 (Corrected 2/2/2018)
[Unpublished]
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Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
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PER CURIAM.
In 2013, Donald Anthony pled guilty to felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and possession with intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1). At sentencing,

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the district court 1 found Anthony was subject to a mandatory minimum sentence of
fifteen years as an armed career criminal under the Armed Career Criminal Act
(ACCA) based on his three prior felony convictions: an Arkansas conviction for
terroristic threatening and two Nebraska convictions for assault by a confined person.
18 U.S.C. § 924(e)(1). The court sentenced Anthony to 188 months imprisonment.
After the Supreme Court decision in Johnson v. United States, 559 U.S. 133
(2010), held the residual clause of the ACCA to be unconstitutional, Anthony filed a
motion to vacate his sentence under 28 U.S.C. § 2255, claiming his prior felonies no
longer qualified as ACCA predicate offenses. Indeed, the government conceded that
Anthony’s Arkansas conviction no longer qualified as a violent felony under the
ACCA and thus—because Anthony had only two predicate offenses—the district
court determined that he did not meet the ACCA requirement of three violent felonies.
18 U.S.C. § 924(e)(1). The district court granted Anthony’s motion to vacate and
ordered resentencing. At resentencing, the district court found that Anthony did,
however, qualify as a career offender under United States Sentencing Guidelines
§ 4B1.1(a), which requires only two predicate offenses for crimes of violence. After
rejecting Anthony’s argument that his two Nebraska convictions did not qualify as
crimes of violence, the district court resentenced him to 80 months imprisonment as
a career offender.
On appeal, Anthony challenges only the district court’s finding that his
Nebraska convictions constitute crimes of violence. We review de novo whether a
conviction qualifies as a crime of violence. United States v. Harrison, 809 F.3d 420,
425 (8th Cir. 2015).
The Sentencing Guidelines define a “crime of violence” as “any offense under
federal or state law, punishable by imprisonment for a term exceeding one year, that
1The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
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. . . has as an element the use, attempted use, or threatened use of physical force
against the person of another.” USSG § 4B1.2(a)(1). Under Nebraska law, assault by
a confined person is defined as “[a]ny person who is legally confined . . . intentionally,
knowingly, or recklessly caus[ing] bodily injury to another person.” Neb. Rev. Stat.
§ 28-932(1). Anthony argues that because the statute encompasses force applied
recklessly, it cannot constitute a crime of violence.
As Anthony himself concedes, however, our decision here is controlled by our
previous decision in United States v. Fogg, 836 F.3d 951 (8th Cir. 2016). There, we
held that “use. . . of physical force” under the ACCA includes force applied
recklessly. Id. at 956. And “we see no reason why ‘use’ of force under the guidelines
would mean something different from ‘use’ of force under the ACCA.” United States
v. Ramey, No. 16-4328, slip op. at 3 (8th Cir. Jan 22, 2018). Moreover, we recently
held a Missouri statute criminalizing reckless conduct to be a crime of violence under
the Guidelines. Id. Accordingly, we conclude that “intentionally, knowingly, or
recklessly caus[ing] bodily injury to another person,” Neb. Rev. Stat. § 28-932(1),
constitutes a use of force under the Guidelines. Thus, Anthony’s two prior
convictions for assault by a confined person constitute crimes of violence, making him
a career offender under the Guidelines. See USSG § 4B1.1(a).
We therefore deny Anthony’s motion for oral argument and affirm his sentence.
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