United States of America v. Dreshon Rene Frazier

United States Court of Appeals
For the Eighth Circuit
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No. 21-2187
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Dreshon Rene Frazier,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: January 14, 2022
Filed: September 9, 2022
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Before COLLOTON, KELLY, and KOBES, Circuit Judges.
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COLLOTON, Circuit Judge.
Dreshon Frazier appeals a sentence of 240 months’ imprisonment imposed by
the district court after he was convicted of a drug trafficking offense and two firearms
offenses. The district court determined that Frazier was a career offender under the
sentencing guidelines, see USSG § 4B1.1(a), and calculated his advisory sentencing
range accordingly. On appeal, Frazier challenges the career-offender determination.

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In light of intervening authority, we conclude that one of Frazier’s prior felony
convictions does not qualify as a crime of violence under the guidelines, and that he
is not properly classified as a career offender based on that conviction. Therefore, we
vacate Frazier’s sentence and remand for resentencing.
Under the so-called “force clause” of the career-offender guideline, 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.”
USSG §§ 4B1.1(a), 4B1.2(a). To make that determination, we must apply the
categorical approach and consider whether all of the acts made criminal by the
offense, including the least culpable, would satisfy the force clause. See United
States v. Kent, 44 F.4th 773, 774 (8th Cir. 2022).
Frazier’s challenge concerns the offense of Intimidation with a Dangerous
Weapon under Iowa law. The provision at issue states:
A person commits a class “D” felony when the person shoots, throws,
launches, or discharges a dangerous weapon at, into, or in a building,
vehicle, airplane, railroad engine, railroad car, or boat, occupied by
another person, or within an assembly of people, and thereby places the
occupants or people in reasonable apprehension of serious injury or
threatens to commit such an act under circumstances raising a
reasonable expectation that the threat will be carried out.
Iowa Code § 708.6(2). The statute encompasses two alternatives: a first in which the
offender acts with respect to a building or other enumerated location, and a second
in which the offender “threatens to commit such an act.” The record shows that
Frazier was convicted under the “threatens” alternative.
The government contends that the alternatives in § 708.6(2) constitute two
separate offenses, and that we should therefore consider only the “threatens”
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alternative under which Frazier was convicted. We will assume for the sake of
analysis that this is correct. Frazier’s offense of making a threat by itself does not
require the use of force or attempted use of force, so those aspects of the force clause
are inapplicable.
The question, then, is whether threatening to commit “such an act” as described
in the first alternative of § 708.6(2) has as an element the threatened use of physical
force against the person of another. The act that must be threatened is, for example,
that the offender will shoot at, into, or in a building, occupied by another person, and
thereby place the occupants in reasonable apprehension of serious injury. The first
alternative of § 708.6(2) has been applied where a defendant said that he wanted to
kill himself and then shot a gun into the floor of a bedroom while his wife was in
another room. State v. Gregersen, No. 16-0883, 2017 WL 936149 (Iowa Ct. App.
Mar. 8, 2017). In another case, a defendant was convicted after firing a gun from the
kitchen of his home through a door toward the outside, while his fiancée was in a
bedroom. State v. Hopper, No. 15-1855, 2017 WL 936085 (Iowa Ct. App. Mar. 8,
2017). In both cases, an offense occurred because the defendant’s shooting placed
the other occupant in reasonable apprehension of serious injury, even though the
force was not directed at her. Frazier’s offense under the “threatens” alternative thus
encompasses threatening to commit such acts as those that led to convictions in
Gregersen and Hopper.
The district court concluded that Frazier’s offense was a crime of violence
under the force clause based on United States v. Langston, 772 F.3d 560 (8th Cir.
2014) (per curiam), vacated on other grounds, 576 U.S. 1080 (2015), reinstated in
part, 795 F.3d 923 (8th Cir.) (per curiam), vacated on other grounds, 800 F.3d 1004
(8th Cir. 2015) (per curiam). Langston said that a violation of § 708.6 requires “the
use of force, threat, or intimidation,” and that a violation “necessarily requires violent
force.” Id. at 562-63. The opinion is brief, but it apparently reasoned that where an
offender does not actually use or attempt to use force against another person, the
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firing of a gun at, into, or in a building amounts to a “threatened use of physical force
against the person of another” if the shooting places an occupant in reasonable
apprehension of serious injury.
The conclusion in Langston must be reconsidered in light of Borden v. United
States, 141 S. Ct. 1817 (2021), which was decided after the sentencing in this case.
Borden concerned the force clause of 18 U.S.C. § 924(e); the text of the force clause
under the sentencing guidelines is identical, and we see nothing in the commentary
or elsewhere to suggest that it would be interpreted differently. See United States v.
Vinton, 631 F.3d 476, 484 (8th Cir. 2011). The upshot of Borden is that a crime
committed with a mens rea of recklessness does not involve “the use, attempted use,
or threatened use of physical force against the person of another.” A plurality
reasoned that “[t]he phrase ‘against another,’ when modifying the ‘use of force,’
demands that the perpetrator direct his action at, or target, another individual.”
Borden, 141 S. Ct. at 1825 (plurality opinion). Because “[r]eckless conduct is not
aimed in that prescribed manner,” offenses committed with a reckless mental state do
not have as an element the use of force. Id. An opinion concurring in the judgment
concluded that the phrase “use of physical force” applies “only to intentional acts
designed to cause harm,” and thus does not encompass recklessness. Id. at 1835
(Thomas, J., concurring in the judgment) (internal quotation omitted).
Examining § 708.6(2) in light of Borden shows that a violation of the Iowa
statute does not satisfy the force clause. The “threatens” alternative requires proof
that the defendant threatened to commit an act specified in the first alternative. The
first alternative—applicable where a defendant shoots in a building and thereby
places another in fear—is a general intent crime. State v. Johnson, 534 N.W.2d 118,
126-27 (Iowa Ct. App. 1995). As such, there is no requirement that the defendant
subjectively desire the prohibited result; he need only intend to commit the prohibited
act. See Bacon ex rel. Bacon v. Bacon, 567 N.W.2d 414, 417 (Iowa 1997). In other
words, a defendant may violate § 708.6(2) without knowingly or intentionally placing
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an occupant in reasonable apprehension of serious bodily injury. It is sufficient, for
example, if the defendant intentionally fires a gun inside a building, but only
recklessly causes an occupant to fear serious injury. Before Borden, our decision in
Langston apparently concluded that recklessly placing an occupant in reasonable
apprehension of serious injury was sufficient to constitute a threatened use of force.
After Borden, a reckless action is insufficient to constitute a use, attempted use,
or threatened use of physical force against another. Therefore, a violation of the first
alternative under § 708.6(2)—shooting in a building, and thereby placing an occupant
in reasonable apprehension of serious injury—is not a crime of violence. The offense
does not require that the defendant knowingly or intentionally target the person of
another with force or threatened force.
The government argues that the “threatens” alternative of § 708.6(2) still
qualifies as a crime of violence after Borden, because a threat must be intentional.
But the question under the force clause is not simply whether the defendant made an
intentional threat, but whether the defendant threatened the use of physical force
against the person of another. As discussed, the acts proscribed under the first
alternative of § 708.6(2) do not constitute a use, attempted use, or threatened use of
force against the person of another. Threatening to commit an act that does not
satisfy the force clause likewise does not satisfy the force clause, even if the threat
itself is intentional. The best evidence of Iowa law also suggests that the “threatens”
alternative does not require proof that the offender’s threat itself placed someone “in
reasonable apprehension of serious injury.” In re E.B., No. 17-0651, 2018 WL
1099480, at *2 (Iowa Ct. App. Feb. 21, 2018).
Accordingly, we conclude that Frazier’s violation of § 708.6(2) does not have
as an element the use, attempted use, or threatened use of force against the person of
another. The offense thus does not qualify as a crime of violence under USSG
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§ 4B1.2(a)(1). As a result, Frazier does not qualify as a career offender under the
guidelines based on that conviction.
The sentence imposed by the district court is vacated, and the case is remanded
for resentencing. Frazier’s request for judicial notice is granted.
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