Submitted: April 13, 2018
from United States District Court for the District of
Minnesota - St. Paul
COLLOTON, ARNOLD, and SHEPHERD, Circuit Judges.
Wadena pled guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g). Under the Armed Career Criminal Act (ACCA), a person
who is convicted of a violation of § 922(g) "and
has three previous convictions . . . for a violent felony or
a serious drug offense, or both, . . . shall be . . .
imprisoned not less than fifteen years." §
924(e)(1). The district court found that Wadena had three
qualifying felony convictions: two convictions for
third-degree assault in violation of Minn. Stat. §
609.223, subdiv. 1, and one conviction for possession with
intent to sell in the fourth degree in violation of Minn.
Stat. § 152.024, subdiv. 2(2). Accordingly, over
Wadena's objection, the court sentenced him as an armed
career criminal and imposed the 180-month mandatory-minimum
sentence in the ACCA. 18 U.S.C. § 924(e). Wadena
appeals, arguing that none of his convictions support the
application of the ACCA. Reviewing the issues de novo,
see United States v. Naylor, 887 F.3d 397, 400 (8th
Cir. 2018) (en banc), we affirm.
first contends that his third-degree assault convictions are
not "violent felon[ies]" as that term is defined by
the ACCA. To qualify as a "violent felony" under
the statute, the prior conviction must be for "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). The Supreme Court has
interpreted this clause, commonly referred to as the
"force clause," to require "violent
force-that is, force capable of causing physical pain or
injury to another person." Johnson v. United
States, 559 U.S. 133, 140 (2010). As Wadena
acknowledges, we held in United States v. Lindsey
that the degree of force required under Minnesota's
second-degree assault statute "requires the use,
attempted use, or threatened use of physical force against
another and therefore qualifies as a violent felony for ACCA
purposes." 827 F.3d 733, 740 (8th Cir.), cert.
denied, 137 S.Ct. 413 (2016). Although Lindsey
concerned second-degree assault and this case concerns
third-degree assault, the definition of
"assault"-derived from Minn. Stat. § 609.02,
subdiv. 10-is the exact same for each. As such,
Lindsey controls. The district court properly ruled
that Wadena's third-degree assault convictions counted as
"violent felon[ies]." 18 U.S.C. §
next asserts that his Minnesota controlled-substances
conviction is not a "serious drug offense" under
the ACCA because the Minnesota statute of conviction
criminalizes more conduct than that covered by the federal
statute. A "serious drug offense" is "an
offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance." §
924(e)(2)(A)(ii). Wadena was convicted of violating Minn.
Stat. § 152.024, subdiv. 2(2), which states: "A
person is guilty of controlled substance crime in the fourth
degree if . . . the person unlawfully possesses one or more
mixtures containing a controlled substance . . . with the
intent to sell it." Included in the definition of
"sell" under Minnesota law is an "offer . . .
to sell," id. § 152.01, subdiv. 15a(2),
which Wadena asserts makes the Minnesota statute
categorically broader than the ACCA definition of
"serious drug offense."
argument fails. As Wadena recognizes, we rejected a similar
argument in United States v. Bynum, where the
defendant advocated for a narrow interpretation of the
statutory term "serious drug offense." 669 F.3d
880, 886 (8th Cir. 2012). Reasoning that "the term
'involving' [is] an expansive term that requires
only that the conviction be 'related to or connected
with' drug manufacture, distribution, or
possession," we "conclude[d] that knowingly
offering to sell drugs is a 'serious drug offense'
under the ACCA." Id. Wadena's contention
thus falls within Bynum's reach because his sole
argument for escaping application of the ACCA is that an
offer to sell drugs is not a serious drug offense under the
statute. The district court correctly determined that
Wadena's violation of Minn. Stat. § 152.024, subdiv.
2(2) was a "serious drug offense" under 18 U.S.C.
he has three previous convictions qualifying as either
"violent felon[ies]" or "serious drug
offense[s]," the district court properly sentenced
Wadena as an armed career criminal. We affirm the sentence.
The Honorable John R. Tunheim, Chief
Judge, United States District Court for the District of
For the purposes of this opinion, we
assume the statutes at issue are divisible because the
parties have treated them as ...