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Eighth Circuit Vacates Career Sentence and Reconsiders Prior Opinion about Attempted Use of Force: Fraizer

The Eighth Circuit used Borden to reevaluate concepts of attempted use of force.

Facts:  Repeat Offender Sentenced As Career Offender For Prior "Crime of Violence"

Frazier was sentenced to a term of 240 months imprisonment after the district court determined him to be a career offender under U.S.S.G. 4B1.1. On appeal, Frazier argued that his Iowa conviction for Intimidation with a Dangerous Weapon was not a “crime of violence” as defined by the Guidelines under U.S.S.G. 4B1.2.

The Iowa statute provides that

“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 . . . 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 706.6(2).

The government argued on appeal that section 708.6(2) is comprised of two separate offenses, and that the court should consider only the “threatens” alternative under which Frazier was convicted. The Eighth Circuit, for the sake of its analysis, assumed the government’s theory was correct. However, the court concluded that the offense of making a threat by itself does not require the use or attempted use of force required to be deemed a “crime of violence.”

The district court concluded that Frazier was a career offender by relying on the Eighth Circuit’s decision in United States v. Langston, 772 F.3d 560 (8th Cir. 2014). There, the court determined that a violation of section 708.6 requires “the use of force, threat, or intimidation,” and that a violation “necessarily requires violent force.” As such, the Eighth Circuit previously held a violation of section 708.6(2) under Iowa law qualifies as a valid career offender predicate.

But the Supreme Court’s recent decision in Borden v. United States, 141 S.Ct. 1817 (2021) led the Eighth Circuit to reconsider its earlier decision in Langston. In Borden, the Supreme Court held in the context of the Armed Career Criminal Act that the use of force clause does not support an offense that can be committed with a mens rea of recklessness.

Holding:  Borden causes the Court to Rethink its Definition Concerning Bodily Injury.

In light of Borden, the Eighth Circuit concluded that section 708.6(2) does not satisfy the force clause of U.S.S.G. 4B1.2. The court held that the Iowa offense is a “general intent crime” and does not require the prosecution prove the defendant “subjectively desired the prohibited result; he need only intend to commit the prohibited act.” In other words, the Eighth Circuit held that a defendant may violate the Iowa code without knowingly or intentionally placing an occupant in reasonable apprehension of serious bodily injury. And because Borden made reckless actions insufficient to constitute a crime of violence, the Eight Circuit concluded that Frazier’s violation of section 708.6(2) was an invalid predicate and the district court erred in sentencing Frazier as a career offender.

The court of appeals vacated the district court’s judgment and remanded the case for resentencing without the career offender enhancement.

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