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Following a recent U.S. Supreme Court case, the 8th U.S. Circuit Court of Appeals on Oct. 17 reaffirmed a ruling that defines what constitutes a crime of violence under Missouri law.
The case stems from the sentencing of Keith Larry in the U.S. District Court for the Eastern District of Missouri for being a felon in possession of a firearm. Larry previously was convicted in Missouri state court of knowingly exhibiting a knife in an angry or threatening manner in the presence of his wife.
Under the U.S. Sentencing Guidelines, defendants face sentencing enhancements if they have previously committed a “crime of violence,” which is defined as a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
In a 2009 opinion, U.S. v. Pulliam, the 8th Circuit found that the Missouri statute criminalizing the unlawful exhibition of a weapon counted as a violent felony for purposes of the Armed Career Criminal Act, which uses identical language to the sentencing guidelines. Larry, however, argued that a recent U.S. Supreme Court ruling required the circuit to reconsider its precedent.
In Borden v. United States, the high court in 2021 held that the definition of “crimes of violence” didn’t allow the enhancement to be applied to a man whose record included a conviction for reckless aggravated assault.
The Supreme Court’s four-judge plurality, led by Justice Elena Kagan, reasoned that a reckless crime didn’t qualify because of the requirement that the force be “against the person of another.” Larry argued that his Missouri offense only required a showing that he had exhibited the weapon, not that he’d directed it against a particular person.
However, the plurality opinion in Borden had become the majority ruling only with the reluctant concurrence of Justice Clarence Thomas, who disagrees with the court’s previous rulings on the definition of “crime of violence.” Rather than focus on the use of force against another person, Thomas’ analysis focused on the phrase “use of physical force,” which he said is understood only to apply to intentional acts designed to cause harm.
Judge Roger Wollman, writing for the 8th Circuit, wrote that Pulliam — which he wrote — remains good law.
“When the plurality and concurring opinions are read together, then, Borden holds only that the force clause categorically excludes offenses that can be committed recklessly,” he wrote. Judges Steven M. Colloton and David R. Stras concurred.
The case is U.S. v. Larry, 21-3237.
