text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wakinyan Wakan MCARTHUR, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. William Earl Morris, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Anthony Francis Cree, Defendant-Appellant.
    No. 14-3335, No. 14-3336, No. 14-3367
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 18, 2016
    Filed: September 8, 2016
    Rehearing and Rehearing En Banc Denied Oct. 19, 2016.

      Counsel who presented argument on behalf of the appellant, Wakinyan Wakan McArthur, was Frederick J. Goetz, Minneapolis, MN.
    Counsel who presented argument on behalf of the appellant, William Earl Morris, was Thomas Shiah, Minneapolis, MN.
    Counsel who presented argument on behalf of appellant, Anthony Francis Cree, was John Charles Brink, Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was David Genrich, AUSA, of Minneapolis, MN.
    Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
   COLLOTON, Circuit Judge.

A jury convicted Anthony Cree, William Morris, and Wakinyan McArthur of criminal offenses stemming from their involvement with the Native Mob, a Minnesota prison and street gang. All three appeal and argue that the district court erred as to the sufficiency of the evidence, jury instructions, or sentencing. We affirm in part, reverse in part, and remand for further proceedings.

I.

A.

As each defendant challenges the sufficiency of the evidence in support of his convictions, we recite the facts in the light most favorable to the verdicts. United States v. Paris, 816 F.3d 1037, 1038-39 (8th Cir. 2016). The Native Mob is a prison and street gang that started in south Minneapolis in the mid-1990s. The Mob developed a large presence in Minnesota and now has over two hundred members in the state. Its members participate in a variety of criminal acts, including sales of controlled substances and assaults on members of rival gangs. Through these activities, Mob members seek to promote the gang’s reputation and to protect its members and territory.

In December 2009, McArthur called for a Mob meeting. At the meeting, Mob members elected a new group of leaders in the gang’s hierarchical structure. Kenneth Roberts was elected War Chief, and Christopher Wuori was named Cass Lake Representative. Members also agreed to hold monthly statewide meetings.

McArthur served as Chief of the Mob, the top leadership position, from 2010 until 2012. Under McArthur, members had easy access to firearms. Members could request a firearm from another member, or they could retrieve a firearm from one of several Mob associates who stored the weapons. The Mob also placed a premium on retaining firearms. At one meeting, McArthur instructed Mob members to “cherish” firearm ownership and to stop losing Mob weapons.

McArthur and Wuori also increased the Mob’s drug trafficking operations. The two men “pooled their money together” to purchase cocaine and divided equally the income derived from their drug sales. Wuori obtained cocaine from suppliers, and then converted the cocaine into crack cocaine. Wuori often completed the conversion process in a residence that he and McArthur shared in Cass Lake, Minnesota. Members frequented the house and assisted McAr-thur and Wuori in obtaining, packaging, and storing the drugs. McArthur and Wuo-ri sold crack cocaine to several members, who then resold the drugs to individuals throughout Minnesota.

During McArthur’s term as Chief, he often encouraged members to harm rival gang leaders and others who posed a threat to the gang, urging members to be willing to “go out and shoot-‘em up.” At one of the Mob’s meetings, McArthur told members to attack an enemy of the Mob, instructing one member to shoot at the enemy’s residence. McArthur also said that the Mob “need[ed] to whack” the leader of an opposition gang, and that the leader’s death “would benefit us all.”

Amos LaDuke, a former associate of the Mob, was the victim of a Mob attack. In early 2010, Mob members, including Wuori and Cree, concluded that LaDuke “needed to be whacked.” Morris also participated in discussions about LaDuke, and Wuori planned to give Morris a '“gun ... in case he seen Amos somewhere.” On March 4, 2010, LaDuke was walking in Cass Lake when a car, owned by Cree, approached. Cree, Morris, and two other people were in the vehicle. Morris got out of the car, carrying a firearm as LaDuke started to run away. Morris fired several rounds toward LaDuke, striking LaDuke three times before a former police officer drove his truck between Morris and LaDuke and ended the encounter. Morris fled the scene; authorities arrested him nearby shortly thereafter. Cree and the others in the car drove away during the shooting, and Cree was apprehended in an unrelated incident later that month.

The Mob also went to great lengths to protect its drug distribution territory. Of particular concern to the Mob was Lawrence Daniels, a drug dealer who competed against the gang for control of the Cass Lake drug trade. Starting in May 2010, Mob members talked about harming Daniels in hopes of removing him from their territory. During one conversation, McAr-thur and Wuori told Mob members Roberts, Emilio Bunker, Jeremee Kraskey, Cory Oquist, and Pedro Sayers that they wanted to find Daniels and “eliminate him by any means.” McArthur and Wuori decided to send members to “get ... information out” of a known associate of Daniels about Daniels’s whereabouts; from that excursion Mob members determined that Daniels was living in Bemidji, Minnesota.

Shortly after learning Daniels’s location, McArthur and other members, including Wuori, Bunker, Kraskey, and Roberts, discussed “going to Bemidji ... and shooting” Daniels. On August 21, 2010, Wuori drove Bunker, Oquist, and Sayers to Bem-idji, where the three men shot into a home where they believed Daniels lived. They realized soon after, however, that Daniels had no connection to the residence. In the presence of McArthur and Roberts, the four members recounted their error. Days later, on August 24, some of the same members made a second attempt on Daniels, shooting at the Raisch residence where Daniels was staying.

The Mob continued to pursue Daniels. At the request of McArthur and Wuori, Mob member Dale Pindegayosh agreed to participate in a home invasion to intimidate Daniels. On March 28, 2011, Pinde-gayosh and three other members, armed with firearms, broke into the home of Daniels’s father-in-law, John Wilke. Approximately two months later, McArthur and Wuori requested that Pindegayosh rob the Wilke home. Pindegayosh opted not to complete the crime, and that was the last evidence concerning Mob activity toward Daniels.

B.

Federal and state authorities began investigating the Native Mob as early as 2004. The investigation expanded after the LaDuke shooting. During the investigation, members-turned-informants wore recording devices to four Mob meetings in 2010 and 2011. Law enforcement officers conducted surveillance of several Mob members and installed GPS devices on vehicles used by members.

In January 2012, a grand jury charged Cree, Morris, McArthur, and others in a multicount indictment. Cree, Morris, and McArthur proceeded to trial. After a six-week trial, which included testimony from victims of Mob attacks, former Mob members, and investigators, a jury convicted the men of several charges. After the trial, the district court denied the defendants’ motions for judgments of acquittal or, in the alternative, new trials.

Cree was convicted of conspiracy to participate in racketeering activity, see 18 U.S.C. § 1962(d), and conspiracy to distribute and possess with intent to distribute, controlled substances. See 21 U.S.C. ^ §§ 841(a), (b), 846. He also was convicted of four counts related to his involvement in the LaDuke shooting: conspiracy to use and carry firearms during and in relation to a crime of violence, see 18 U.S.C. § 924(o), attempted murder in aid of racketeering, see id. §§ 1959(a)(5), 2, assault with a dangerous weapon in aid of racketeering, see id. §§ 1959(a)(3), 2, and use and carrying of a firearm during and in relation to a crime of violence. See id. §§ 924(c), 2. The district court sentenced Cree to 292 months’ imprisonment.

Morris’s convictions stemmed from the LaDuke shooting. He was convicted of 'attempted murder in aid of racketeering, assault with a dangerous weapon in aid of racketeering, use and carrying of a firearm during and in relation to a crime of violence, and possession of a firearm as a previously convicted felon. See id. § 922(g). Over Morris’s objection, the district court at sentencing ruled that Morris’s three prior Minnesota third-degree burglary convictions constituted “violent felonies” for purposes of the Armed Career Criminal Act. See id. § 924(e). Because the court found that Morris had at least three previous convictions for violent felonies, he was subject to a mandatory minimum 180-month sentence and a maximum of life on his conviction for possession of a firearm as a previously convicted felon, Count 6. See id. The court sentenced Morris to 360 months’ imprisonment on that count and to 420 months’ imprisonment total.

McArthur was convicted of conspiracy to participate in racketeering activity, conspiracy to use and carry firearms during and in relation to a crime of violence, conspiracy to distribute and possess with intent to distribute controlled substances, and distribution of a controlled substance. See 21 U.S.C. § 841(a), (b); 18 U.S.C. § 2. He also was convicted of two counts of use and carrying of a firearm during and in relation to a crime of violence. See 18 U.S.C. §§ 924(c), 2. The first § 924(c) conviction, Count 10, was based on McAr-thur’s involvement in the shooting at the Raisch home, and the district court sentenced him to a mandatory 60-month term on that charge. Id. § 924(c)(1). The second § 924(c) conviction, Count 11, related to McArthur’s role in the Wilke home invasion. The court imposed a mandatory 300-month consecutive sentence for that conviction. Id. In total, the district court sentenced McArthur to 516 months’ imprisonment.

II.

A.

Cree’s lone argument on appeal is that the district court erred in denying his motion for judgment of acquittal because the government presented insufficient evidence to sustain his convictions. We review the denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the verdict. Paris, 816 F.3d at 1038-39. We will reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.; see Fed. R. Crim. P. 29.

Cree first disputes the evidence in support of his conviction for conspiracy to participate in racketeering activity. See 18 U.S.C. § 1962(d). The government charged Cree with conspiring to violate 18 U.S.C. § 1962(c), a substantive provision of the Racketeer Influenced and Corrupt Organization (“RICO”) Act. Section 1962(c) prohibits “any person ... associated with any enterprise engaged in ... interstate ... commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” To convict Cree under § 1962(d), the government was required to prove, inter alia, that a RICO enterprise existed and that Cree agreed that he or a coconspirator would engage in a “pattern of racketeering activity.” Cree contests the evidence supporting these two-findings.

A RICO enterprise includes “any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). An informal association .of individuals constitutes a RICO enterprise when it is “a continuing unit that functions with a common purpose.” Boyle v. United Spates, 556 U.S. 938, 946, 948, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009); see also United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). Thus, an enterprise has “at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s, purpose.” Boyle, 556 U.S. at 946, 129 S.Ct. 2237.

Cree argues that the Mob was not a RICO enterprise. Members, according to Cree, had no shared purpose and were a “loose assembly of acquaintances,” committing crimes randomly and in their own interests.

Trial testimony, however, provided ample support for the jury’s finding that the Mob constituted a RICO enterprise. The Mob had several purposes: Members worked to promote the Mob, develop its reputation, and protect its territory and members. At one meeting, McArthur reminded those in attendance that “[tjhis ain’t about me. It ain’t about no individual person, man. It’s about us all.” For nearly two decades, the Mob operated as a coherent unit. Many members joined the Mob as teenagers and were in the gang for several years. The Mob had meetings, colors, signals, and symbols. Both written and unwritten rules governed members’ behavior. When a member violated one of the rules, Mob leaders meted out punishment,' often in the form of a physical assault at the hands of other members. The Mob also used a hierarchical leadership structure, and when one leader stepped down, another member was selected for the role.

Sufficient evidence also supported the jury’s finding that Cree agreed that he or a coconspirator would engage in a “pattern of racketeering activity.” Section 1961(1) labels dozens of federal and state offenses as racketeering activities, including “any act or threat involving murder ... or dealing in a controlled substance ..., which is chargeable under State law and punishable by imprisonment for more than one year.” A “ ‘pattern of racketeering activity’ requires at least two acts of racketeering activity, ... the last of which occurred within ten years ... after the commission of a prior act of racketeering activity.” 18 U.S.C. § 1961(5).

To establish a “pattern of racketeering activity,” the government also must prove two constituent elements: that the predicate acts of racketeering are related, and “that they amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). “Criminal acts are sufficiently related ... if they had the same or similar purposes, results, participants, victims or methods of commission, or if they were otherwise ‘interrelated by distinguishing characteristics’ as opposed to being ‘isolated events.’ ” United States v. Hively, 437 F.3d 752, 761-62 (8th Cir. 2006) (quoting H.J. Inc., 492 U.S. at 240, 109 S.Ct. 2893).

Continuity of racketeering activity, “or its threat, simpliciter,” is a “temporal concept.” H.J. Inc., 492 U.S. at 241-42, 109 S.Ct. 2893. One manner of proving continuity is open-ended continuity, which asks whether “the related predicates themselves involve a distinct threat of long-term racketeering activity, either implicit or explicit.” Id. at 242-43, 109 S.Ct. 2893. Open-ended continuity may be established by showing that the racketeering acts “include a specific threat of repetition extending indefinitely into the future.” Id.

Cree contends that the racketeering activity of which he was convicted, the charges relating to the shooting of LaDuke and drug distribution, were neither related to one another nor sufficient to show a threat of continued criminal activity. On this view, he thus never agreed to participate in a “pattern of racketeering activity.”

Cree’s arguments are unpersuasive. Evidence supported the jury’s finding that the LaDuke shooting and Cree’s drug distribution amounted to a pattern of racketeering activity. The acts were related, in that Cree, Wuori, and other Mob members participated in both crimes, and the acts represented a consistent desire to further the Mob’s activities. See United States v. Darden, 70 F.3d 1507, 1525 (8th Cir. 1995). Because these two acts “by .their very nature threaten repetition,” the jury also could find open-ended continuity. Hively, 437 F.3d at 761. Mob members were known for assaulting competing drug dealers or others believed to .pose a threat to the Mob’s interests. It is likely that members would, and testimony suggested they did in fact, continue these tactics after the LaDuke shooting and Cree’s arrest. See United States v. Delgado, 401 F.3d 290, 298 (5th Cir. 2005); United States v. Diaz, 176 F.3d 52, 93-94 (2d Cir. 1999). A reasonable jury, therefore, could convict Cree of conspiracy to participate in racketeering activity.

Cree next complains that there was insufficient evidence to convict him of conspiring to distribute and possess with intent to distribute controlled substances. But sufficient evidence supported this conviction as well. Testimony showed that Mob members were engaged in a drug conspiracy and that Cree knowingly participated in the conspiracy. See United States v. Ramirez, 350 F.3d 780, 783-85 (8th Cir. 2003). Mob members testified that Cree was present when Wuori cooked crack cocaine, and that Cree received distribution quantities of crack cocaine from Wuori on consignment that Cree then sold in the Cass Lake area. It was for the jury to judge the truthfulness of these witnesses, and witness credibility is virtually unre-viewable on appeal. A reasonable jury could convict Cree of the charge based on this evidence.

Cree’s last argument is that the evidence did not demonstrate his “complicity” in the LaDuke shooting, a finding necessary for his four convictions relating to that incident. Cree insists that he did not know Morris was going to shoot La-Duke. The record, however, shows that Cree was aware of the impending attack on LaDuke and assisted Morris in completing the crime. Cree discussed harming LaDuke with Morris and other members, and he was present when Wuori agreed to provide a gun to Morris in case Morris encountered LaDuke. And LaDuke testified that about fifteen minutes before the shooting, he twice observed Cree staring at him as Cree and another man drove past his location. It was the jury’s prerogative to determine LaDuke’s credibility.

Cree’s recounting of the day of the attack to fellow members further demonstrates his knowing participation in the incident. Cree told members that he had found locations that LaDuke frequented and saw LaDuke “slippiri” (ie., leaving himself vulnerable to attack) in one such location. Cree then retrieved a firearm and picked up Morris to “take care” of La-Duke. On this record, a reasonable jury could convict Cree of the charges relating to the LaDuke attack, and the district court properly denied Cree’s motion for judgment of acquittal.

Cree also argues that the district court should have granted his motion for a new trial because the verdict was against the weight of the evidence. In the district court, however, Cree did not move for a new trial based on the weight of the evidence; as a result, his claim is procedurally barred on appeal, and we need not consider it. United States v. Flynn, 196 F.3d 927, 932 (8th Cir. 1999). We thus affirm the judgment of the district court as to Cree.

B.

Morris raises three claims of error. Morris first avers that the district court wrongly denied his motion for judgment of acquittal because there was insufficient evidence to convict him of either attempted murder in aid of racketeering or assault with a dangerous weapon in aid of racketeering. See 18 U.S.C. §§ 1959(a), 2. Morris does not dispute the existence of a RICO enterprise engaged in racketeering activity that affected interstate commerce or that he assaulted and attempted to murder LaDuke with a firearm. Morris instead alleges that the government did not demonstrate that he attacked LaDuke for a purpose listed in the statute — in this case, to maintain or increase his position in the Mob — because there was not proof beyond a reasonable doubt that he was, in fact, a Mob member. See id. § 1959(a).

The evidence was sufficient for the jury to conclude that Morris was a Mob member and that he shot LaDuke to maintain or increase his status in the gang. Morris discussed shooting LaDuke with other members, and some of those members later assisted Morris in carrying out the attack. A former member testified that in 2010, Wuori introduced him to Morris “as if [Morris] was Fam,” a term members used to denote membership in the gang. While some members may not have been aware of Morris, witnesses attested that members often did not know everyone in the Mob due to the Mob’s large membership. Morris’s communications on the day of the shooting and during his subsequent incarceration further support a finding that he was a Mob member. Near the time of the shooting, Morris used a cellular telephone to call a telephone number at which both McArthur and Wuori were known to receive calls. While in prison, Morris contacted several Mob members via telephone and mail, including Cree, McArthur, and Wuori, and represented himself as a member of the Mob. And it is undisputed that members increased their standing in the gang by committing violent crimes. Thus, the jury reasonably decided that Morris attacked LaDuke to maintain or increase his position in the Mob.

Morris next asserts that the jury instructions on the § 1959(a) charges constructively amended the indictment. An indictment is constructively amended when the government or court alters the essential elements of an offense set forth in the indictment. United States v. Mariano, 729 F.3d 874, 880 (8th Cir. 2013). The indictment here charged that Morris attacked LaDuke “for the purpose of maintaining and increasing” his position in the Native Mob. Morris complains that the district court’s instruction on that element did not match the indictment, because it asked whether Morris assaulted LaDuke “to gain entrance to, or to maintain, or to increase his position” in the Mob. But Morris requested the precise jury instruction used b.y the district court, and he has therefore waived any claim of error based on an alleged constructive amendment. Id. at 880-82; Petschl v. United States, 369 F.2d 769, 774 (8th Cir. 1966).

Morris’s last argument is that the district court erred in ruling that his prior third-degree burglary convictions constituted violent felonies under the Armed Career Criminal Act. Morris was convicted for possession of a firearm as a previously convicted felon. See 18 U.S.C. § 922(g). This offense carries a maximum sentence of 120 months’ imprisonment. Id. ' § 924(a)(2). The Armed Career Criminal Act, however, provides for an enhanced sentence of 180 months to life in prison on a § 922(g) conviction, if the defendant “has three previous convictions ... for a violent felony.” See id. § 924(e)(1). Over Morris’s objection, the district court found that Morris had four prior “violent felony” convictions, three of which were for third-degree burglary in Minnesota, and that he was subject to the enhancement. The court thus imposed a 360-month sentence for Morris’s violation of § 922(g).

Morris contends on appeal that the Minnesota third-degree burglary statute, Minn. Stat. Ann. § 609.582, subd. 3, sets forth multiple, alternative versions of the crime, that at least one of the statute’s alternatives is not a violent felony, and that the district court should have applied the “modified categorical approach” to determine whether his convictions were violent felonies. We conclude that Morris is correct.

The Minnesota third-degree burglary statute provides that:

Whoever enters a building without consent and with intent to steal or commit any felony or gross misdemeanor while in the building, or enters a building without consent and steals or commits a felony or gross misdemeanor while in the building, ... commits burglary in the third degree and may be sentenced to imprisonment for not more than five years ....

Minn. Stat. Ann. § 609.582, subd. 3. “Enters a building without consent” includes either entering or remaining in a building without the owner’s consent. Id. § 609.581, subd. 4.

The Armed Career Criminal Act defines “violent felony” to include burglary that is “punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 924(e)(2)(B). To determine whether a pri- or burglary conviction is a violent felony, we typically apply the “categorical approach.” Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2247-48, 195 L.Ed.2d 604 (2016). In that analysis, we compare the elements of the statute under which the defendant was convicted with the “generic” definition of burglary set forth in Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). Only when the statute has the same or narrower elements as the generic crime does the prior conviction count as a violent felony. Id. But if the statute is divisible, setting forth “multiple, alternative versions of the crime,” and not all of the alternatives satisfy the generic definition, then we apply the “modified categorical approach” to decide which of the alternatives was the basis for the conviction. Id. at 2283-86.

Section 609.582, subd. 3, is divisible, so we must consider whether each statutory-alternative qualifies as a “violent felony.” The government argues that we have ruled already that convictions under either alternative in § 609.582, subd. 3, qualify as violent felonies. But the cases on which the government relies are inapposite. The decision in United States v. Sonczalla, 561 F.3d 842, 846 (8th Cir. 2009), concerned an earlier version of the third-degree burglary statute, enacted in 1986, that did not contain the second alternative in the current statute. See Minn. Stat. Ann. § 609.582, subd. 3 (1986). United States v. Constantine, 674 F.3d 985, 990 (8th Cir. 2012), did hold that § 609.582, subd. 3, “qualifies as a ‘violent felony’ under 18 U.S.C. § 924(e)(2)(B)(ii).” But Constantine cited Sonczalla, which involved the 1986 statute and thus addressed only one of the two statutory alternatives. Constantine also relied on precedent suggesting that burglary convictions qualified as violent felonies under the “residual clause” of § 924(e)(2)(B)(ii), id. but the Supreme Court later declared the residual clause unconstitutional. Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015). Because Constantine did not specify that a conviction under both of the alternatives in the current version of the Minnesota third-degree burglary statute qualified as a generic burglary under Taylor, we do not consider it controlling on the question.

The first alternative of § 609.582, subd. 3, forbids “enter[ing] a building without consent and with intent to steal or commit any felony or gross misdemeanor” while inside. Taylor defines “generic” burglary as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” 495 U.S. at 598, 110 S.Ct. 2143. Because the first alternative of the Minnesota statute contains all of the elements in the Taylor definition, convictions based on that alternative count as violent felonies.

The second alternative of the Minnesota statute provides that “whoever enters a building without consent and steals or commits a felony or gross misdemeanor” while inside commits third-degree burglary. That portion of the statute, however, does not include the element of “intent to commit a crime” at the time of the unlawful entry or remaining. See State v. Benedict, No. A13-1324, 2014 WL 2921869, at *2 (Minn. Ct. App. June 30, 2014). Whether the second alternative qualifies as a violent felony thus depends on when, under the definition of generic burglary, an offender must form the intent to commit a crime within the building.

The government contends that the generic definition of burglary is broad enough to encompass the second alternative under § 609.582, subd. 3. Taylor said that generic burglary includes “remaining in” a building with intent to commit a crime. 495 U.S. at 598, 110 S.Ct. 2143. The government argues that a person convicted under the second alternative for entering a building without consent and then later stealing or committing a felony or gross misdemeanor while in the building meets the “remaining in” aspect of Taylor’s definition. The offender .necessarily has “remained in” the building with intent to commit a crime, the argument goes, because he must have developed the requisite intent at some point while “remaining in” the building.

We reject this reading of Taylor. Taylor provides that burglary occurs when an offender enters or remains in a building or structure “with intent to commit a crime.” Id. (emphasis added). The most natural reading of Taylor and the sources on which it relied show that a generic burglary requires intent to commit a crime at the time of the unlawful or unprivileged entry or the initial “remaining in” without consent. See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.13(b), (e), at 468, 473-74 & n.101 (1986) (noting that the “intent to commit a crime within need only exist at the time the defendant unlawfully remained within”); Model Penal Code § 221.1, cmt. (1), (3) (Am. Law Inst. 1980) (referencing the “purpose that accompanies the entry,” and “the purpose that must accompany the intrusion”).

The act of “remaining in” a building, for purposes of generic burglary, is not a continuous undertaking. Rather, it is a discrete event that occurs at the moment when a perpetrator, who at one point was lawfully present, exceeds his license and overstays his welcome. See LaFave & Scott, supra, § 8.13(b), (e), at 467-68 & n.47, 473-75 (distinguishing between burglary statutes that require intent to be contemporaneous with the unlawful entry or remaining and those providing “that actual commission of the offense within is an alternative basis for conviction”). If the defendant does not have the requisite intent at the moment he “remains,” then he has not committed the crime of generic burglary. The government’s reading of Taylor would render the “unlawful entry” element of generic burglary superfluous, because every unlawful entry with intent would become “remaining in” with intent as soon as the perpetrator enters.

Our understanding of Taylor, requiring the existence of “contemporaneous intent,” is consistent with the views of the Fifth and Ninth Circuits. See United States v. Rerrera-Montes, 490 F.3d 390, 392 & n.1 (5th Cir. 2007); United States v. Bonat, 106 F.3d 1472, 1475-76 (9th Cir. 1997). A divided panel of the Fourth Circuit reached a contrary conclusion in United States v. Bonilla, 687 F.3d 188, 192-94 (4th Cir. 2012). The Bonilla panel reasoned that even when a state burglary statute does not require contemporaneous intent, it corresponds “in substance” to Taylor*s definition of generic burglary. Id. (quotation omitted): A dissenting judge disagreed, concluding that generic burglary as defined by Taylor includes a requirement of contemporaneous intent, and that a state statute without that element does not qualify as generic burglary. Id. at 196-98 (Traxler, C.J., dissenting). For the reasons discussed, we believe the Bonilla dissent, along with the Fifth and Ninth Circuits, has the better view. With respect, we also believe the Fourth Circuit’s concern that a requirement of contemporaneous intent is “too rigid,” 687 F.3d at 194, is at odds with the exacting standard applied by the Supreme Court in its recent decisions in this area. See, e.g., Mathis, 136 S.Ct. at 2251-54, 2257; id. at 2270-71 (Alito, J., dissenting); Descamps, 133 S.Ct. at 2283-86, 2293.

Because a conviction under the second alternative of §609.582, subd. 3, does not require that the defendant have formed the “intent to commit a crime” at the time of the nonconsensual entry or remaining in, it does not qualify as a violent felony. Section 609.582, subd. 3, thus includes at least one alternative that does not satisfy Taylor. The district court should have applied the modified categorical approach to ascertain which alternative formed the basis of Morris’s third-degree burglary convictions and then to decide whether' the convictions were violent felonies. See Des-camps, 133 S.Ct. at 2283-85. Accordingly, we vacate Morris’s sentence and remand for further proceedings.

C.

1.

McArthur raises three claims of error on appeal. All three involve his two convictions for aiding and abetting the use or carrying of a firearm during and in relation to, or the possession of a firearm in furtherance of, a crime of violence. See 18 U.S.C. §§ 924(c), 2. He first argues that the district court violated his rights under the Double Jeopardy Clause by imposing consecutive sentences for those convictions, because the convictions arose from one predicate offense, conspiracy to participate in a pattern of racketeering activity. Although our circuit precedent rejects this claim, see, e.g., Hamberg v. United States, 675 F.3d 1170, 1172-73 (8th Cir. 2012); United States v. Lucas, 932 F.2d 1210, 1222-23 (8th Cir. 1991), the government nonetheless asks us to vacate one of McAr-thur’s convictions based on an internal Justice Department policy to refrain from pursuing multiple § 924(c) charges in this circumstance. The relevant policy provides that each § 924(c) charge in an indictment should be based on a separate predicate offense. See Brief for the United States in Opposition to Petition for Writ of Certiorari, Carter v. United States, 537 U.S. 1187 (2002), (No. 02-655), 2002 WL 32133544, at *8. The United States Attorney evidently charged McArthur in violation of Department policy and now requests that we vacate one of the § 924(c) convictions so that the government may belatedly comply with the policy.

The Supreme Court addressed a comparable situation in Rinaldi v. United States, 434 U.S. 22, 29, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977) (per curiam), where the government prosecuted a defendant in violation of its Petite policy against multiple prosecutions by separate sovereigns for the same act. See Petite v. United States, 361 U.S. 529, 530-31, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960) (per curiam). Although the conviction did not violate the Double Jeopardy Clause, see Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), the Court held that the district court should have granted the government’s belated motion to dismiss the indictment. The Court concluded that the “overriding purpose of the Petite policy is to protect the individual from any unfairness associated with needless multiple prosecutions,” and that the defendant “should receive the benefit of the policy whenever its application is urged by the Government.” Rinaldi, 434 U.S. at 31, 98 S.Ct. 81. The policy here, although not premised on the “dual sovereignty principle inherent in our federal system,” does seek “to protect interests ... embraced by the Double Jeopardy Clause.” Id. at 29, 98 S.Ct. 81. The Justice Department has opted, as a matter of policy, to follow the view of other circuits that “the imposition of consecutive sentences under subsection 924(c) for using multiple weapons during a single crime of violence would impinge upon fundamental ‘double jeopardy’ principles.” United States v. Peña-Lora, 225 F.3d 17, 32 (1st Cir. 2000); see U.S. Dep’t of Justice, Office of Legal Education, Federal Firearms Manual § 4.25, at 192-93 (3d ed. 2001) (attached as Appendix B to the Brief for the United States in Opposition to Petition for Writ of Certiorari in Carter). We see no material distinction between this case and Rinaldi, and therefore grant the government’s request to vacate McArthur’s conviction on Count 11.

McArthur next contends that the jury instructions as to Count 10, the remaining § 924(c) charge, did not comply with Rosemond v. United States, — U.S. —, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014). This charge concerned the shooting at the Raisch residence. A person who “aids, abets, counsels, commands, induces or procures” the commission of a federal offense “is punishable as a principal.” 18 U.S.C. § 2. To convict a defendant of aiding and abetting a § 924(c) offense, the government must prove: (1) that a predicate crime of violence or drug trafficking was committed; (2) that a gun was used in a prohibited manner during the predicate offense; (3) that the defendant facilitated the firearm use, the predicate crime, or both; and (4) that the defendant had advance knowledge that one of his confederates would use or carry a gun during and in relation to the commission of the predicate crime, or would possess a gun in furtherance of the predicate offense. Rosemond, 134 S.Ct. at 1245, 1247, 1248-51.

Although the Supreme Court decided Rosemond after McArthur’s trial, we apply the case retroactively to cases on direct review. Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). But because McArthur did not object in the district court to the instructions he now challenges, we review only for plain error. Id. at 466, 117 S.Ct. 1544. To obtain relief, McArthur must show that there was an error that was obvious, rather than subject to reasonable dispute, and that the error affected his substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id. at 466-68, 117 S.Ct. 1544; see Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

McArthur complains that the district court’s instructions for the charges of aiding and abetting a violation of § 924(c) did not require the jury to find that he had advance knowledge that a confederate would use or carry a firearm during the Raisch shooting. The elements instruction for aiding and abetting Count 10 required the jury to find beyond a reasonable doubt that McArthur “must ... have known that someone was going to knowingly use or carry a firearm during or in relation to, or possess a firearm in furtherance of, the crime of conspiracy to participate in a racketeering enterprise.” McArthur argues that the instruction permitted the jury to convict him based on a finding that he had advance knowledge that a coconspirator would use, carry, or possess a firearm at some point during the conspiracy in general, as opposed to advance knowledge that a coconspirator would use, carry, or possess a firearm during the attack on the Raisch home.

The government does not address Mc-Arthur’s premise that what he refers to as “general” knowledge is insufficient to support a § 924(c) conviction under an aiding and abetting theory of liability. Rosemond says that the defendant must know in advance that a confederate will carry a gun during commission of the predicate crime. 134 S.Ct. at 1245, 1249-51. The predicate crime here was conspiracy to participate in racketeering activity, not a substantive offense of shooting at the Raisch home. See United States v. Hinds, 435 Fed.Appx. 832, 835-36 (11th Cir. 2011) (per curiam) (upholding a conviction for aiding and abetting possession of firearms in furtherance of a drug conspiracy where the defendant provided firearms to his coconspira-tors for their use in furtherance of the conspiracy); cf. Pinkerton v. United States, 328 U.S. 640, 645-48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Bailey, 235 F.3d 1069, 1074 (8th Cir. 2000). But the government defends the conviction solely on the ground that the jury instructions adequately elicited a finding on whether McArthur had advance knowledge that a confederate would use a firearm in the Raisch shooting. Because we deem that avenue sufficient to sustain the judgment, we need not address whether McAr-thur’s premise is correct.

Assuming, therefore, that Rosemond required McArthur to have advance knowledge that a firearm would be used during the Raisch shooting, the jury instructions about which McArthur complains were not plainly erroneous. The jury was instructed that to convict McArthur for aiding and abetting in the commission of Count 10, McArthur “must ... have known that someone was going to knowingly use and carry a firearm during and in relation to, or possess a firearm in furtherance of, the crime of conspiracy to participate in a racketeering enterprise.” The jury knew, however, that Count 10 charged that “on or about August 24, 2010, Defendant Mc-Arthur ... knowingly used and carried a firearm during and in relation to, and possessed a firearm in furtherance of, a crime of violence.” The instruction listing the elements required by § 924(c) likewise directed the jury that a necessary element of the charge was that “on or about August 24, 2010, the defendant, or another person aided and abetted by the defendant, did knowingly use or carry a firearm during and in relation to, or possess a firearm in furtherance of, that crime.” And the jury was told that it was considering whether McArthur “aided and abetted in the commission of Count 10.” Given that the references to the date of the Raisch shooting focused the jury on the specific firearm use on which Count 10 was premised, there is at least a reasonable dispute about whether the instructions, taken as a whole, fairly and adequately submitted to the jury the “advance knowledge” question. Any error is thus not plain.

We also conclude that the district court did not err in denying McArthur’s motion for judgment of acquittal on Count 10. There was evidence that McArthur wanted to “eliminate [Daniels] by any means,” and that he was part of the group that decided to find Daniels and “shoot him.” Members involved in those conversations then mistakenly shot into a home in which they believed Daniels was staying; they informed McArthur of the mishap. Days later, members attacked the Raisch residence with Daniels as the target. Based on this evidence, along with testimony concerning the Mob’s propensity for firearms and McArthur’s decision-making authority as Chief, a reasonable jury could have found him guilty on Count 10.

2.

Having concluded that one of Mc-Arthur’s convictions should be vacated on the government’s request, we must determine the appropriate remedy. The district court sentenced McArthur to a total of 516 months’ imprisonment, but 300 months were attributable to the second § 924(c) conviction that will be vacated. The government contends that under the “sentencing package” doctrine, we should vacate McArthur’s sentences on all of his convictions and remand for resentencing. McAr-thur responds that the court should vacate only the sentence for Count 11, and remand with instructions to leave the sentences on his remaining convictions unchanged. Under that approach, McArthur’s total sentence would be reduced from 516 months to 216 months’ imprisonment.

Under the sentencing package doctrine, we “may vacate the entire sentence on all counts so that, on remand, the trial court can reconfigure the sentencing plan to ensure that it remains adequate to satisfy the sentencing factors in 18 U.S.C. § 8553(a).” Greenlaw v. United States, 554 U.S. 237, 253, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008); see United States v. Bruguier, 735 F.3d 754, 764 (8th Cir. 2013) (en banc). The doctrine often arises in cases-involving “multicount indictments and a successful attack by a defendant on some but not all of the counts of conviction.” Greenlaw, 554 U.S. at 253, 128 S.Ct. 2559.

This is an appropriate case for application of the sentencing package doctrine. McArthur was charged in a multicount indictment and convicted of several crimes. He has successfully challenged one of those convictions on appeal. When the district court determined McArthur’s sentence on the remaining counts, the court acted on the assumption that he would receive a 300-month consecutive sentence for Count 11. With that sentence vacated, the district court should have an opportunity to decide whether a term of 216 months’ imprisonment is sufficient to comply with the purposes set forth in 18 U.S.C. § 3553(a)(2). See United States v. Cureton, 739 F.3d 1032, 1045 (7th Cir. 2014).

McArthur claims that the sentencing package doctrine applies only when the vacatur of one conviction permits the district court at resentencing to apply a new enhancement under the advisory sentencing guidelines. See Gardiner v. United States, 114 F.3d 734, 736 (8th Cir. 1997). But Gardiner simply mentioned that possibility as one factor favoring resentencing, and our precedent should not be read as narrowly as McArthur suggests. In Bru-guier, for example, this court vacated all of the defendant’s sentences and remanded for resentencing without purporting to satisfy the limitation that McArthur proposes. 735 F.3d at 764. McArthur also argues that the district court may not alter his sentences on his remaining convictions without violating the Double Jeopardy Clause. A defendant, however, has no expectation of finality in his sentence until an appeal is concluded, and the Double Jeopardy Clause “does not bar resentencing on all counts to carry out the sentencing judge’s original intent.” United States v. Evans, 314 F.3d 329, 333 (8th Cir. 2002).

* * *

For the foregoing reasons, we affirm the judgment as to Cree. We affirm Morris’s convictions but vacate his sentence and remand for further proceedings. We vacate McArthur’s conviction on Count 11, affirm his remaining convictions, vacate McAr-thur’s entire sentence, and remand for re-sentencing.


source: Caselaw Access Project

author: COLLOTON, Circuit Judge.

license: Public Domain

text:
    Kong Meng XIONG, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent. National Immigration Project of the National Lawyers Guild; Immigrant Law Center of Minnesota; Hennepin County Public Defender’s Office; Immigrant Legal Resource Center, Amici on Behalf of Petitioner.
    No. 16-1428
    United States Court of Appeals, Eighth Circuit.
    Submitted: July 26, 2016
    Filed: September 8, 2016

      Counsel who represented the petitioner — Nadia Anguiano-Wehde, John Brun-ing, and Charles Barrera Moore all certified student attorneys at the University of Minnesota Law School in Minneapolis, MN. Benjamin Richard Casper and Julia Decker were Supervising Attorneys at the University of Minnesota Law School in Minneapolis, MN.
    An amici brief was filed by National Immigration Project of the National Lawyers Guild, Immigrant Law Center of Minnesota, Hennepin County Public Defender’s Office, and Immigrant Legal Resource Center in support of petitioner. Counsel who represented the amici was Sejal Zota of Boston, MA.
    Before SMITH, ARNOLD, and COLLOTON, Circuit Judges.
   COLLOTON, Circuit Judge.

Kong Meng Xiong petitions for review of an order of the Board of Immigration Appeals concluding that he is ineligible for cancellation of removal under 8 U.S.C. § 1229(b), because he had sustained a pri- or conviction for an aggravated felony. 8 U.S.C. § 1227(a)(2) (A) (iii). “Aggravated felony” is defined in 8 U.S.C. § 1101(a)(43). The Board upheld a determination of an immigration judge that Xiong’s prior conviction for second-degree burglary under Minn. Stat. § 609.582, subd. 2(a)(1) is an aggravated felony, because it is a “crime of violence” within the meaning of § 1101(a)(43)(F).

Section 1101(a)(43)(F) incorporates the definition of “crime of violence” in 18 U.S.C. § 16. That definition encompasses an offense “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 16(b). The Board concluded that Xiong’s Minnesota burglary conviction qualified as a crime of violence under § 16(b) and declined to consider Xiong’s contention that the definition is unconstitutionally vague. A.R. 4. According to the Board, “it is well settled we do not address the constitutionality of the laws we administer.” Id.

Xiong filed in this court a petition for review and an opening brief in which his lead argument challenges the constitutionality of 18 U.S.C. § 16(b). He contends that two circuits have declared the provision unconstitutionally vague in light of the Supreme Court’s decision in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), concerning 18 U.S.C. § 924(e)(2)(B)(ii). See United States v. Vivas-Ceja, 808 F.3d 719, 722-23 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015); see also Shuti v. Lynch, No. 15-3835, 2016 WL 3632539, at *5-8 (6th Cir. July 7, 2016). He urges this court to follow suit. But see United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 4169127, at *4-5 (5th Cir. Aug. 5, 2016); cf. United States v. Prickett, No. 15-3486, 2016 WL 4010515, at *1 (8th Cir. July 27, 2016).

Before filing a responsive brief, the government moved to remand the case to the Board for further proceedings. To evaluate the motion, it is necessary to review briefly the course of proceedings before the agency.

In front of the immigration judge, the government argued that Xiong was ineligible for cancellation of removal as an aggravated felon on two independent grounds: a prior conviction for a “crime of violence” under § 1101(a)(43)(F) and a prior conviction for “burglary” under § 1101(a)(43)(G). The immigration judge ruled that second-degree burglary in Minnesota is a crime of violence under § 1101(a)(43)(F) and said that the court “need not reach the issue of whether the burglary conviction is also an aggravated felony under INA § 101(a)(4S)(G),” ie., 8 U.S.C. § 1101(a)(43)(G). A.R. 78 n.2.

Xiong appealed the Board. In its response brief to the Board, the government argued that the immigration judge correctly ruled that Xiong’s burglary conviction was a crime of violence under § 1101(a)(43)(F). Alternatively, the government maintained that Xiong’s burglary conviction also constituted a “burglary” under § 1101(a)(43)(G). A.R. 18-19. The Board upheld the immigration judge’s decision on “crime of violence” under § 1101(a)(43)(F) and did not address “burglary” under § 1101(a)(43)(G).

In its motion to remand, the government argues that the Board should consider whether a second-degree burglary in Minnesota constitutes a generic “burglary” within the meaning of § 1101(a)(43)(G). We conclude that the suggestion of a remand is well taken.

“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). “This rule must bind not only the courts, but also the administrative agencies which they review, for if it did not, such agencies, ‘by unnecessarily deciding constitutional issues, would compel the courts to resolve such issues as well.’ ” Gutierrez v. INS, 745 F.2d 548, 550 (9th Cir. 1984) (Kennedy, J.) (quoting Tung Chi Jen v. INS, 566 F.2d 1095, 1096 (9th Cir. 1977)).

As the appeal comes to us, Xiong argues that we must consider the constitutionality of the definition of “crime of violence” in 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b). Although the government argued before the immigration judge and the Board that Xiong’s burglary conviction also qualified as an aggravated felony under § 1101(a)(43)(G), we may not consider whether to affirm the denial of relief on that ground, because the Board did not decide the issue. See SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943). Rather than allowing the Board’s treatment of the case to force a decision on a constitutional question that might be unnecessary, we conclude that a remand is warranted for the Board to consider in the first instance whether Xiong’s burglary conviction is an aggravated felony under § 1101(a)(43)(G). See Gutierrez, 745 F.2d at 550. We express no view on the merits of the issue, but the Board should decide it one way or the other. Xiong may then file a renewed petition for review.

For these reasons, the government’s motion to remand is granted, and the case is remanded to the Board of Immigration-Appeals for further proceedings consistent with this opinion.


author: MURPHY, Circuit Judge. BRIGHT, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee v. Corey Vampelt FOGG, Defendant-Appellant
    No. 15-3078
    United States Court of Appeals, Eighth Circuit.
    Submitted: June 16, 2016
    Filed: September 8, 2016
    Rehearing and Rehearing En Banc Denied Oct. 31, 2016.

      Counsel who presented argument on behalf of the appellant was Karen E. Mohrl-ant, of Minneapolis, MN. The following attorney(s) appeared on the appellant brief; F. Clayton Tyler, of Minneapolis, MN.
    Counsel who appeared on the brief and presented argument on behalf of the ap-pellee was Thomas Calhoun-Lopez, AUSA, of Minneapolis, MN.
    Before MURPHY, BRIGHT, and SHEPHERD, Circuit Judges.
   MURPHY, Circuit Judge.

A jury found Corey Fogg guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court enhanced his sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based on his three prior violent felony convictions and sentenced him to 235 months imprisonment. Fogg appeals, arguing that the district court abused its discretion in excluding evidence during his trial and that his prior conviction for attempted drive by shooting is not a violent felony under the ACCA. We affirm Fogg’s conviction and sentence.

I.

On May 30, 2014 two police officers were dispatched to north Minneapolis on a report that two men had been seen with a gun. When the police approached the men, one of them fled, later identified as Corey Fogg. Officer Richard Walker chased Fogg on foot into an alley where he pulled out what appeared to be a gun and looked back toward the officer. Walker then fired two shots at Fogg, striking him in the foot and lower back. Walker testified that as Fogg fell he threw the object in his hand over a fence and into an adjacent yard. Police officers later found a handgun in that yard.

Fogg was indicted on one count of being a felon in possession of a handgun. The government filed a motion in limine seeking to exclude officer. Walker’s alleged use of excessive force while Fogg moved to admit evidence of Walker’s alleged use of such force in previous cases. The district court allowed Fogg to present evidence that an officer who uses excessive force can face serious consequences, but any evidence attempting to show Walker’s alleged use of excessive force in previous cases was excluded under Rule 403. The jury found Fogg guilty.-

The presentence report concluded that Fogg was an armed career criminal due to his prior convictions for first degree manslaughter, simple robbery, and attempted drive by shooting. Fogg objected to this finding at sentencing, arguing that his attempted drive by shooting conviction under Minn. Stat. § 609.66, subd. le did not qualify as a violent felony under the ACCA. The district court rejected this argument, determined that Fogg was an armed career criminal, and sentenced him to 235 months imprisonment.

II.

Fogg argues that the district court abused its discretion by excluding evidence under Rule 403 of prior allegations of excessive force by officer Walker. We review evidentiary rulings for abuse of discretion. United States v. Condon, 720 F.3d 748, 754 (8th Cir. 2013). A district court’s application of Rule 403 is entitled to great deference unless it “unfairly prevents] a party from proving” its case. Id. (internal quotation marks omitted). Fogg contends that this evidence was relevant to his defense theory that the officers had planted a gun in the yard to cover up then-own excessive use of force. The court did not abuse its discretion in excluding this evidence because Fogg was entitled to present his defense theory.

III.

Fogg next argues that the district court erred by concluding that his prior conviction under Minnesota’s drive by shooting statute, Minn. Stat. § 609.66, subd. le, qualifies as a violent felony under the force clause of the ACCA. The ACCA requires a mandatory minimum fifteen year sentence if a defendant has been convicted as a felon in possession of a firearm “and has three previous convictions ... for a violent felony.” 18 U.S.C. § 924(e)(1). A prior conviction “cannot qualify as an ACCA predicate offense if its elements are broader than,” the definition of a “violent felony.” See Mathis v. United States, —— U.S. ——, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604 (2016). A violent felony under the ACCA’s force clause must have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).

A.

Fogg first contends that the drive by shooting statute is not an ACCA violent felony because it does not criminalize the use of force “against the person of another.” See 18 U.S.C. § 924(e)(2)(B)(i). We review this issue de novo. See United States v. Cole, 778 F.3d 1055, 1055 (8th Cir. 2015). In determining whether a prior conviction’s elements are broader than the ACCA’s definition of “a violent felony, courts should start with the formal categorical approach and look only to the fact of conviction and the statutory definition of the prior offense.” See United States v. Schaffer, 818 F.3d 796, 797 (8th Cir. 2016) (internal quotation marks omitted). When a “statute criminalizes both conduct that does and does not qualify as a violent felony and the statute is divisible, we apply the modified categorical approach and may review certain judicial records to identify which section of the statute supplied the basis for a defendant’s conviction.” United States v. Headbird, 832 F.3d 844, 846, No. 15-3718, 2016 WL 4191186, at *1 (8th Cir. Aug. 9, 2016) (internal quotation marks omitted).

We begin our analysis by determining the elements of Fogg’s predicate offense of drive by shooting. A person is guilty of drive by shooting under subdivision 1e(a) if “while in or having just exited from a motor vehicle, [he] recklessly discharges a firearm at or toward another motor vehicle or a building.” Minn. Stat. § 609.66, subd. 1e(a). A conviction under subdivision 1e(a) is a felony with a maximum punishment of three years imprisonment, but the maximum penalty is increased to twenty years imprisonment under subdivision 1e(b) if the defendant discharged the firearm “at or toward a person, or an occupied building or motor vehicle” Id. subd. 1e. A review of Fogg’s plea hearing transcript shows that he was convicted under subdivision 1e(b) because his offense involved firing a gun at a person. See United States v. Vinton, 631 F.3d 476, 485 (8th Cir. 2011).

In State v. Hayes, 826 N.W.2d 799, 803-05 (Minn. 2013), the Minnesota Supreme Court discussed the relationship between subdivision 1e(a) and 1e(b). The court concluded that subdivision 1e(b) is not a “separate, aggravated offense” which can be charged by itself, rather “subdivision 1e(b) operates only when all of the elements in subdivision 1e(a) have been satisfied.” Id. at 804-06. The Hayes court adopted the straightforward reading of Minn. Stat. § 609.66 that “subdivision 1e(b) provides for a sentence enhancement when a person, while committing a drive-by shooting [under subdivision 1e(a) ], discharges a firearm at or toward an occupied building, an occupied motor vehicle, or person.” 826 N.W.2d at 804.

Because subdivision 1e(a) and 1e(b) are linked to each other, we must determine whether subdivision 1e(b) supplies an additional “element” to subdivision 1e(a) in cases where the state is attempting to impose a higher fine or increase the statutory maximum. See 18 U.S.C. § 924(e)(2)(B)(I). An element of a crime is something “the prosecution must prove to sustain a conviction,” meaning either something the jury must find beyond a reasonable doubt or something the defendant must admit during a guilty plea. Mathis, 136 S.Ct. at 2248 (internal quotation marks omitted). The United States Supreme Court has held that “when the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.” Apprendi v. New Jersey, 530 U.S. 466, 494 n.19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Subdivision le(b) is thus considered an additional element to subdivision le(a) because it increases the statutory maximum punishment for a drive by shooting from three years to twenty years. See Mathis, 136 S.Ct. at 2256 (noting that “[i]f statutory alternatives carry different punishments, then under Apprendi they must be elements” under the ACCA).

The dissent argues that subdivision 1e(b) is not an element because Hayes labeled that subdivision a “sentence-enhancement provision.” 826 N.W.2d at 805. The dissent misreads Hayes. The court used the phrase “sentence-enhancement provision” only as a label to distinguish between two rival interpretations of the statute. Id. at 804-05. It went on to conclude that Hayes’s conviction for first degree murder while committing a drive by shooting should be reversed because the state had not established the elements of subdivision 1e(a), even though it had established the elements of subdivision 1e(b). Id. at 804-06. The court was not considering the application of Apprendi to the Minn. Stat. § 609.66. See 826 N.W.2d at 799-808. If it had, it would have concluded that subdivision le(b) is an element because the Minnesota Supreme Court has stated in no uncertain terms that a sentencing enhancement that increases the statutory maximum term of imprisonment must either be “found by a jury beyond a reasonable doubt” or admitted by the defendant. State v. Dettman, 719 N.W.2d 644, 649 (Minn. 2006); see also State v. Shattuck, 704 N.W.2d 131, 153 n.4 (Minn. 2005) (citing Apprendi, 530 U.S. at 494 n.19, 120 S.Ct. 2348).

Following Mathis and Hayes we conclude that subdivision 1e(b) of Minnesota’s drive by shooting offense contains the following elements: 1) the defendant “was in or had just exited a motor vehicle”; 2) the defendant “recklessly discharged a firearm at or toward another motor vehicle or a building”; and 3) the defendant fired “at or toward a person, or an occupied building or motor vehicle.” See Hayes, 826 N.W.2d at 806; Minn. Stat. § 609.66, subd. 1e; Minn. Jury Instruction Guides- — -Criminal (CRIMJIG) § 32.04 (2016). In determining whether subdivision 1e(b)’s elements are broader than the definition of a violent felony under the ACCA, we begin with the formal categorical 'approach. See Schaffer, 818 F.3d at 797.

It is an open question in our circuit whether a statute that criminalizes the discharge of a firearm toward an occupied building or motor vehicle qualifies as a violent felony under the force clause. See United States v. Jordan, 812 F.3d 1183, 1186-87 (8th Cir. 2016) (concluding that a statute criminalizing conduct that creates “a substantial danger of death or serious physical injury” does not qualify as a violent felony); see also United States v. Parral-Dominguez, 794 F.3d 440, 444-46 (4th Cir. 2015); United States v. Jaimes-Jaimes, 406 F.3d 845, 849-51 (7th Cir. 2005). Since the statute potentially “criminalizes both conduct that does and does not qualify as a violent felony and the statute is divisible, we apply the modified categorical approach ... to identify which section of the statute supplied the basis for” Fogg’s conviction. See Headbird, 832 F.3d at 846, 2016 WL 4191186, at *1 (internal quotation marks omitted).

A review of Fogg’s guilty plea record reveals that he was convicted of firing “at or toward a person” under subdivision 1e(b) because he admitted that he had “pulled a gun on [his victim] and attempted to shoot him.” Fogg’s conviction thus involved the use of force “against the person of another.” See 18 U.S.C. § 924(e)(2)(B)(i).

B.

Fogg also argues that Minnesota’s drive by shooting statute does not qualify as a violent felony because it only criminalizes reckless conduct as opposed to that which is intentional or purposeful. The government claims that our review should be for plain error because Fogg did not raise this specific argument before the district court. Nevertheless, Fogg argued at sentencing that Minnesota’s drive by shooting statute did not qualify as a violent felony under the force clause. At that time he explained his basis for that argument was that the statute does not criminalize the use of force “against the person of another.” We review de novo his “more fully articulated argument[]” on appeal. See United States v. Ossana, 638 F.3d 895, 898 & n.2 (8th Cir. 2011).

Neither our court nor the Supreme Court has decided whether a statute criminalizing the reckless discharge of a firearm can qualify as a violent felony under the ACCA’s force clause. The Supreme Court has considered this issue, however, when analyzing the similarly worded force clause in 18 U.S.C. § 921 (a) (33) (A) (ii) which defines a misdemeanor crime of violence as one involving the “use ... of physical force.” See Voisine v. United States, — U.S. —, 136 S.Ct. 2272, —, 195 L.Ed.2d 736 (2016). The Court held that crimes requiring a mental state of recklessness may qualify as crimes of violence under the force clause because “the word ‘use’ does not demand that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so.” Id. at 2279. Reckless conduct thus constitutes a “use” of force under the ACCA because the force clauses in 18 U.S.C. § 921(a)(33)(A)(ii) and the ACCA both define qualifying predicate offenses as those involving the “use ... of physical force” against another. Compare 18 U.S.C. § 924(e)(2)(B)(i), with 18 U.S.C. § 921(a)(33)(A)(ii); see also United States v. Rice, 813 F.3d 704 (8th Cir. 2016) (applying the Supreme Court’s analysis of 18 U.S.C. § 921 (a)(33)(A)(ii) to the ACCA’s force clause).

Since Fogg’s prior conviction of drive by shooting required a mens rea of recklessness, Minn. Stat. § 609.66, subd. 1e(b), it qualified as a violent felony under the ACCA’s force clause.

IV.

For these reasons we affirm Fogg’s conviction and sentence.

BRIGHT, Circuit Judge,

concurring in part and dissenting in part.

I concur with the majority that the district court did not abuse its discretion by excluding evidence under Fed. R. Civ. P. 403. But the majority improperly concludes recent Supreme Court decisions undercut Corey Fogg’s (Fogg) arguments regarding the application of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) sentencing enhancement. I disagree with the majority’s conclusion and respectfully dissent.

ANALYSIS

In this case, we face the question of whether the state or federal courts have the ultimate authority to set forth the elements of a state-law crime when analyzing proposed ACCA predicate offenses. Basic principles of federalism dictate that a state supreme court’s interpretation of a state-law crime controls. Because a state supreme court’s interpretation of a state-law crime controls, the majority’s application of the modified-categorical approach is inappropriate and we should remand for resentencing consistent with this dissenting opinion.

A. Whether a State Supreme Court’s Determination of the Elements of a State-Law Crime Controls When Assessing Proposed ACCA Predicate Offenses.

Since the founding of the United States, the principle that federal courts must accept a state supreme court’s interpretation of state statutes has been “universally re-cognised” as necessary for the functioning of American federalism. Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 159-60, 6 L.Ed. 289 (1825). “[S]tate courts are the ultimate expositors of state law,” Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (emphasis added), and “ ‘a fixed and received construction’ of [a] statute[ ] of a State in its own courts” becomes “a part of the statute[ ],” Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 611, 22 L.Ed. 429 (1874) (emphasis added).

The Supreme Court affirmed this precedent’s application to the analysis of state-law crimes under the ACCA. In Johnson v. United States, the Supreme Court held in no uncertain terms that, for the purpose of the ACCA, federal courts are “bound by” a state supreme court’s “interpretation of state law, including its determination of the elements.” 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (emphasis added). The Supreme Court based its holding on the principle that federal courts do not have “any authority to place a construction on a state statute different from the one rendered by the highest court of the State.” Johnson v. Fankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997) (emphasis added), cited favorably in, Johnson, 559 U.S. at 138, 130 S.Ct. 1265, 176 L.Ed.2d 1.

The Supreme Court’s recent decision in Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016)— reversing this Court and narrowing the number of offenses that qualify as a “violent felony”' — did not overturn the Johnson holding. In Mathis, the , Supreme Court held that when “a state court decision definitively” sets forth the elements of the offense, “a sentencing judge need only follow” the ruling of the state supreme court. Id. at 2256 (emphasis added). To support this assertion, the Supreme Court cited its decision in Schad v. Arizona, 501 U.S. 624, 636, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality opinion). Id. There, the Supreme Court held that in cases “involving state criminal statutes” federal courts “are not free to substitute [their] own interpretations of states statutes for those of a State’s courts.” Schad, 501 U.S. at 636, 111 S.Ct. 2491, 115 L.Ed.2d 555.

In conflict with this precedent, the majority cites dicta from Mathis to conclude a state supreme court’s decision regarding the elements of state-law crimes does not control when analyzing proposed ACCA predicate offenses. Instead, the majority concludes that, when this Court could interpret the elements differently than the state supreme court through the application of the Sixth Amendment standard set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the federal court’s application of Apprendi controls. The majority misreads Mathis.

After holding that the modified-categorical approach only applies to a statute with divisible elements, the Mathis court articulated ways a sentencing judge could determine whether a list of items in a state statute are elements of the offense. Mathis, 136 S.Ct. at 2256-57, 195 L.Ed.2d 604. The first method articulated, and ultimately applied, by the Supreme Court was the “easy” case where “a state court decision definitively answer[ed] the question.” Id. at 2256. In this instance, according to the Supreme Court, “a sentencing judge need only follow” the ruling of the state supreme court to determine the elements of the offense. Id.

To be sure, the Mathis court provided alternative ways of assessing whether listed items in a state statute are elements. Id. at 2256-57. The list included: (1) finding listed items are elements under Ap-prendi “[i]f statutory alternatives carry different punishments”; (2) finding listed items are not elements if merely “ ‘illustrative examples’ (3) finding listed items are elements when a statute indicates they “must be charged”;'or (4) looking at the record of the prior conviction to determine how the prosecution charged the defendant. Id.- The Supreme Court indicated federal judges can use any of the permissible methods to determine the elements of an offense, id. but did not direct federal judges to use these methods to “place a construction on a state statute different from the one rendered by the highest court of the State,” Fankell, 520 U.S. at 916, 117 S.Ct. 1800, 138 L.Ed.2d 108.

In light of this precedent, Fogg presents this Court with the “easy” case where the Minnesota Supreme Court “definitively” set forth the elements of the offense. Mathis, 136 S.Ct. at 2256, 195 L.Ed.2d 604.

B. Whether Minnesota’s Drive-By Shooting Statute Is a “Violent Felony.”

Under the ACCA, a defendant convicted of unlawful possession of a firearm is subject to a mandatory minimum sentence of fifteen-years’ imprisonment if the defendant has three previous convictions for, in this case, a “violent felony.” United States v. Reid, 769 F.3d 990, 993 (8th Cir. 2014) (citing 18 U.S.C. § 924(e)), cert. denied, — U.S. —, 135 S.Ct. 2825, 192 L.Ed.2d 862 (2015). A prior conviction “cannot qualify as an ACCA predicate offense if its elements are broader than,” the definition of a “violent felony.” Mathis, 136 S.Ct. at 2251, 195 L.Ed.2d 604. The phrase “violent felony” includes “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.” 18 U.S.C. § 924(e)(2)(B)(i) (emphasis added).

To assess whether a proposed predicate offense contains elements broader than a “violent felony” under the ACCA, we apply “the ‘formal categorical approach.’ ” United States v. Forrest, 611 F.3d 908, 909-10 (8th Cir. 2010) (quoting United States v. Reliford, 471 F.3d 913, 915-16 (8th Cir. 2006), cert denied, 550 U.S. 938, 127 S.Ct. 2248, 167 L.Ed.2d 1097 (2007)). The formal categorical approach “focuses on the statutory elements of the offense rather than the particular facts underlying the defendant’s prior conviction.” Reliford, 471 F.3d at 916.

If a statute is not categorically a “violent felony,” we must then decide whether application of the “modified-categorical approach” is appropriate. United States v. Headbird, 832 F.3d 844, 847-48, No. 15-3718, 2016 WL 4191186, at *2 (8th Cir. Aug. 9, 2016). To conduct this analysis, we must assess whether the state-law crime has “divisible” elements. Id. (emphasis added). We can “consider only whether the elements satisfy the ACCA and do not apply the modified-categorical approach” if the statute does not present divisible elements. Id. Only in a “ ‘narrow range of cases’ ” is a statute divisible and the application of the modified-categorical approach appropriate. Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2283-84, 186 L.Ed.2d 438 (2013) (quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).

Here, we face the question of whether Fogg’s prior conviction for drive-by shooting is a “violent felony.” Minnesota’s drive-, by shooting statute provides:

(a) Whoever, while in or having just exited from a mptor vehicle, recklessly discharges a firearm at or toward another motor vehicle or a building is guilty of a felony and may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $6,000, or both.
(b) Any person who violates this subdivision by firing at or toward a person, or an occupied building or motor vehicle, may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

Minn. Stat. § 609.66, subd. le.

Beginning with the categorical approach, a Minnesota conviction for drive-by shooting is not “categorically” a “violent felony” because Minn. Stat. § 609.66, subdivision 1e(a) plainly does not criminalize the use of force “against the person of another.” See 18 U.S.C. § 924(e)(2)(B)(I).

The majority, however, wrongly applies the modified-categorical approach by looking at “Fogg’s plea hearing transcript” to determine Fogg “was convicted under subdivision le(b)” without assessing whether section 609.66, subdivision 1e is divisible. In contrast to this analysis, Mathis requires that we must next determine whether section 609.66, subdivision 1e has “divisible” elements, and “thereby defined multiple crimes.” Mathis, 136 S.Ct. at 2249, 195 L.Ed.2d 604 (emphasis added); see also Headbird, 832 F.3d at 847-48, 2016 WL 4191186, at *2. Section 609.66, subdivision 1e only contains “divisible” elements if it “list[s] elements in the alternative.” Mathis, 136 S.Ct. at 2249, 195 L.Ed.2d 604 (emphasis added).

Applying precedent from the Minnesota Supreme Court, section 609.66, subdivision 1e is not “divisible.” See id. at 2256 (concluding, when a “state court decision definitively answers the question” then “a sentencing judge need only follow” the state court decision); Headbird, 832 F.3d at 848, 2016 WL 4191186, at *3 (considering interpretations from the Minnesota Court of Appeals, concluding “[w]e see no reason why the Minnesota Supreme Court would disagree with the analysis,” and failing to conduct any analysis of the elements under Apprendi). We, therefore, cannot apply the modified-categorical approach.

In State v. Hayes, the Minnesota Supreme Court articulated three elements required to convict an individual under section 609.66, subdivision 1e: “(1) [the defendant] was in or had just exited a motor vehicle; (2) [the defendant] recklessly discharged a firearm at or toward another motor vehicle or a building; and” (3) the date and county of the offense. 826 N.W.2d 799, 806 (Minn. 2013). The Supreme Court explicitly held the additional factor set forth in section 609.66, subdivision le(b)— “at or toward a person, or an occupied building or motor vehicle” — was not an element, but a sentencing enhancement. Id. at 804-05. The Minnesota Supreme Court went so far as to directly reject the contention that section 609.66, subdivision 1e(b) was a “ ‘separate offense.’ ” Id. at 806. Thus, based upon the elements articulated by the Minnesota Supreme Court, section 609.66, subdivision 1e does not “define multiple crimes,” Mathis, 136 S.Ct. at 2249, 195 L.Ed.2d 604, and is not divisible. Drive-by shooting is one crime consisting of three elements to obtain a conviction and none of the elements require the presence of a person.

Therefore, the majority’s application of the modified-categorical approach is improper because the statute is not divisible. Since the crime of drive-by shooting encompasses a broader scope of conduct than required by 18 U.S.C. § 924(e)(2)(B)(i), Fogg’s conviction is not. a “violent felony.” Fogg, therefore, only has two predicate offenses under the ACCA and is not subject to the ACCA’s mandatory minimum sentence of fifteen-years’ imprisonment.

CONCLUSION

Over more than 200 years, federal courts have respected a state supreme court’s authority to interpret state statutes. Here, the Minnesota Supreme Court definitively held the presence of a person is not required to obtain a conviction for drive-by shooting under section 609.66, subdivision 1e. Based upon the Minnesota Supreme Court’s interpretation of section 609.66, subdivision 1e, a conviction for drive-by shooting is not “categorically” a “violent felony” and does not have “divisible” elements to permit the application of the modified-categorical approach. For these reasons, Fogg’s drive-by shooting conviction is not an ACCA predicate offense and I would reverse and remand for resentencing consistent with this opinion.

I make one further comment. The United States Supreme Court recently reversed this Court for its overly-expansive application of the modified-categorical approach and clarified the proper circumstances for this Court to apply the modified-categorical approach. Mathis, 136 S.Ct. at 2251, 195 L.Ed.2d 604. Yet, the majority ignores the Supreme Court’s dictate that we can only apply, the modified-categorical approach to statutes’ with divisible elements. We should not need further clarification from the Supreme Court to understand the limited set of circumstances where the modified-categorical approach can be appropriately applied. See Descamps, 133 S.Ct. at 2283-84, 186 L.Ed.2d 438 (holding that only in a ‘narrow range of cases’ ” is a statute divisible and the application of the modified-categorical approach appropriate (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143, 109 L.Ed.2d 607)); Mathis, 136 S.Ct. at 2251-52, 195 L.Ed.2d 604 (noting that the legal principle that a sentencing judge can only look to the elements of the offense has become “a mantra” in the Supreme Court’s ACCA decisions to the point of “repetition” or “downright tedium”).

      . The Honorable Patrick J. Schütz, United States District Court Judge for the District of Minnesota.

      . While the focus of this dissent is on Part III .A of the majority opinion, I also dissent from Part III.B. Earlier this year, we signaled a move to join our sister Circuits in holding only crimes with a mens rea of "intent” or "purpose” qualify as "violent felon[ies]” under the ACCA. See United States v. Garcia-Longoria, 819 F.3d 1063, 1065-67 (8th Cir. 2016) (assuming without deciding that a crime with the mens rea of "recklessness” would not categorically involve the "use, attempted use, or threatened use of physical force”); see also United States v. Boose, 739 F.3d 1185, 1187-88 (8th Cir. 2014) (holding a conviction for "reckless driving” did not categorically involve the "use, attempted use, or threatened use of physical force”); United States v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) (holding "the use of force must be intentional, not just reckless or negligent”); United States v. McMurray, 653 F.3d 367, 374-75 (6th Cir. 2011) ("[T]he 'use of physical force' clause of the ACCA ... requires more than reckless conduct.”); Garcia v. Gonzales, 455 F.3d 465, 469 (4th Cir. 2006) (holding "recklessness, like negligence, is not enough to support a determination that a crime” categorically involved the "use, attempted use, or threatened use of physical force”). Now, without the benefit of further briefing and acknowledging the Supreme Court has not decided the issue, the majority concludes a mens rea of “recklessness” is sufficient for a crime to qualify as a "violent felony” under the ACCA relying on the Supreme Court’s recent decision in Voisine v. United States, — U.S. —, 136 S.Ct. 2272, 195 L.Ed.2d 736 (2016). We ought to refrain from deciding important and far reaching issues such as this on a plain error standard of review and without the benefit of full briefing or argument. See Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 938-39 (8th Cir. 2013). This is especially true when the opinion relied upon expressly distinguishes itself from the statutory provision at issue. Voisine, 136 S.Ct. at 2280 n.4 (acknowledging that the interpretation of the “misdemeanor crime of domestic violence” provision can diverge from "crime of violence” or "violent felony" provisions and, therefore, the decision only resolves the requisite mens rea for “misdemeanor crime[s] of domestic violence”).

      . Interestingly, the majority does not acknowledge its use of the modified-categorical approach to determine Fogg's conviction fell under Minn. Stat. § 609.66, subd. 1e(b). Instead, the majority perfunctorily acknowledges its review of "Fogg’s plea hearing transcript,” without recognizing it can only apply the modified-categorical approach and look at the plea hearing transcript if section 609.66, subdivision 1e contains divisible elements. Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2249, 2253-54, 195 L.Ed.2d 604 (2016) ("[Tjhe modifiedf-categorical] approach serves — and serves solely — as a tool to identify the elements of the crime of conviction when a statute’s disjunctive phrasing renders one (or more) of them opaque.”); see also United States v. Salean, 583 F.3d 1059, 1061 (8th Cir. 2009) (noting that only application of the modified-categorical approach permits courts to review “the charging document, jury instructions, plea agreement or plea hearing transcript, and comparable judicial records” (emphasis added)). As set forth in detail below, the Minnesota Supreme Court affirmatively determined section 609.66, subdivision le contains three, non-divisible elements and, therefore, the application of the modified-categorical approach is inappropriate.

      . “Dicta is '[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential!!]' ” Passmore v. Astrue, 533 F.3d 658, 661 (8th Cir. 2008) (alterations in original) (quoting Black’s Law Dictionary 1102 (8th ed. 2004)). The Supreme Court’s comment. regarding the use of the Apprendi standard to determine the elements of the offense was not necessary to the decision. The Supreme Court plainly stated that the determination of the elements was "easy” because "a state court decision definitively answer [ed] the question.” Mathis, 136 S.Ct. at 2256, 195 L.Ed.2d 604. Thus, the Supreme Court followed the elements as laid out by the state supreme court and never used or analyzed the Apprendi standard to decide the case. See also United States v. Headbird, 832 F.3d 844, 848, No. 15-3718, 2016 WL 4191186, at *3 (8th Cir. Aug. 9, 2016) (considering the Minnesota Court of Appeals’ analysis of the elements of a Minnesota statute, concluding "[w]e see no reason why the Minnesota Supreme Court would disagree with the analysis,” and failing to conduct any analysis of the elements under Apprendi).

      . The majority veils its failure to follow state-law precedent by hypothesizing the Minnesota Supreme Court would have made a different decision had it faced a Sixth Amendment challenge to the statute. "But a good rule of thumb for reading ... decisions is that what they say and what they mean are one and the same.” Mathis, 136 S.Ct. at 2254, 195 L.Ed.2d 604. The Minnesota Supreme Court explicitly held Minn. Stat. § 609.66, subd. 1e is one crime that requires the government to prove three elements — none of which require the presence of a person. State v, Hayes, 826 N.W.2d 799, 806 (Minn. 2013). Basic principles of federalism dictate that we should interpret the statute accordingly and the majority’s failure to do so, in effect, reverses over 200 years of precedent. See, e.g,, Murdock, 87 U.S. (20 Wall.) at 611-12, 22 L.Ed. 429 (citing M’Keen v. Delancy’s Lessee, 9 U.S. (5 Cranch) 22, 3 L.Ed. 25 (1809)).

      . The majority asserts that "[t]he dissent misreads Hayes'1 because the Minnesota Supreme Court “used the phrase 'sentence-enhancement provision’ only as a label to distinguish between two rival interpretations of the statute.” Thus, says the majority, the Minnesota Supreme Court did not mean to call subdivision 1e(b) a “sentence enhancement.” The majority ignores, however, that the “rival interpretations” of section 609.66, subdivision 1e(b) directly'related to whether subdivision 1e(b) was a separate offense from subdivision 1e(a). Compare Hayes, 826 N.W.2d at 804 (explaining the " ‘separate offense’ interpretation” to be “that subdivision 1e(b) modifies the elements set forth in subdivision 1e(a) to create.a separate, aggravated offense”), with id. (explaining the " 'sentence enhancement’ interpretation” to be that subdivision 1e(b) "is a sentencing provision setting forth enhanced penalties for particularly serious violations of subdivision 1e(a)”). As plainly set forth in Mathis, the question of whether a statute is divisible relates to whether a statute "define[s] multiple crimes.” 136 S.Ct. at 2249, 195 L.Ed.2d 604 (emphasis added); see also Headbird, 832 F.3d at 847-48, 2016 WL 4191186, at *2. The Minnesota Supreme Court concluded, based upon the competing interpretations of section 609.66, subdivision 1e(b), that the drive-by shooting statute only defines one crime. Hayes, 826 N.W.2d at 805.

      . The majority correctly points out that the United States Supreme Court has held that • "when the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element” for the purpose of analyzing a defendant’s Sixth Amendment rights. Apprendi, 530 U.S. at 494 n.19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (emphasis added). Under this precedent, when a sentence enhancement is "the functional equivalent of an element” a defendant has the Sixth Amendment right to have the fact submitted to a jury and proved beyond a reasonable doubt. Id. at 490, 120 S.Ct. 2348. But the plain language of the ACCA does not ask this Court to look for factors that are the "functional equivalent” of elements under the Sixth Amendment. Instead, the ACCA requires courts to analyze whether a crime has “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i) (emphasis added).
      Further, in light of the Apprendi line of cases, the Minnesota Supreme Court has acknowledged that a defendant is entitled "to a jury determination of facts supporting an upward sentencing departure.” State v. Dett-man, 719 N.W.2d 644, 651 (Minn. 2006). Yet, Minnesota continues to distinguish between elements and aggravating sentencing factors, going so far as to require a separate waiver of both the right to a jury trial on the elements of the offense and to any facts supporting an upward sentencing departure. Id. at 650-52. Therefore, a defendant's Sixth Amendment rights are not violated by the Minnesota Supreme Court continuing to distinguish between elements and aggravating sentencing factors.

      . I also question the majority's application of the modified-categorical approach to the listed items in subdivision 1e(b). Mathis does not permit this Court to apply the modified-categorical approach any time there is an alternatively phrased statute. See 136 S.Ct. at 2256, 195 L.Ed.2d 604. To the contrary, we are only permitted to apply the modified-categorical approach if a statute has divisible elements. Headbird, 832 F.3d at 847-48, 2016 WL 4191186, at *2. The majority fails to conduct any analysis of whether the phrase "person, or an occupied building or motor vehicle” in subdivision 1e(b) lists the elements or the means of committing drive-by shooting. See Mathis, 136 S.Ct. at 2256, 195 L.Ed.2d 604 ("The first task for a sentencing court faced with an alternatively phrased statute is ... to determine whether its listed items are elements or means.”). In fact, the majority's supposition that the elements of Fogg’s crime are "1) the defendant 'was in or had just exited a motor vehicle’; 2) the defendant 'recklessly discharged a firearm at or toward another motor vehicle or a building’; and 3) the defendant fired 'at or toward a person, or an occupied building or motor vehicle' ” would indicate the phrase lists means, not elements, of the crime. See id. at 2249, 2251 (holding the modified-categorical approach cannot be applied to a list that "specifies diverse means of satisfying a single element of a single crime”). Thus, even if subdivision 1e(b) was a separate offense, the majority’s application of the modified-categorical approach does not comport with Mathis.