United States v. James Mahurin, II

United States Court of Appeals For the Eighth Circuit ___________________________

No. 22-2580 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

James Eugene Mahurin, II

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau ____________

Submitted: April 10, 2023 Filed: April 26, 2023 [Unpublished] ____________

Before BENTON, ARNOLD, and GRASZ, Circuit Judges. ____________

PER CURIAM.

James E. Mahurin, II, pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). When calculating his Sentencing Guidelines range, the

district court1 determined that Mahurin's previous conviction for second-degree arson, see Mo. Rev. Stat. § 569.050(1), was a crime of violence and sentenced him to 110 months in prison. Mahurin challenges the court's determination that his arson conviction was for a crime of violence. We affirm.

The Guidelines provide that, if Mahurin's arson conviction was a crime of violence, his base offense level would be 20. See USSG § 2K2.1(a)(4)(A). If it was not a crime of violence, Mahurin contended that his base offense level would be 14, see id. § 2K2.1(a)(6), taking his Guidelines range down from 110–137 months' imprisonment to 63–78 months. The Guidelines define a "crime of violence" to include a list of enumerated crimes, one of which is arson. See id. § 4B1.2(a)(2). Courts often refer to this clause as the "enumerated offenses clause." See, e.g., United States v. Martin, 15 F.4th 878, 883 (8th Cir. 2021). A crime of violence also includes certain offenses that have "as an element the use, attempted use, or threatened use of physical force against the person of another." See USSG § 4B1.2(a)(1). Courts often call this provision the "force clause." See, e.g., United States v. Frazier, 48 F.4th 884, 885 (8th Cir. 2022).

Since arson is expressly included in the list of enumerated offenses that constitute a crime of violence, it would seem clear that Mahurin's conviction was for a crime of violence under the enumerated offenses clause. But there's more to it. "We must decide whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding crime of violence," which is "the sense in which the term is now used in the criminal codes of most States." See Martin, 15 F.4th at 883–84.

1 The Honorable Stephen R. Clark, then United States District Judge for the Eastern District of Missouri, now Chief Judge.

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Because he was convicted of second-degree arson, Mahurin "knowingly damage[d] a building or inhabitable structure by starting a fire or causing an explosion." See Mo. Rev. Stat. § 569.050(1). Mahurin says that the generic definition of arson requires that a person act "maliciously," and he maintains that "the 'knowingly' mens rea element in the Missouri statute is broader than the mental state requirement for the generic federal offense," which prevents his conviction from being a crime of violence. But a prior panel of this court rejected this very argument and held that the word "knowingly" in Missouri's arson statutes "is comparable to maliciousness" and therefore the offense is not broader than generic arson. See United States v. Whaley, 552 F.3d 904, 907 (8th Cir. 2009). The prior panel's decision binds us and so forecloses Mahurin's challenge. See United States v. Hall, 44 F.4th 799, 806 (8th Cir. 2022).

Mahurin argues, however, that we need not follow Whaley because it is no longer good law in light of the Supreme Court's decision in Borden v. United States, 141 S. Ct. 1817 (2021). We disagree. Borden held "only that the force clause categorically excludes offenses that can be committed recklessly." See United States v. Larry, 51 F.4th 290, 292 (8th Cir. 2022). But this case involves the enumerated- offenses clause, not the force clause. In addition, second-degree arson on its face requires that a defendant knowingly (not just recklessly) damage a building or inhabitable structure. See Mo. Rev. Stat. § 569.050(1); cf. Larry, 51 F.4th at 292. And there's no reason to conclude that the term "knowingly" under Missouri law means "recklessly" as the Court used that term in Borden. See Mo. Rev. Stat. § 562.016. Because Borden does not call Whaley into question, we conclude that the district court did not err.

Affirmed. ______________________________

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