United States v. Jeremy Burnett, No. 21-2159 (8th Cir. 2022)
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Defendant pleaded guilty to being a felon in possession of a firearm. He received a statutory-maximum ten-year sentence. In doing so, the district court varied upward from a guideline range of 51–63 months based on a prior felony assault conviction under Arkansas Code Annotated Sec, 5-13-204.
On appeal, Defendant claimed that Sec, 5-13-204 is not a crime of violence. The statute provides, " A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he or she purposely ... Impedes or prevents the respiration of another person or the circulation of another person’s blood by applying pressure on the throat or neck or by blocking the nose or mouth of the other person."
The Eighth Circuit found Sec, 5-13-204 qualifies as a crime of violence based on the fact that domestic abuse strangulation, which contains almost identical phrasing, was previously held to be a crime of violence.
Court Description: [Melloy, Author, with Colloton and Gruender, Circuit Judges] Criminal case - Sentencing. Anders case. Defendant's prior Arkansas felony assault conviction qualified as crime of violence for sentencing purposes under Guidelines Sec. 2K2.1(a)(4); defendant's sentence was substantively reasonable; claims of ineffective assistance of counsel would not be addressed on direct appeal.
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