Background
Stephon Verges pleaded guilty to possessing a firearm as a convicted felon. When calculating his advisory Sentencing Guidelines range, the district court reviewed the amended information and guilty plea from a prior Missouri conviction for unlawful use of a weapon and found that Verges had been convicted under Missouri Revised Statutes § 571.030.1(4), which prohibited exhibiting a weapon readily capable of lethal use in an angry or threatening manner in the presence of one or more persons.
The district court treated that Missouri offense as a “crime of violence” under the Guidelines and increased Verges’s Guidelines range. On appeal, Verges argued that the district court clearly erred in identifying the particular statutory subdivision underlying his prior conviction and that, in any event, an offense under § 571.030.1(4) does not categorically require the threatened use of physical force against another person.
The Court’s Holding
The Eighth Circuit affirmed. Because Missouri’s unlawful-use-of-weapons statute was divisible, the district court properly used the modified categorical approach and consulted permissible state-court records to identify Verges’s offense of conviction. The amended information alleged that he exhibited a firearm, a weapon readily capable of lethal use, in the presence of one or more persons—language that tracked subdivision (4) far more closely than any other subdivision. The district court therefore did not clearly err in finding by a preponderance of the evidence that Verges was convicted under § 571.030.1(4).
The court also held that the conviction qualified as a crime of violence. Its prior decision in United States v. Pulliam had already held that § 571.030.1(4) satisfies the materially equivalent force clause of the Armed Career Criminal Act by requiring the threatened use of physical force against another person. The Supreme Court’s intervening decision in Delligatti v. United States did not undermine Pulliam because Pulliam itself recognized that another person must be the object of the threatened force. The panel added that Verges’s argument would fail even if Pulliam could be reconsidered: Missouri Supreme Court precedent treats flourishing a weapon in another’s presence as an assault creating a substantial risk of death or injury to those present.
Key Takeaways
- A sentencing court may use Shepard-approved state-court records and reasonable inferences to identify the relevant offense within a divisible statute.
- Verges’s amended information sufficiently supported the finding that his prior conviction arose under Missouri Revised Statutes § 571.030.1(4), even though its language did not reproduce every statutory word.
- Under binding Eighth Circuit precedent, angrily or threateningly exhibiting a lethal weapon in another person’s presence categorically involves threatened physical force against another and is a Guidelines crime of violence.
Why It Matters
The decision preserves the Eighth Circuit’s treatment of Missouri’s weapon-exhibition offense as a crime of violence for federal sentencing purposes. It also confirms that Delligatti did not displace circuit precedent where that precedent already required another person to be the object of the threatened force.
For sentencing practitioners, the opinion illustrates both the limited record a court may examine under the modified categorical approach and the deferential clear-error review applied to the resulting identification of a defendant’s prior offense.