Background
Bryce Marquan Banks appealed from the Western District of Missouri after the district court treated his Missouri conviction for third-degree domestic assault as a “crime of violence” under U.S.S.G. § 2K2.1(a)(2). The presentence investigation report described the state indictment as alleging that Banks attempted to cause physical injury and knowingly caused pain by pulling the victim’s hair and kicking her.
Applying the modified categorical approach, the Eighth Circuit treated Banks as having been convicted of the least of the charged acts: attempted third-degree domestic assault. Banks argued on appeal that Missouri permits an attempt conviction based on reckless conduct, which would fall outside the Armed Career Criminal Act’s force clause under Borden v. United States. Because he had not made that argument in the district court, the panel reviewed only for plain error.
The Court’s Holding
The Eighth Circuit affirmed. Its recent decision in United States v. Porter held that the attempted form of Missouri third-degree domestic assault is a “violent felony” under the Armed Career Criminal Act. Because the court applies the same analysis to the Sentencing Guidelines’ “crime of violence” definition, Porter establishes that the attempted offense qualifies under § 2K2.1(a)(2).
The panel declined to grant relief under plain-error review. Even assuming Banks’s argument about Missouri attempt law identified an error, that error could not be clear or obvious because Porter had already held that the precise attempted offense qualifies as a violent felony.
Key Takeaways
- Attempted Missouri third-degree domestic assault qualifies as a “crime of violence” under U.S.S.G. § 2K2.1(a)(2) based on the Eighth Circuit’s Porter precedent.
- An unobjected-to presentence report may supply the description of a charging instrument used in the modified categorical analysis.
- A sentencing argument raised for the first time on appeal faces plain-error review, and controlling circuit precedent prevents any asserted error from being clear or obvious.
Why It Matters
The decision confirms that, within the Eighth Circuit, Porter’s treatment of attempted Missouri third-degree domestic assault under the Armed Career Criminal Act also governs the parallel “crime of violence” inquiry under the Sentencing Guidelines.
It also underscores the importance of preserving mens rea and categorical-approach objections at sentencing. Banks’s failure to raise his Missouri attempt-law argument below limited appellate review and, in light of existing circuit precedent, foreclosed relief.