United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-2436
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Ryan William McMillan

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                              Submitted: April 7, 2017
                                Filed: July 24, 2017
                                  ____________

Before GRUENDER, MURPHY, and KELLY, Circuit Judges.
                         ____________

MURPHY, Circuit Judge.

       Ryan William McMillan pled guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 84 months
imprisonment based in part on its determination that his prior conviction for third
degree riot was a crime of violence under the sentencing guidelines. McMillan
appeals, and we vacate his sentence and remand for resentencing.
                                           I.

       McMillan pled guilty to being a felon in possession of a firearm in November
2015. The presentence investigation report recommended a base offense level of 24
under U.S.S.G. § 2K2.1(a)(2) because McMillan had committed the current offense
after felony convictions for a controlled substance offense and a crime of violence,
specifically a 2009 Minnesota conviction for third degree riot. See Minn. Stat.
§ 609.71, subd. 3 (2009). McMillan objected to the presentence report's
determination that his conviction for third degree riot qualified as a crime of violence.

       At McMillan's May 2016 sentencing hearing, the district court overruled
McMillan's objection and determined that his third degree riot conviction qualified
as a crime of violence because it had "as an element the use, attempted use, or
threatened use of physical force against the person of another." U.S.S.G.
§ 4B1.2(a)(1). After deciding that McMillan's base offense level was 24, and
adjusting his offense level, the court calculated an advisory guideline range of 92 to
115 months and sentenced McMillan to 84 months. McMillan appeals, arguing that
the district court erred by overruling his objection that his prior conviction for third
degree riot does not qualify as a crime of violence.

                                           II.

      We review de novo whether a conviction qualifies as a crime of violence.
United States v. Rice, 

, 705 (8th Cir. 2016). Section 2K2.1 of the
guidelines provides that courts should apply a base offense level of 24 for a
conviction of unlawful possession of a firearm if, among other factors, the defendant
had previously "sustain[ed] at least two felony convictions of either a crime of
violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). A "crime of
violence" is any federal or state offense punishable by more than one year
imprisonment that either: "(1) has as an element the use, attempted use, or threatened

                                          -2-
use of physical force against the person of another, or (2) is burglary of a dwelling,
arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)
(2015).1 Subsection one contains the force clause and subsection two contains the
enumerated and residual clauses. See United States v. Jordan, 

, 1185
(8th Cir. 2016).2

                                          III.

       McMillan argues that the district court erred by concluding that his prior
conviction for third degree riot qualifies as a crime of violence under the force clause.
To determine whether a prior conviction qualifies as a predicate offense under the
force clause, "we apply a categorical approach, looking to the elements of the offense
as defined in the . . . statute of conviction rather than to the facts underlying the
defendant's prior conviction." 

(quoting United States v. Dawn,

, 794 (8th Cir. 2012)) (alteration in Dawn). If the statute of conviction
is divisible, however, "in that it encompasses multiple crimes, some of which are
crimes of violence and some of which are not, we apply a modified categorical
approach to 'look at the charging document, plea colloquy, and comparable judicial
records' for determining which part of the statute the defendant violated." 

the district court is required to apply the guidelines in effect on the
date of sentencing, see United States v. Lawin, 

, 781 (8th Cir. 2015) (per
curiam), we analyze McMillan's sentence under the 2015 guidelines which became
effective on November 1, 2015.
      2
       Although Jordan analyzes the Armed Career Criminal Act, not the guidelines,
the definition of "crime of violence" in U.S.S.G. § 4B1.2(a) (2015) was "nearly
identical to the definition of 'violent felony' in 18 U.S.C. § 924(e)(2)(B)," and we see
no reason to treat them differently here. United States v. Craig, 

, 723
(8th Cir. 2011) (quoting United States v. Clinkscale, 

, 817 (8th Cir.
2009)).

                                          -3-
(quoting 

–95). "We then determine whether a violation of that
statutory subpart is a crime of violence." 

statute states: "When three or more persons assembled disturb
the public peace by an intentional act or threat of unlawful force or violence to person
or property, each participant therein is guilty of riot third degree . . . ." Minn. Stat.
§ 609.71, subd. 3 (2009). Because a prior conviction only qualifies as a crime of
violence under the force clause if it "has as an element the use, attempted use, or
threatened use of physical force against the person of another," U.S.S.G.
§ 4B1.2(a)(1) (2015) (emphasis added), we must determine whether we may use the
modified categorical approach to analyze whether McMillan was convicted of using
or threatening force against a "person or property" under Minn. Stat. § 609.71, subd.
3 (2009).

       We may only apply the modified categorical approach to statutes that are
divisible. See United States v. Headbird, 

, 846 (8th Cir. 2016). To
determine whether Minnesota's third degree riot statute is divisible, we ascertain
"which words or phrases in the statute are elements of the crime," as opposed to the
means, or specific facts, of satisfying these elements. 

A list of
alternative elements is divisible, but a list of alternative means is not. See Mathis v.
United States, 

, 2256 (2016).

      The elements of a crime "are what the jury must find beyond a reasonable
doubt to convict the defendant; and at a plea hearing, they are what the defendant
necessarily admits when he pleads guilty." 

(citation
omitted). The facts underlying a prior conviction, however, are "mere real-world
things—extraneous to the crime's legal requirements." 

which words or phrases of a statute form the elements of a
crime, courts may look to the statute of prior conviction, state court decisions, and,

                                          -4-
as a last resort, "the record of a prior conviction itself." 

.
The text of Minnesota's third degree riot statute "does not provide helpful guidance"
as to whether the phrase "person or property" lists alternative means or alternative
elements because "there is, for example, a uniform punishment for commission of"
third degree riot. See United States v. McArthur, 

, 938 (8th Cir. 2017).

        The relevant state court decisions suggest that the phrase "person or property"
lists alternative means, not alternative elements. Two Minnesota appellate court
decisions indicate that to convict a defendant of a riot offense, the state must prove
that: "(1) [the defendant] was one of 'three or more persons assembled'; [and] (2) the
assembly 'disturb[ed] the public peace by an intentional act or threat of unlawful force
or violence to person or property.'" State v. Witherspoon, 

, at *2
(Minn. Ct. App. July 1, 2013) (unpublished) (quoting Minn. Stat. § 609.71, subd. 2,
which is materially identical to Minn. Stat. § 609.71, subd. 3 (2009)); see also State
v. Winkels, 

, 764 (Minn. 1939) (analyzing 2 Mason Minn. St. 1927, §
10280, which is materially identical to Minn. Stat. § 609.71, subd. 3 (2009)). That
statement of the second element of a riot offense suggests that a jury is not required
to agree unanimously on whether a "person or property" was affected by the crime
and therefore indicates that they are alternative means, not elements. See 

.

       Moreover, in Witherspoon the Minnesota Court of Appeals stated that the state
had proven the second element of the riot statute by introducing evidence that one of
the persons in the assembly "fired a handgun from a vehicle in a public place." 

, at *3 (citing 

). By concluding that the state
need only provide evidence that a defendant fired a weapon in a public place to
satisfy the "person or property" element, the Minnesota Court of Appeals indicated
that a jury need not unanimously agree on whether a "person or property" was the
object of the offense. We see no reason why the Minnesota Supreme Court would



                                          -5-
disagree with the analysis in Witherspoon. See Blankenship v. USA Truck, Inc., 

, 856 (8th Cir. 2010).

        We may use a state's model jury instructions to "reinforce" our interpretation
of the means or elements inquiry. See United States v. Lamb, 

, 932 (8th
Cir. 2017). The Minnesota model jury instructions also support the conclusion that
the phrase "person or property" is a list of alternative means. The model instructions
list the first two elements of third degree riot as:

      First, the defendant was one of three or more persons assembled
      together.
      Second, those assembled disturbed the public peace by an intentional act
      or threat of unlawful force or violence to person or property.

Minnesota Jury Instruction Guides-Criminal (CRIMJIG) § 13.117. The model jury
instructions, like Winkels and Witherspoon, suggest that a jury would not have to
agree unanimously on whether a "person or property" was the object of the public
peace disturbance to convict a defendant of a riot offense.

       The government argues that the phrase "person or property" is a list of
alternative elements because the disjunctive "or" separates "person" from "property."
As Mathis recognizes, however, the use of the word "or" in a statute merely signals
that we must determine whether the alternatives are elements or means; it is not
determinative one way or another. 

–49. Indeed, we have
concluded elsewhere that a list of alternatives was a list of means even though the
statute used the word "or" between the alternatives. E.g., 

–38.

       We conclude that the phrase "person or property" lists two alternative means
of committing the second element of the Minnesota third degree riot statute, Minn.
Stat. § 609.71, subd. 3. The phrase "person or property" therefore is not divisible and

                                         -6-
we may not apply the modified categorical approach to determine under which
alternative McMillan was convicted. McMillan's prior conviction for third degree
riot thus does not categorically qualify as a crime of violence under the force clause
because the statute encompasses crimes against property. See U.S.S.G. § 4B1.2(a)(1).
For these reasons, the district court erred by concluding that McMillan's third degree
riot conviction is a crime of violence under the force clause.

                                         IV.

       The government argues that even if McMillan's third degree riot conviction
does not qualify as a crime of violence under the force clause of U.S.S.G. § 4B1.2(a),
the district court's error was harmless because his riot conviction qualifies under the
residual clause. At the time of McMillan's sentencing, U.S.S.G. § 4B1.2(a) defined
"crime of violence" to include crimes that "otherwise involve[] conduct that presents
a serious potential risk of physical injury to another." In 2015 the Supreme Court
held that an identically worded residual clause in the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. Johnson v. United
States, 

(2015). In 2017, however, the Court held that the residual
clause in U.S.S.G. § 4B1.2(a)(2) is not unconstitutionally vague because "the
advisory Guidelines are not subject to vagueness challenges under the Due Process
Clause." Beckles v. United States, 

, 890 (2017).

      Nevertheless, on January 8, 2016 the sentencing commission announced that
it had unanimously voted to eliminate the residual clause from U.S.S.G.
§ 4B1.2(a)(2). See U.S. Sentencing Commission Adopts Amendment to Definition
of "Crime of Violence" in Federal Sentencing Guidelines and Proposes Additional
Amendments (Jan. 8, 2016), http://www.ussc.gov/about/news/press-releases/january
-8-2016. The amendment became effective on August 1, 2016. U.S.S.G. app. C,
amend. 798.



                                         -7-
       Although district courts are required to apply the guidelines in effect on the
date of sentencing, they may consider pending amendments to the guidelines. See

. Because McMillan was sentenced in May 2016, the court
was required to apply the 2015 version of U.S.S.G. § 4B1.2(a) which included the
residual clause. While it would have been permissible for the district court to
consider the Sentencing Commission's proposed elimination of that clause, it did not
reach this issue because both parties had solely analyzed whether McMillan's prior
conviction for third degree riot qualified as a "crime of violence" under the force
clause.


       We have often noted that "[w]hen it would be beneficial for the district court
to consider an alternative argument in the first instance, we may remand the matter
to the district court." Tovar v. Essentia Health, 

, 779 (8th Cir. 2017)
(quoting Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 

, 851
(8th Cir. 2014)). We conclude that this is the situation here, and we therefore remand
for the district court to determine in the first instance whether McMillan's prior
conviction qualifies as a "crime of violence" under the residual clause and, if so,
whether the district court should consider the proposed amendment to U.S.S.G.
§ 4B1.2(a)(2).

                                         V.

      For these reasons McMillan's sentence is vacated, and the case remanded for
resentencing consistent with this opinion.




                                         -8-
GRUENDER, Circuit Judge, dissenting.

       I agree that the district court erred in concluding that McMillan’s conviction
of third degree riot for the benefit of a gang qualifies as a crime of violence under the
force clause of United States Sentencing Guidelines § 4B1.2(a)(1), and accordingly,
I join sections I through III of the court’s opinion. However, I respectfully dissent
from the court’s decision to vacate and remand for resentencing. Instead, I would
follow our approach in United States v. Benedict and affirm on the alternative basis
that McMillan’s riot conviction qualifies as a crime of violence under the residual
clause. See 

, 890 (8th Cir. 2017) (affirming career-offender
enhancements under § 4B1.2(a)’s residual clause after en banc court vacated original
panel opinion based on the enumerated-offenses clause); see also United States v.
Snyder, 

, 973 (10th Cir. 2017) (affirming application of career-offender
enhancement based on the enumerated-offenses clause on the alternative basis of the
residual clause).


       In June 2009, McMillan and six of his cohorts from the East Side Boyz street
gang squared off against members of the rival Selby Side gang in the parking lot of
a local gas station. Shortly thereafter, McMillan and his crew crossed into Selby Side
territory, located a member of the gang, and fatally shot him in the head. McMillan
pleaded guilty to third degree riot for the benefit of a gang for his role in the murder.
See Minn. Stat. §§ 609.71(3), 609.229(3)(c). Several years later, police officers in
Minneapolis, Minnesota conducted a routine traffic stop of a vehicle that McMillan
was driving. During the stop, the officers detected an odor of marijuana, searched the
car, and found a Glock 19 handgun with a laser sight hidden in the driver’s seat
cushion. Police subsequently learned that the gun had been stolen. Based on his
prior convictions for third degree riot and two other felonies involving controlled
substances, a federal grand jury indicted McMillan on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). McMillan appeals his


                                          -9-
resulting sentencing, challenging only the district court’s determination that his third
degree riot conviction qualified as a crime of violence under U.S.S.G. § 4B1.2(a).


       As the court notes, we review de novo whether a conviction qualifies as a crime
of violence. United States v. Rice, 

, 705 (8th Cir. 2016) (citation
omitted). “It is, however, well established that we may affirm a sentence on any
grounds supported by the record . . . .” United States v. Goings, 

, 544
(8th Cir. 2000) (citation omitted). Given that, upon remand, the district court will be
compelled to “follow the firmly-established principle [of] apply[ing] the Sentencing
Guidelines in effect at the time of sentencing,” United States v. Lawin, 

,
781 (8th Cir. 2015) (per curiam) (citation omitted); see also 18 U.S.C. § 3742(g) (“A
district court to which a case is remanded . . . shall apply the guidelines . . . that were
in effect on the date of the previous sentencing of the defendant prior to the appeal,
together with any amendments thereto by any act of Congress that was in effect on
such date . . . .”), and because the determination of whether a conviction constitutes
a crime of violence is a question of law under the categorical approach, I would
resolve whether McMillan’s riot conviction nonetheless qualifies as a crime of
violence under the guidelines’ residual clause rather than remanding.


       As we explained in Benedict, “To determine whether an offense qualifies as a
crime of violence under the residual clause, we use the ‘categorical approach,’ which
requires us to consider whether the elements of the offense are of the type that would
justify its inclusion within the residual provision, without inquiring into the specific
conduct of this particular 

(quotation omitted). Applying
this framework, I would decide whether McMillan’s riot conviction: “(1) present[s]
a serious potential risk of physical injury to another, and (2) [is] roughly similar, in
kind as well as degree of risk posed, to the offenses listed in § 4B1.2(a)(2).” United
States v. Watson, 

, 1092 (8th Cir. 2011) (citation and internal quotation
marks omitted). “[A] crime involves the requisite risk when the risk posed by the

                                           -10-
crime in question is comparable to that posed by its closest analog among the
enumerated offenses.” 

       In Minnesota, third degree riot is a gross misdemeanor committed “[w]hen
three or more persons assembled disturb the public peace by an intentional act or
threat of unlawful force or violence to person or property.” Minn. Stat. § 609.71(3).
However, Minnesota elevates this offense to a felony punishable by up to three years’
imprisonment when it is committed for the benefit of a gang, which, in turn, requires
the State to prove both that the crime benefitted a gang and that the gang is involved
in sufficiently deviant behavior to qualify as a “criminal gang.” 

I
believe that the Minnesota offense of third degree riot for the benefit of a gang
presents a serious potential risk of physical injury to another and that such a risk is
similar, in kind as well as degree of risk posed, to the offenses enumerated in
§ 4B1.2(a)(2). See 

.


       As to the first part of the test, we explained in United States v. Craig that even
if “the crime itself may be accomplished without violent physical force, the offense
may nevertheless be a crime of violence under the residual clause if it creates a
substantial risk of a violent confrontation and [typically] involves purposeful, violent,
and aggressive behavior.” 

, 724 (8th Cir. 2011) (quotation omitted).
Specifically, Craig held that Tennessee sexual battery was a crime of violence
because the offense inherently “creates a substantial risk of a violent, face-to-face
confrontation should the victim, or another person . . . become aware of what is
happening.” See 

A similar risk of confrontation inheres when an
assembled group of three or more gang members engages in an act or threat of
unlawful force or violence sufficient to disturb the public peace. For example, it is
not difficult to imagine such force, even when directed at property rather than people,
leading to violence between the gang and a local business owner, an innocent
bystander, an overzealous recruit of the neighborhood watch, or, most likely,

                                          -11-
members of a rival gang. Likewise, given the offense’s dual requirements that the
force itself must cause the disturbance of the peace and that it be employed for the
benefit of a gang, the offender’s behavior is by definition purposeful and aggressive.
See 

the second part of the test, while third degree riot for the benefit of a
gang will not always result in a violent confrontation, there is little question that the
crime creates a risk of violence at least as substantial as the risk created by the
enumerated offense of burglary. Accord United States v. Hennecke, 

,
623 (8th Cir.2010) (holding that stealing from a person is a crime of violence under
the residual clause because it “poses the same risk of violent confrontation with the
victim or a third person as attempted or completed burglary”); 

(finding same for possession of a firearm while committing a drug trafficking
offense and noting that, although “[t]he enumerated crime of burglary can be
accomplished without purposeful violence . . . it is a crime of violence because the
offender purposefully and aggressively creates a substantial risk of violent
confrontation.” (quotation omitted)); United States v. Hudson, 

, 885-86
(8th Cir. 2009) (finding same for Missouri offense of resisting arrest by fleeing). On
a final note, while not dispositive, the fact that Minnesota classifies even ordinary riot
as a crime of violence only serves to confirm that the offense qualifies under the
definition set out in the guidelines. See Minn. Stat. § 624.712(5).


       In his supplemental brief, McMillan resists the application of the residual
clause for two main reasons. First, he contends that the Supreme Court’s decision in
Beckles v. United States upholding the guidelines’ residual clause, 

,
890 (2017), does not undermine its prior opinion in Johnson v. United States, which
struck down the identically worded residual clause of the Armed Career Criminal Act
(“ACCA”) as unconstitutionally vague, 

, 2563 (2015). Specifically,
he argues, “Just because a guideline cannot be unconstitutionally vague is no
guarantee that courts can know what it means and interpret it in a principled and
consistent fashion.” Accordingly, McMillan suggests that it would constitute


                                          -12-
“procedural error and an abuse of discretion to calculate the guideline range based on
an attempt to interpret the residual clause.” This argument is unavailing, given that
Beckles itself affirmed the dismissal of a postconviction motion to vacate a sentence
based on the guidelines residual 

. Moreover, in Benedict,
we affirmed a crime-of-violence determination based on the residual clause, thereby
foreclosing McMillan’s interpretation of Beckles.3 

.


       Alternatively, McMillan urges that, even if the guidelines’ residual clause
remains valid, his riot conviction does not qualify as a crime of violence under it. In
advancing this position, McMillan offers three hypothetical examples of nonviolent
property crimes that, at most, would qualify as ordinary third degree riot, rather than
the felony version of the offense committed for the benefit of a gang. These three
hypotheticals involve groups of individuals waking up neighbors by throwing rocks
at store windows, tagging businesses with graffiti, or keying cars. Even assuming
that such conduct would satisfy the elements of a Minnesota riot conviction, however,
these examples are insufficient to preclude the application of the residual clause. As
we have previously cautioned, “the categorical approach is not an invitation to apply
legal imagination to the state offense; there must be a realistic probability, not a
theoretical possibility, that the State would apply its statute to [hypothetical]


      3
        McMillan’s related argument—that, “when interpreting the [guidelines]
residual clause, [courts] cannot rely on decisions expressly or implicitly overruled by
the [Supreme] Court in Johnson”—likewise fails under Benedict. 

(relying on James v. United States, 

(2007), and other ACCA residual
clause cases invalidated by Johnson because these cases remain applicable in
interpreting the guidelines’ residual clause); accord United States v. Cooper, No. 15-
11546, 

, at *5 n.3 (11th Cir. April 26, 2017) (unpublished)
(“Although Johnson invalidated [the residual] clause as unconstitutionally vague,
[the] reasoning [of an ACCA case concerning the same offense] still applies here
because we are interpreting ‘nearly identical language’ in the Sentencing Guidelines,
which are not subject [to] vagueness challenges.” (citations omitted)).

                                         -13-
conduct . . . .” United States v. Roblero-Ramirez, 

, 1126 (8th Cir.
2013) (quotations and citations omitted). In this vein, the Government notes that
McMillan’s hypotheticals do not comport with “the ordinary case” based on
Minnesota’s history of prosecuting this offense. See United States v. Pate, 

, 555 (8th Cir. 2014) (holding vehicular flight qualifies under the ACCA residual
clause and rejecting argument that someone could be convicted “without any risk of
injury by ‘pulling over, parking safely, and extinguishing [the car’s] lights,’” where
the defendant “cite[d] no example of anyone prosecuted for this hypothetical
violation, and [where this court’s] review of Minnesota cases reveal[ed] none”).
Aside from McMillan’s conviction, there appear to have been only two relevant
prosecutions of riot for the benefit of a gang; one was a juvenile adjudication
involving a physical altercation between rival gangs, see In re Welfare of A.E., No.
C4-00-717, 

, at *1 (Minn. Ct. App. Dec. 12, 2000), and the other
was a second degree conviction for firing a handgun out of the window of a vehicle,
see State v. Witherspoon, No. A12–1247, 

, at *1 (Minn. Ct. App.
July 1, 2013). Thus, a review of Minnesota cases defeats McMillan’s second
argument and further confirms that his riot conviction qualifies as a crime of violence.


       The court is correct that it would have been permissible for the district court
to have considered the Sentencing Commission’s then-pending amendment deleting
the residual clause from § 4B1.2(a) had it reached this issue originally. See 

. However, on remand, the court first should conclude, as a matter of
law, that the conviction qualified as a crime of violence under the residual clause per
the above analysis. Thus, McMillan’s total offense level will remain the same. I
cannot see how a Sentencing Commission’s rule change—based at least in part on the
widespread but ultimately incorrect assumption that Johnson invalidated the
guidelines’ residual clause—could affect the district court’s views on the
appropriateness of the sentence imposed. Thus, I do not agree that this is a situation
where “it would be beneficial for the district court to consider an alternative argument


                                         -14-
in the first instance,” see Tovar v. Essentia Health, 

, 779 (8th Cir. 2017)
(quotation omitted), and instead believe that a remand will serve only to waste the
district court’s valuable time. Accordingly, I would affirm the sentence.
                       ______________________________




                                         -15-