United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-3444
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Bralen Lamar Jordan

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                          Submitted: December 14, 2015
                            Filed: February 12, 2016
                                 ____________

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

MURPHY, Circuit Judge.

       Bralen Jordan pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g). The district court enhanced Jordan's sentence under
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), after concluding that
he had three prior violent felony convictions, and sentenced him to 180 months.
Jordan appeals, arguing that two of his prior convictions were not violent felonies
under the ACCA. We reverse and remand for resentencing.
       The ACCA imposes a mandatory minimum fifteen year sentence if a defendant
has been convicted as a felon in possession of a firearm "and has three previous
convictions by any court . . . for a violent felony." 18 U.S.C. § 924(e)(1). A
conviction can qualify as a "violent felony" if it is punishable by more than one year
imprisonment and meets one of three requirements. 

First, if a
conviction "has as an element the use, attempted use, or threatened use of physical
force against the person of another," it qualifies as a violent felony under the force
clause. 

Second, if a conviction "is burglary, arson, or extortion,
[or] involves use of explosives," it qualifies as a violent felony. 

Finally, if a conviction "otherwise involves conduct that presents a serious potential
risk of physical injury to another," it qualifies as a violent felony under the residual
clause. 

last year the residual clause was held to be unconstitutional
by the Supreme Court in Samuel Johnson v. United States, 

(2015).

       In May 2014, Jordan pled guilty to possessing a firearm as a convicted felon.
At Jordan's sentencing hearing later that year, the government argued that he had
three prior violent felony convictions and therefore qualified as an armed career
criminal. There is no dispute that Jordan's conviction in 2002 for threatening to
destroy property with explosives qualifies as a violent felony. Jordan argued at
sentencing, however, that his convictions for domestic battery in the third degree and
for aggravated assault were not violent felonies. The district court concluded that
these two convictions were violent felonies under the force and residual clauses of
the ACCA and enhanced his sentence accordingly. Because the residual clause has
meanwhile been held to be unconstitutional, we only analyze whether these
convictions qualify as violent felonies under the force clause of the ACCA. After that
analysis, we conclude that aggravated assault under Ark. Code Ann. § 5-13-204(a)(1)
is not a violent felony under the force clause.

      We review de novo the district court's determination of whether Jordan's
convictions qualify as violent felonies under the ACCA. United States v. Soileau,

                                           -2-


, 864 (8th Cir. 2012). In determining whether a conviction is a violent
felony, courts must "start with the formal categorical approach and look only to the
fact of conviction and the statutory definition of the prior offense." 

marks omitted). In a situation where a statute criminalizes both conduct
that does and does not qualify as a violent felony, courts apply the modified
categorical approach. See United States v. Bankhead, 

, 326 (8th Cir.
2014). The modified categorical approach allows courts to review the charging
document, plea agreement, and "comparable judicial records" to identify which
section of the statute supplied the basis for a defendant's conviction. 

consider whether the text of that section, not the facts underlying the conviction, fits
within the definition of a violent felony. See 

(internal
quotation marks omitted). The district court properly applied the modified
categorical approach to conclude that Jordan was convicted under subsection (a)(1)
of the Arkansas aggravated assault statute. Not only is the crime overinclusive and
divisible, but Jordan's charging document contains language identical to subsection
(a)(1).

         To qualify as a violent felony under the force clause, a statute must have "as
an element the use, attempted use, or threatened use of physical force against the
person of another." 18 U.S.C. § 924(e)(2)(B)(i). Physical force "means violent
force—that is, force capable of causing physical pain or injury to another person."
Curtis Johnson v. United States, 

, 140 (2010). If a statute only requires
the government to prove that a defendant created a risk of harm to another, it does not
qualify as a violent felony under the force clause because the government need not
prove violent physical force. See United States v. Parral-Dominguez, 

,
444–46 (4th Cir. 2015); United States v. Jaimes-Jaimes, 

, 849–51 (7th
Cir. 2005); United States v. Calderon-Pena, 

, 256–62 (5th Cir. 2004) (en
banc). For example, the Fifth Circuit has concluded that the offense of knowingly
"engag[ing] in conduct that places a child younger than 15 years in imminent danger
of . . . bodily injury" does not qualify as a violent felony under the force clause in the

                                           -3-
sentencing guidelines.1 

–62 (quoting Tex. Pen. Code
Ann. § 22.041(c)). The Fifth Circuit noted that a conviction for child endangerment
does not require the government to prove physical force because it "does not require
any bodily contact (let alone violent or forceful contact) or any injury in order for a
conviction to lie." 

This is what separates the force clause from the
residual clause, because unlike the residual clause the force clause "does not
encompass conduct that presents a serious potential risk of physical injury to
another." 

.

      To be convicted of aggravated assault under Ark. Code Ann. § 5-13-204(a)(1)
a person must manifest "extreme indifference to the value of human life" and
"purposely [e]ngage[] in conduct that creates a substantial danger of death or serious
physical injury to another person." Because subsection (a)(1) of Arkansas'
aggravated assault statute only requires the government to prove that a defendant's
conduct created "a substantial danger of death or serious physical injury" it does not
qualify as a violent felony under the force clause. See Ark. Code Ann. § 5-13-
204(a)(1); see also United States v. Esparza-Perez, 

, 229 n.4 (5th Cir.
2012) (government concedes, under Fifth Circuit precedent, that Ark. Code Ann. § 5-
13-204(a)(1) does not have as an element the use, attempted use, or threatened use of
physical force against the person of another).

      The government points to United States v. Graham, 

(8th Cir.
2010), an unpublished opinion, as support for its position that Arkansas' aggravated
assault statute is categorically a violent felony. Nevertheless, unpublished opinions
are not controlling precedent. United States v. Brunken, 

, 638 (8th Cir.

      1
       Due to "their nearly identical definitions, we construe 'violent felony' under
18 U.S.C. § 924(e)(2)(B)(ii) (the Armed Career Criminal Act) and 'crime of violence'
under the Guidelines as interchangeable, including the corresponding force clauses
and residual clauses." United States v. Boose, 

, 1187 n.1 (8th Cir.
2014).

                                         -4-
2009). Neither does United States v. Vinton require classification as a violent felony
of subsection (a)(1) of the Arkansas aggravate assault statute. 

(8th Cir.
2011). In Vinton, we concluded that subdivision (2) of Missouri's second degree
assault statute was a crime of violence under the ACCA. 

A person
commits second degree assault under subdivision (2) if he "[a]ttempts to cause or
knowingly causes physical injury to another person by means of a deadly weapon or
dangerous instrument." 

(quoting Mo. Rev. Stat. § 565.060.1(2)). The
statute in this case, however, does not require the government to prove that a
defendant attempted to cause or caused physical injury to another or that the
defendant used a deadly weapon or dangerous instrument. Rather, subsection (a)(1)
of Arkansas' aggravated assault statute merely requires the government prove that a
defendant engaged in conduct that created "a substantial danger of death or serious
physical injury." See Ark. Code Ann. § 5-13-204(a)(1).

      The district court thus erred by concluding that Jordan's aggravated assault
conviction was a violent felony, and sentencing him as an armed career criminal. The
judgment is vacated and the case remanded for resentencing consistent with this
opinion.

                       ______________________________




                                         -5-