No. 22-3168 ___________________________

United States of America

Plaintiff - Appellant

v.

Mujera Benjamin Lung’aho

Defendant - Appellee ____________

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

Submitted: March 14, 2023 Filed: July 6, 2023 ____________ Before SHEPHERD, ERICKSON, and STRAS, Circuit Judges. ____________ STRAS, Circuit Judge.

The issue before us is whether arson is a “crime of violence” under 18 U.S.C. § 924(c)(1)(A). We agree with the district court 1 that it is not.

1 The Honorable D. Price Marshall, Jr., Chief Judge, United States District Court for the Eastern District of Arkansas. I.

Mujera Lung’aho was angry after the death of George Floyd. The government claims that he and his friends channeled their anger into destroying as much police property as possible. In addition to slashing tires and breaking windows, they threw Molotov cocktails at three police cars.

Lung’aho now faces 13 federal charges. Included among them are three counts of arson: “maliciously damag[ing] or destroy[ing],” by “fire or an explosive,” a “vehicle . . . owned or possessed by . . . an[] institution or organization receiving” federal funding. 18 U.S.C. § 844(f)(1) (emphasis added); see Jones v. United States, 529 U.S. 848, 850 (2000) (calling 18 U.S.C. § 844 an “arson” statute).

The arson charges are also the driving force behind three counts of possessing a “destructive device,” 18 U.S.C. § 924(c)(1)(B)(ii), in connection with a “crime of violence,” id. § 924(c)(1)(A). Under the government’s theory, the Molotov cocktails were the destructive devices, and the three counts of arson were the crimes of violence.

Lung’aho’s position is that arson is not a “crime of violence.” Id. If it can be committed recklessly, as he believes, then it does not necessarily involve the “use of physical force against the person or property of another.” Id. § 924(c)(3)(A); see Borden v. United States, 141 S. Ct. 1817, 1825 (2021) (plurality opinion). And in the absence of that element, there is no “crime of violence.” 18 U.S.C. § 924(c)(3)(A).

Following that logic, the district court dismissed the three destructive-device counts. The government has filed an interlocutory appeal with the hope of reinstating them. See id. § 3731 (granting an immediate appeal to “the United States” from the dismissal of “any one or more counts” in an indictment). Our

-2- review is de novo. See United States v. Schneider, 905 F.3d 1088, 1090 (8th Cir. 2018).

II.

Under the destructive-device statute, a “crime of violence” comes in only one form.2 It must have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). Better known as the “force” or “elements” clause, it requires us to examine the definition of the crime alone, not a defendant’s “real-world” conduct. Mathis v. United States, 579 U.S. 500, 504 (2016) (explaining how “real-world” facts are basically irrelevant). We call the comparison of “elements” required in these circumstances the “categorical approach.” Id.

Using the categorical approach, our task is to determine whether the legal definition of arson necessarily has, as an element, the “use of physical force” against the person or property of another. Schneider, 905 F.3d at 1090. In a rece