Submitted: January 11, 2016
from United States District Court for the Eastern District of
Missouri - St. Louis
MURPHY, SMITH, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Miranda-Zarco pled guilty to two conspiracies: to distribute
methamphetamine in violation of 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1)(A); and to commit money laundering in
violation of 18 U.S.C. § 1956 (a)(1)(B)(i) and (h). He
appeals the addition of one criminal-history point under
U.S.S.G. § 4A1.1. Having jurisdiction under 28 U.S.C.
§ 1291, this court vacates the sentence and remands.
2001, for the same act, Miranda-Zarco pled guilty to
first-degree robbery and armed criminal action (ACA).
See § 569.020 RSMo (robbery in the first
degree); § 571.015 RSMo (ACA). "According to court
records" he, "acting with another, forcibly stole
U.S. currency in the possession of Pizza-Hut-DeSoto, and in
the course thereof defendant, acting with another, displayed
what appeared to be a deadly weapon." He received 10
years in prison for the robbery, and a concurrent three years
for the ACA.
district court added three criminal-history points for the
robbery conviction under § 4A1.1(a), as authorized for a
prior sentence of imprisonment exceeding one year and one
month. Guideline 4A.1.1(e) then says to "add 1 point for
each prior sentence resulting from a conviction of a crime of
violence that did not receive any points under (a), (b), or
(c) above because such sentence was treated as a single
sentence . . . ." Accordingly, for the ACA conviction,
the court added one point. Miranda-Zarco objects to the ACA
point, claiming because the ACA arose out of the same conduct
as the burglary, it cannot be counted separately.
state law, the ACA conviction is separate and distinct from
the robbery conviction. In Missouri, first-degree robbery
occurs when a person
forcibly steals property and in the course thereof he, or
another participant in the crime,
(1) Causes serious physical injury to any person; or
(2) Is armed with a deadly weapon; or
(3) Uses or threatens the immediate use of a dangerous
instrument against any person; or
(4) Displays or threatens the use of what appears to be a
deadly weapon or dangerous instrument.
§ 569.020 RSMo. An ACA violation occurs when a person
commits any felony "by, with, or through the use,
assistance, or aid of a dangerous instrument or deadly weapon
. . . ." § 571.015 RSMo. An ACA punishment is
"in addition to" the punishment for the underlying
felony. Id. The Supreme Court of Missouri has held
that robbery and armed criminal action "are not the same
offense" for purposes of multiple prosecution because
"the expressed intent of the legislature" is to
punish the offenses cumulatively. State v. Flenoy,
968 S.W.2d 141, 144-45 (Mo. banc 1998), citing Missouri
v. Hunter, 459 U.S. 359, 367 (1983). The district court
correctly rejected Miranda-Zarco's claim. See United
States v. Watson, 65 ...