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United States v. Swopes

United States Court of Appeals, Eighth Circuit

March 29, 2018

United States of America, Plaintiff - Appellee,
v.
Hosea Latron Swopes, Defendant-Appellant.

          Submitted: September 19, 2017

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before SMITH, Chief Judge, WOLLMAN, LOKEN, MELLOY, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc. [1]

          COLLOTON, CIRCUIT JUDGE.

         This appeal presents the question whether Hosea Swopes's prior conviction for second-degree robbery in Missouri is a "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). We conclude that the district court[2]properly classified Swopes's robbery conviction as a violent felony, and we overrule the panel decision to the contrary in United States v. Bell, 840 F.3d 963 (8th Cir. 2016).

         I.

         Hosea Swopes pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g). The district court concluded that Swopes was subject to an enhanced sentence under the ACCA. The ACCA establishes a minimum term of fifteen years' imprisonment for unlawful possession of a firearm by a previously convicted felon who has sustained three prior convictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e). The district court cited Swopes's prior Missouri convictions for unlawful use of a weapon, second-degree robbery, and first-degree robbery as three violent felonies.

         Swopes argued in his opening brief on appeal that unlawful use of a weapon, in violation of Mo. Rev. Stat. § 571.030.1(4), is not a violent felony. After the case was submitted, Swopes filed a supplemental brief to argue, based on the intervening circuit precedent of Bell, that second-degree robbery, in violation of Mo. Rev. Stat. § 569.030.1 (1979), also does not qualify. The panel concluded that Bell was controlling and vacated Swopes's sentence on the ground that second-degree robbery was not a violent felony under circuit precedent. The government then petitioned for rehearing en banc and urged the court to reconsider Bell. The court granted the petition and vacated the panel decision.

         II.

         Swopes was convicted in 1994 of second-degree robbery under Mo. Rev. Stat. § 569.030.1 (1979). Under that statute, a person commits second-degree robbery "when he forcibly steals property." Id. A person "forcibly steals" when, in the course of stealing:

he uses or threatens the immediate use of physical force upon another person for the purpose of: (a) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (b) Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft[.]

Mo. Rev. Stat. § 569.010(1) (1979).[3]

         The ACCA defines "violent felony" to include an offense that "has 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). "[P]hysical force" means "force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2010). Under the categorical approach that governs analysis of the ACCA, we focus on the elements of the state statute and consider whether a violation necessarily satisfies the federal definition of violent felony. Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). Therefore, Swopes's conviction for second-degree robbery is a conviction for a "violent felony" only if a conviction under Mo. Rev. Stat. § 569.030.1 (1979) requires the use, attempted use, or threatened use of such force.

         Missouri second-degree robbery has as an element the use of physical force upon another person or the threat of an immediate use of such force. Mo. Rev. Stat. § 569.010(1) (1979). In Bell, however, a panel of this court determined that Missouri second-degree robbery was not a "crime of violence" under the United States Sentencing Guidelines, which encompasses an offense punishable by a year in prison that "has as an element the use, attempted use, or threatened use of physical force against the person of another." USSG § 4B1.2(a). See 840 F.3d at 966-67. The panel rested its holding on State v. Lewis, 466 S.W.3d 629 (Mo.Ct.App. 2015), where a Missouri court upheld a conviction for second-degree ...


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