Submitted: September 24, 2018
from United States District Court for the Western District of
Missouri - Kansas City
SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.
Shine received a 72-month prison sentence for being a felon
in possession of a firearm. On appeal, he challenges the
district court's decision to treat his prior Missouri
conviction of attempted first-degree robbery as a "crime
of violence." See U.S.S.G. §
2K2.1(a)(4)(A). We affirm.
Sentencing Guidelines establish a higher base offense level
for a felon-in-possession who has a prior conviction for a
"crime of violence." Id. A "crime of
violence" includes, among other things, "any
offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that . . . has as
an element the use, attempted use, or threatened use of
physical force against the person of another."
Id. § 4B1.2(a)(1). To determine whether an
offense meets this definition, we look to the "elements
of the offense as defined in the statute of conviction rather
than to the facts underlying [the] prior conviction."
United States v. Fields, 863 F.3d 1012, 1014 (8th
Cir. 2017) (ellipsis and citation omitted).
time of Shine's prior conviction, Missouri's
first-degree-robbery statute provided as follows: "A
person commits the crime of robbery in the first degree when
he forcibly steals property and in the course thereof he, or
another participant in the crime, [commits one of several
aggravating factors]." Mo. Rev. Stat. § 569.020.1
(1979). Violations were punishable by over one year in
prison. See id. §§ 569.020.2, 558.011.1(1)
offense qualifies as a "crime of violence." In
addition to imposing a sentence "exceeding one
year" in prison, U.S.S.G. § 4B1.2(a), the
first-degree-robbery statute required an individual to
"forcibly steal property," Mo. Rev. Stat. §
569.020.1, which necessarily involved the "use,
attempted use, or threatened use of physical force against
the person of another," U.S.S.G. § 4B1.2(a)(1).
Indeed, we recently concluded that a prior version of
Missouri's second-degree-robbery statute, which
consisted of only the forcibly-steals-property
element, see Mo. Rev. Stat § 569.030.1 (1979),
counted as a "violent felony" under the Armed
Career Criminal Act ("ACCA"), see United States
v. Swopes, 886 F.3d 668, 670-71 (8th Cir. 2018) (en
banc) (citing 18 U.S.C. § 924(e)(2)(B)(i)). As we
explained, the statute "require[d] proof [of] physical
force or threatened . . . physical force," and there was
"no realistic probability that Missouri courts would
apply [the law] to conduct that does not involve force that
is capable of causing physical pain or injury."
Id. at 672; see also id. at 671-72
(collecting state-court decisions).
follows that first-degree robbery, which also has the element
of "forcibly steal[ing] property," Mo. Rev. Stat.
§ 569.020.1, is a crime of violence. To be sure,
Swopes addressed the phrase "violent
felony," found in ACCA, and not "crime of
violence," which appears in the Guidelines. But
"[a]s we have recognized, the definition of 'crime
of violence' . . . is nearly identical to the definition
of 'violent felony.'" United States v.
Craig, 630 F.3d 717, 723 (8th Cir. 2011) (internal
quotation marks, brackets, and citation omitted); see
also United States v. Vinton, 631 F.3d 476, 484 (8th
Cir. 2011) (highlighting "the similar structure and
wording of the two provisions"). And as relevant here,
both require a prior crime to involve "physical
force" that is "capable of causing physical pain or
injury to another person." United States v.
Rice, 813 F.3d 704, 706 (8th Cir. 2016) (citation
omitted) (defining "crime of violence");
Swopes, 886 F.3d at 670 (defining "violent
felony"). We have already held that Missouri's
former second-degree-robbery statute involves physical force,
so we must do so again here.
makes no difference that Shine's conviction was for
attempted first-degree robbery rather than the
completed crime. His attempt was still punishable by more
than one year in prison, see Mo. Rev. Stat.
§§ 558.011.1(2), 564.011.3(1) (1979), 569.020.2,
and the definition of "crime of violence" includes
the "attempted use . . . of physical force,"
U.S.S.G. § 4B1.2(a)(1); see also id. §
4B1.2 cmt. n.1 (explaining that a "[c]rime of violence .
. . include[s] the offense of . . . attempting to commit
such [an] offense"); United States v. Minnis,
872 F.3d 889, 892 (8th Cir. 2017) (holding that a conviction
under Missouri's attempted-first-degree-assault
statute qualifies as a crime of violence). So Shine's
affirm the district court's judgment.
The Honorable Greg Kays, Chief Judge,
United States District Court for the Western District of