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United States v. Bell

United States Court of Appeals, Eighth Circuit

October 28, 2016

United States of America Plaintiff- Appellee
v.
Iyaun D. Bell Defendant-Appellant

          Submitted: April 14, 2016

         Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau

          Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.

          BRIGHT, Circuit Judge.

         Iyaun Bell pleaded guilty to being a felon in possession of a firearm. Prior to sentencing, the district court calculated Bell's advisory Guidelines range based in part on the conclusion that Bell had a prior conviction that qualified as a "crime of violence" under United States Sentencing Guidelines Manual (U.S.S.G.) § 2K2.1(a)(4)(A), a calculation which increased the advisory Guidelines range. After the district court sentenced Bell to thirty-seven months of imprisonment, Bell filed this appeal arguing his prior conviction does not qualify as a crime of violence. We reverse and remand for resentencing.

         I

         On March 14, 2015, an officer initiated a vehicle stop. The officer observed the driver throw an object out of the vehicle's window. The officer went to the area where the object landed and located a firearm with eight rounds of ammunition. The driver fled. Police eventually apprehended the driver and identified him as Bell.

         A federal grand jury indicted Bell with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Bell pleaded guilty. Prior to sentencing, a probation officer completed a Presentence Investigation Report (PSR). The PSR calculated a base-offense level of 20 after concluding Bell had a conviction under Missouri law for second-degree robbery that qualified as a "crime of violence." See U.S.S.G. § 2K2.1(a)(4)(A) (providing for a base-offense level of 20 if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of . . . a crime of violence"). Bell objected. The district court rejected Bell's objection, adopted the PSR's recommendation, and calculated Bell's advisory Guidelines range at 37-46 months. The district court then sentenced Bell to thirty-seven months of imprisonment. This timely appeal followed.

         II

         A

         Bell argues his prior conviction for second-degree robbery should not have been used to increase his base-offense level because it does not qualify as a crime of violence. "We review de novo a district court's determination that an offense qualifies as a crime of violence under the Guidelines." United States v. Harrison, 809 F.3d 420, 425 (8th Cir. 2015). Unless a statute is divisible, i.e., defines multiple offenses some of which would qualify as crimes of violence and some of which would not, we "focus on the generic elements of the offense and not on the specific facts underlying [the defendant's] conviction." United States v. Gordon, 557 F.3d 623, 625 (8th Cir. 2009); see also United States v. Ossana, 638 F.3d 895, 899-900 (8th Cir. 2011) (explaining the difference between the categorical approach applicable to indivisible statutes, and the modified categorical approach applicable to divisible statutes).

         Section 2K2.1 incorporates the definition of "crime of violence" used in § 4B1.2(a). See U.S.S.G. § 2K2.1 cmt. n.1. Under the relevant provision of § 4B1.2(a), the phrase "crime of violence" means "any offense [that] . . . has as an element the use, attempted use, or threatened use of physical force against the person of another." In Missouri, "[a] person commits the crime of robbery in the second degree when he forcibly steals property." Mo. Rev. Stat. § 569.030.1. The term "forcibly steals" is further defined in a separate statute providing in relevant part that "a person 'forcibly steals, ' and thereby commits robbery, when, in the course of stealing . . . he uses or threatens the immediate use of physical force upon another person." Mo. Rev. Stat. § 569.010(1).[1] Accordingly, Missouri courts have identified § 569.030.1 as setting forth a single indivisible crime containing two generic elements: "stealing and the use of actual or threatened force." Maclin v. State, 184 S.W.3d 103, 109 (Mo.Ct.App. 2006); see also Hughes v. State, 204 S.W.3d 376, 381 (Mo.Ct.App. 2006).[2]

         At first blush, then, it appears as though Bell's conviction would qualify as a crime of violence: a crime of violence has as an element the use, attempted use, or threatened use of physical force against another person, and an element of second-degree robbery in Missouri is the use or threat of "physical force upon another person." Mo. Rev. Stat. § 569.010(1).

         The amount of physical force required for a person to be convicted of second-degree robbery in Missouri does not, however, "necessarily" rise to the level of physical force required for a crime of violence under the Guidelines. See Ossana, 638 F.3d at 900 (explaining a conviction must "necessarily" involve the use, attempted use, or threatened use of physical force to qualify as a crime of violence under the Guidelines). The Supreme Court has described this as a "demanding requirement." Shepard v. United States, 544 U.S. 13, 24 (2005) (plurality opinion).

         According to the Supreme Court, "physical force" means "violent force-that is, force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2010).[3] Thus, the "merest touch" is insufficient, but the "degree of force necessary to inflict pain-a slap in the face, for example" is sufficient to establish "physical force." Id. at 143. When determining whether Missouri's second-degree robbery statute requires the level of violent force described in Johnson, we must consider not just the language of the state statute involved, but also the Missouri courts' interpretation of the elements of second-degree robbery. See id. at 138 ("We are . . . bound by the [state] Supreme Court's interpretation of state law, including its determination of the elements of [the state statute.]"); see also Western Heritage Ins. Co. v. ...


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