Submitted: September 19, 2016
from United States District Court for the Western District of
Missouri - Kansas City
WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
E. Dace pleaded guilty to a one-count indictment charging him
with being a felon in possession of firearms in violation of
18 U.S.C. §§ 922(g) and 924(a)(2). At sentencing,
the district court discussed Dace's objections to
categorization of two of Dace's prior convictions as
crimes of violence: resisting arrest and second-degree
robbery. The district court sustained Dace's objection
with respect to the resisting arrest conviction, but found
over Dace's objection that Dace's prior Missouri
conviction for second-degree robbery constituted a crime of
violence for purposes of sentencing. Dace appeals. Though the
district court erred in concluding that Dace's
second-degree robbery conviction qualifies as a crime of
violence, we find that error to be harmless.
January 20, 2014, Independence, Missouri, police officers
received a report of suspicious activity in a Kohl's
Department Store parking lot. Officers were told that a black
Monte Carlo had entered the parking lot, and a male passenger
had exited the car and was crouching between parked cars.
When police later attempted to stop the Monte Carlo, a
high-speed chase ensued. The Monte Carlo was ultimately found
abandoned, but the license plate was traced to Dace.
went to Dace's address, where Dace's girlfriend
consented to a search of the house. During the search,
officers discovered seven guns and found Dace hiding in a
basement crawl space. Dace pleaded guilty to a one-count
indictment charging him with being a felon in possession of
firearms. At sentencing, the district court found that
because Dace's prior conviction for Missouri
second-degree robbery in violation of Mo. Rev. Stat. §
569.030 constituted a crime of violence under USSG §
4B1.2(a)(1), Dace was subject to a sentencing enhancement
pursuant to § 2K2.1(a)(4). Applying the enhancement,
Dace's Guidelines range was 46-57 months, but the court
varied upward to impose a sentence of 75 months. The court
explained that it would have imposed the same sentence even
if it had concluded that the Missouri second-degree robbery
conviction did not constitute a crime of violence,
highlighting the dangerous nature of the crime and what it
considered to be Dace's particularly violent criminal
argues that the district court erred in determining that a
conviction under Missouri's second-degree robbery statute
is a crime of violence under USSG § 4B1.2(a)(1) and
therefore applying a sentencing enhancement for a prior crime
of violence conviction under § 2K2.1(a)(4). While
Dace's appeal was pending, our court addressed this very
issue. United States v. Bell, ___F.3d.___, 2016 WL
6311084, at *1-3 (8th Cir. 2016) (discussing Johnson v.
United States, 559 U.S. 133, 140 (2010)). We held that a
conviction for second-degree robbery in Missouri does not
trigger an enhancement under § 2K2.1-which incorporates
the definition of "crime of violence" articulated
in § 4B1.2-because it does not have, as an element of
the offense, the use of violent force. Id. at *3
(addressing whether Missouri second-degree robbery qualifies
as a crime of violence under only the force clause of §
4B1.2). Therefore, the district court erred in determining
that Dace's second-degree robbery conviction warranted a
sentencing enhancement for a prior crime of violence.
failure to properly calculate the advisory Guidelines range
is a significant procedural error . . . ." United
States v. Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008).
Where, as here, a defendant preserves a Guidelines challenge,
we review for harmless error. United States v.
Martinez, 821 F.3d 984, 988 (8th Cir. 2016). "[T]he
Government bears the burden of persuasion to demonstrate that
the error was harmless, that is, that the error did not
affect [Dace's] substantial rights."
Spikes, 543 F.3d at 1025.
incorrect Guidelines calculation "'is harmless error
where the district court specifies the resolution of a
particular issue did not affect the ultimate determination of
a sentence, ' such as when the district court indicates
it would have alternatively imposed the same sentence even if
a lower guideline range applied." Martinez, 821
F.3d at 988-89 (internal citations omitted) (quoting
United States v. Thibeaux, 784 F.3d 1221, 1227 (8th
Cir. 2015)). While in some cases a court sentencing a
defendant under an incorrect Guidelines range may require
remand without any further showing of prejudice, when a
district court's detailed explanation for the sentence
imposed makes "clear that the judge based the sentence
he or she selected on factors independent of the Guidelines,
" the error may be harmless. United States v.
Molina-Martinez, 136 S.Ct. 1338, 1346-47 (2016); see
United States v. Icaza, 492 F.3d 967, 970-71 (8th Cir.
2007) (district court's explanation must be sufficiently
detailed in order to establish harmless error).
the district court varied upward from the 46-57-month
Guidelines range and sentenced Dace to a 75-month term of
imprisonment. In so doing, the district court engaged in
a thorough discussion of the § 3553(a) factors. The
court highlighted Dace's particular characteristics,
noting that Dace had "one of the most violent records
for someone your age that I've seen, " including
participation in robberies resulting in bodily injury to the
victims. The court emphasized that Dace had previously been
sentenced to at least one six-year term of imprisonment, to
no apparent deterrent effect, and expressed the view that
"you don't get less time the more felonies you
commit." The court repeatedly stressed the need for
deterrence and the need to protect the public.
court also discussed the nature and circumstances of the
instant offense, including the attendant, and very dangerous,
high-speed chase. The court explained that leading police on
a high-speed chase often results in injury or death, and
poses a substantial threat to innocent bystanders. And, in
explaining that it would have imposed the same sentence had
it not applied the enhancement for a prior crime of violence,
the court explicitly noted that its upward variance was based
on "the very serious nature of this offense, " and
"the danger to the public." The court made clear
that it relied on the § 3553(a) factors-independent of
the Guidelines range-in deciding to vary upward. Cf.
United States v. Mulverhill, 833 F.3d 925, 931 (8th Cir.
2016) (remanding for procedural error when "[t]he
district court made no affirmative statements or indications
of its intention to impose the same sentence even if [the
defendant's] total offense level were lower");
Icaza, 492 F.3d at 971 (remanding where district
court's explanation for alternative sentence was not
sufficiently detailed). The district court both provided a
detailed explanation of its reasons for the upward ...