Submitted: December 15, 2017
Appeals from United States District Court for the Western
District of Arkansas - Texarkana
SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.\
2015, a jury convicted Bobby Joe Hampton on one count of
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). Hampton, an African-American man,
appeals the district court's partial denial of his
challenge, under Batson v. Kentucky, 476 U.S. 79
(1986), to the government's use of peremptory strikes
against two African-American potential jurors. The government
cross-appeals Hampton's sentence, arguing that it should
have been enhanced under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(1). We affirm in both
morning of Hampton's trial, the district court clerk drew
the names of 31 people to form a venire from which a
twelve-member jury and one alternate juror would be selected.
There were two African Americans in the venire, Juror 22 and
Juror 45. After voir dire, the government tried to use two of
its peremptory challenges to strike Juror 22 and Juror 45
from the venire. Hampton challenged the strikes under
response to Hampton's challenge, the government explained
why it wanted to strike the jurors: "[T]hey had negative
body language, arms crossed some of the time. Just not very
responsive to us." The government described Juror
45's body language as "worse" than Juror
22's because "45 didn't say anything." The
government also pointed to the fact that Juror 22 had
participated in a bench conference. The district court
explained that, during the bench conference, Juror 22 had
merely disclosed that she was the plaintiff in a pending
civil lawsuit. The government then again argued that Juror 22
had her "arms crossed basically the entire time, "
and insisted that "body language speaks volumes."
As to Juror 45, the government noted that she had not
responded to questioning during voir dire, and claimed she
had been unwilling to look at one of the government
attorneys. In the government's view, Juror 45 was
"clearly upset" when she was called to be on the
venire, which showed she did not want to be on the jury. The
government further explained that it would not have used a
peremptory strike against a third African American who had
appeared for jury duty that morning, but whose name was not
drawn for the venire; and that it had used a peremptory
challenge against another member of the venire who was not
African-American but who was also non-responsive during voir
dire. Finally, the government noted that a Hispanic man had
been seated on the jury.
district court sustained Hampton's challenge as to Juror
22, explaining that the government should have asked the
court about the bench conference had it caused concern. The
district court indicated that, during the conference, Juror
22 had not given the court the impression she was trying to
avoid jury service or said anything that would preclude her
from sitting on the jury. The district court overruled the
Batson challenge as to Juror 45 based on the
government's body-language argument. Juror 22 was seated
on the jury, and Juror 45 was excused. The jury thereafter
recommended that Hampton be sentenced under the ACCA based,
in part, on a 2006 Arkansas burglary conviction under Ark.
Code Ann. § 5-39-201(a). The district court determined
that Hampton's burglary conviction did not qualify as a
violent felony, declined to enhance his sentence under the
ACCA, and sentenced him to 87 months and 23 days in prison.
Hampton's Batson Challenge
"Constitution forbids striking even a single prospective
juror for a discriminatory purpose." Foster v.
Chatman, 136 S.Ct. 1737, 1747 (2016) (quoting Snyder
v. Louisiana, 552 U.S. 472, 478 (2008)). The Supreme
Court has provided a three-step process for determining
whether a strike is discriminatory:
First, a defendant must make a prima facie showing that a
peremptory challenge has been exercised on the basis of race;
second, if that showing has been made, the prosecution must
offer a race-neutral basis for striking the juror in
question; and third, in light of the parties'
submissions, the trial court must determine whether the
defendant has shown purposeful discrimination.
Id. (quoting Snyder, 552 U.S. at 476-77).
"We review Batson rulings for clear error,
according great deference to the district court's
findings, and 'keeping in mind that the ultimate burden
of persuasion regarding racial motivation rests with, and
never shifts from the party opposing the strike.'"
United States v. House, 825 F.3d 381, 385 (8th Cir.