Submitted: May 13, 2019
from United States District Court for the Eastern District of
Missouri - St. Louis
COLLOTON, BEAM, and SHEPHERD, Circuit Judges.
October 2014, Melvin Pryor pleaded guilty to a single-count
indictment of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). In the presentence
investigation report, the probation officer concluded that
Pryor was an Armed Career Criminal (ACC) based on the
existence of at least three prior convictions for a violent
felony or serious drug offense, or both, and thus suggested
that the district court enhance Pryor's Guidelines sentence
accordingly. Pryor argued that although our circuit law
dictates otherwise, certain of his prior convictions should
not qualify as "violent felonies" under the Armed
Career Criminal Act (ACCA), and the legal matter should be
revisited by the en banc court. The district court, applying
circuit precedent, sentenced Pryor as an ACC (18 U.S.C.
§ 924(e)(1)) to the statutory minimum term of 180 months
imprisonment, followed by three years of supervised release.
defendant has three prior convictions "for a violent
felony or a serious drug offense," 18 U.S.C. §
924(e)(1) imposes a mandatory minimum sentence of fifteen
years. Relevant here, a violent felony is a crime punishable
by imprisonment for at least one year and "has as an
element the use, attempted use, or threatened use of physical
force against the person of another." Id.
§ 924(e)(2)(B)(i). When determining whether a crime
qualifies as a violent felony, we are generally limited to
examining only the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the
defendant assented, rather than the underlying facts of the
crime committed. Shepard v. United States, 544 U.S.
13, 26 (2005); United States v. Pulliam, 566 F.3d
784, 788 (8th Cir. 2009). "This court reviews de novo
whether a prior conviction is a crime of violence."
United States v. Minnis, 872 F.3d 889, 891 (8th Cir.
2017), cert. denied, 138 S.Ct. 1581 (2018).
appeal Pryor challenges the application of the ACCA at his
sentencing, particularly challenging the inclusion of two of
his Missouri convictions as violent felonies for purposes of
the enhancement-his Missouri conviction for the offense of
unlawful use of a weapon, Mo. Rev. Stat. §
571.030.1(4); and his Missouri conviction for
first-degree assault, Mo. Rev. Stat. §
565.050.1. This panel's response to each of
Pryor's arguments is dictated by circuit precedent but
Pryor advances his claims in hopes of en banc review of these
the unlawful use of a weapon offense, this court has plainly
held that "Missouri's crime of unlawful use of a
weapon meets the statutory definition of violent felony in
§ 924(e)(2)(B)(i), because it involves the use,
attempted use, or threatened use of physical force against
the person of another." Pulliam, 566 F.3d at
788 (quotation omitted). "It goes without saying that
displaying an operational weapon before another in an angry
or threatening manner qualifies as threatened use of physical
force against another person." Id. Pryor argues
that although Pulliam is binding precedent, and has
been reaffirmed recently in United States v. Hudson,
851 F.3d 807, 809-10 (8th Cir. 2017), and United States
v. Swopes, 892 F.3d 961, 962 (8th Cir. 2018), cert.
denied, 139 S.Ct. 1546 (2019), en banc review is
necessary because this court has not adequately considered
Missouri's own interpretation of this statute.
Essentially he claims that as interpreted by the state
courts, the Missouri statute falls short of the requirement
that it "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). However,
even with the factual scenarios he posits (including, for
example, the mental state required, and to whom or at what
the exhibiting must be directed), Pryor has not identified
any pertinent developments in Missouri law after 2009 that
undermine this court's conclusion in Pulliam.
Although Pryor believes our court's cases on the matter
were wrongly decided, we are bound by them absent en banc
review. United States v. Eason, 829 F.3d 633, 641
(8th Cir. 2016) ("It is a cardinal rule in our circuit
that one panel is bound by the decision of a prior
panel." (quoting United States v. Anderson, 771
F.3d 1064, 1066-67 (8th Cir. 2014))).
additionally argues that his Missouri conviction for
first-degree assault does not qualify as a predicate offense
under the ACCA. Again, while acknowledging contrary, binding
circuit precedent in United States v. Winston, 845
F.3d 876, 878 (8th Cir. 2017), Pryor claims that because the
Missouri statute can be satisfied by mere causation of
serious injury, which may be accomplished by use of
non-violent force such as poisoning, it does not necessarily
require the use of "violent" force against another
person as contemplated by the ACCA (i.e., that the Missouri
statute criminalizes conduct that is broader than the
necessary violent force contemplated by the ACCA). He argues
this particular matter was not adequately addressed in
Winston and remains ripe for review en banc.
However, this court recently reviewed the matter in
Minnis. In Minnis, we affirmed the analysis
in Winston, which likewise cited guidance from
United States v. Castleman, 134 S.Ct. 1405, 1414-15
(2014), and held that "[p]hysical force . . . need not
be applied directly to the body of the victim. Hypothetical
scenarios involving no physical contact by the perpetrator
(luring a victim to drink poison or infecting a victim with a
disease) do not avoid coverage under §
924(e)(2)(B)(i)." Minnis, 872 F.3d at 892
(quoting Winston, 845 F.3d at 878) (second
alteration in original). Absent en banc review, this court is
bound by Winston and Minnis.
Eason, 829 F.3d at 641.
judgment of the district court is affirmed.
 The Honorable Rodney W.
Sippel, Chief Judge, United States District Court for the
Eastern District of Missouri.
Under Missouri law a person commits the crime of unlawful use
of a weapon if he knowingly "[e]xhibits, in the presence
of one or more persons, any weapon readily capable of lethal
use in an angry or threatening manner." ...