United States v. Swopes, No. 16-1797 (8th Cir. 2018)

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After the Eighth Circuit vacated defendant's sentence on the ground that second-degree robbery in Missouri was not a violent felony under the reasoning of United States v. Bell, 840 F.3d 963, 965-67 (8th Cir. 2016), the en banc court held that the district court properly counted defendant's Missouri robbery conviction as a violent felony. The en banc court granted rehearing, overruled Bell, and then returned the case to this panel to resolve the balance of defendant's appeal.

The panel held that defendant's conviction for unlawful use of a weapon in Missouri was a conviction for a violent felony under 18 U.S.C. 924(e). Therefore, defendant sustained three previous convictions for a violent felony at the time of his offense in this case, and the district court properly applied the sentencing enhancement under the Armed Career Criminal Act.

Court Description: Per Curiam - Before Colloton, Melloy and Shepherd, Circuit Judges] Criminal case - Sentencing. For the court en banc's opinion in the matter concluding Swopes' Missouri robbery conviction was a violent felony, see U.S. v. Swopes, 886 F.3d 668 (8th Cir. 2018)(en banc). Unlawful use of a weapon in violation of Mo. Rev. Stat. Sec. 571.030.1(4) is a violent felony under 18 U.S.C. Sec. 924(3); Swopes therefore had three previous convictions for a violent felony and the district court properly applied the sentencing enhancement under the Armed Career Criminal Act.

This opinion or order relates to an opinion or order originally issued on March 10, 2017.

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-1797 ___________________________ United States of America, lllllllllllllllllllllPlaintiff - Appellee, v. Hosea Latron Swopes, lllllllllllllllllllllDefendant - Appellant. ____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________ Submitted: March 29, 2018 Filed: June 13, 2018 [Published] ____________ Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges. ____________ PER CURIAM. Hosea Swopes pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court1 1 The Honorable Ronnie L. White, United States District Judge for the Eastern District of Missouri. concluded that Swopes was subject to an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). The Act requires a minimum 15-year prison sentence for a felon in possession of a firearm who has sustained three previous convictions for a violent felony or a serious drug offense. The district court cited Swopes’s prior Missouri convictions for unlawful use of a weapon, second-degree robbery, and first-degree robbery as three violent felonies. Without the sentence enhancement, the statutory maximum punishment would have been ten years’ imprisonment. 18 U.S.C. § 924(a)(2). Swopes appealed his sentence and argued that the convictions for unlawful use of a weapon and second-degree robbery should not have counted as violent felonies. We vacated the judgment on the ground that second-degree robbery in Missouri was not a violent felony under the reasoning of United States v. Bell, 840 F.3d 963, 96567 (8th Cir. 2016). See United States v. Swopes, 850 F.3d 979 (8th Cir. 2017) (per curiam). The court then granted rehearing en banc, overruled Bell, and concluded that the district court properly counted Swopes’s Missouri robbery conviction as a violent felony. United States v. Swopes, 886 F.3d 668 (8th Cir. 2018) (en banc). The en banc court returned the case to this panel to resolve the balance of Swopes’s appeal. Swopes argues that unlawful use of a weapon, in violation of Mo. Rev. Stat. § 571.030.1(4), is not a violent felony. In United States v. Pulliam, 566 F.3d 784 (8th Cir. 2009), however, this court held that a violation of the statute qualifies categorically, because 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); see Pulliam, 566 F.3d at 788. Swopes argues that Pulliam was wrongly decided and also has been superseded by the Supreme Court’s decisions in Descamps v. United States, 570 U.S. 254 (2013), and Johnson v. United States, 559 U.S. 133 (2010). We considered a similar argument in United States v. Hudson, 851 F.3d 807 (8th Cir. 2017), and concluded that Pulliam was not superseded by Descamps or Johnson, or -2- by developments in Missouri law. Id. at 809-10. Swopes also contends that Pulliam is inconsistent with the decision in United States v. Jordan, 812 F.3d 1183 (8th Cir. 2016), concerning a conviction for aggravated assault in Arkansas. But Jordan, of course, involved a different state statute; the Jordan panel could not overrule Pulliam’s conclusion about the Missouri statute and did not purport to do so. In light of Pulliam and Hudson, we conclude that Swopes’s conviction for unlawful use of a weapon in Missouri was a conviction for a violent felony under § 924(e). Swopes therefore had sustained three previous convictions for a violent felony at the time of his offense in this case, and the district court properly applied the sentencing enhancement under the Armed Career Criminal Act. The judgment of the district court is affirmed. ______________________________ -3-

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