United States v. Dominic Smith , 928 F.3d 714 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3760
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Dominic L. Smith
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Western Division
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Submitted: January 14, 2019
Filed: June 27, 2019
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Before LOKEN, GRASZ, and STRAS, Circuit Judges.
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GRASZ, Circuit Judge.
Dominic L. Smith appeals the sentence imposed after his guilty plea to one
count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).
He argues the district court1 erred in calculating his Guidelines range. We affirm.
1
The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.
At sentencing, the district court calculated Smith’s base offense level at 26
because he had at least two felony convictions of either a crime of violence or a
controlled substance offense. U.S. Sentencing Guidelines Manual (“U.S.S.G.” or
“Guidelines”) § 2K2.1(a)(1). Smith had a criminal history of VI, and other
adjustments led to a final offense level of 29, which resulted in a recommended range
of 151 to 188 months of imprisonment. The statute, however, restricted Smith’s
actual Guidelines range to a maximum of 120 months. The district court imposed the
statutory maximum.
Smith concedes he has a conviction for a controlled substance offense but
argues for the first time on appeal that his prior conviction for Arkansas aggravated
robbery does not qualify as a crime of violence. Although we generally review the
interpretation of the Guidelines de novo, United States v. Watson, 650 F.3d 1084,
1091 (8th Cir. 2011), we review issues raised for the first time on appeal for plain
error, United States v. Thomas, 790 F.3d 784, 786 (8th Cir. 2015). In order to prevail,
Smith must show “(1) there was error, (2) the error was plain, and (3) the error
affected his substantial rights.” Id. (quoting United States v. Miller, 557 F.3d 910,
916 (8th Cir. 2009)).
We have previously held Arkansas robbery is not a violent felony under the
Armed Career Criminal Act (“ACCA”). United States v. Eason, 829 F.3d 633, 642
(8th Cir. 2016). The ACCA defines violent felonies to include any felony that “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) (referred to as the “elements clause”
or the “force clause”). In Eason, we observed that Arkansas robbery requires less
force than the violent force required by the elements clause, 829 F.3d at 642, and the
same definition applies to a ‘crime of violence’ under the Guidelines. See U.S.S.G.
§ 4B1.2(a)(1); see also United States v. Furqueron, 605 F.3d 612, 614 (8th Cir.
2010). Our opinion in Eason relied on applying the standard for violent force thought
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to be required by Curtis Johnson v. United States, 559 U.S. 133, 140 (2010), to the
elements clause of the ACCA. 829 F.3d at 640–41.
Recently, though, the Supreme Court, also considering the ACCA, has
concluded the force required in the elements clause is the same as the force in generic
robbery in the enumerated offenses clause. See Stokeling v. United States, 139 S. Ct.
544, 551 (2019). Thus, after Stokeling, for purposes of robbery we treat the level of
force as the same under both the elements clause and the enumerated offense.
Plainly stated, Stokeling abrogated our force analysis in Eason. Stokeling
elucidated Curtis Johnson by clarifying that the elements clause only requires that
“[s]ufficient force must be used to overcome resistance . . . however slight the
resistance.” See Stokeling, 139 S. Ct. at 551 (quoting W. Clark & W. Marshall, Law
of Crimes 553 (H. Lazell ed., 2d ed. 1905)). The Court noted the force in the
elements clause is derived from the definition of common law robbery. See id. The
key distinction in determining whether a state robbery statute meets this definition of
force is whether the “statute requires ‘resistance by the victim that is overcome by the
physical force of the offender’” or encompasses “[m]ere ‘snatching of property from
another.’” Id. at 555 (quoting Robinson v. State, 692 So. 2d 883, 886 (Fla. 1997)).
This court’s recent decision in United States v. Swopes reached a similar
conclusion on the definition of force. 886 F.3d 668, 671 (8th Cir. 2018) (en banc).
We found a Missouri robbery statute satisfied the elements clause because the statute
required sufficient force to overcome a victim’s resistance. Id. at 671. We observed
that Missouri courts allowed a conviction where “there was a ‘[t]ussle’ between the
defendant and the victim,” id. at 672 (quoting State v. Childs, 257 S.W.3d 655, 660
(Mo. Ct. App. 2008) (alteration in original)), but overturned a conviction “where the
defendant merely ‘grabbed the [victim’s] purse by its strap, took it from her shoulder
and ran off,’” id. (quoting State v. Tivis, 884 S.W.2d 28, 29 (Mo. Ct. App. 1994)).
We also applied this definition from both Swopes and Stokeling in another recent
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decision reviewing a Minnesota robbery statute. See Taylor v. United States, No.
17-1760, 2019 WL 2407746, at *2 (8th Cir. June 7, 2019).
Here, we conclude Arkansas robbery also requires the same level of force as
this understanding of common law robbery. In determining whether an offense is a
crime of violence, “we apply a categorical approach, looking to the elements of the
offense to determine whether the conviction constitutes a crime of violence.”
Furqueron, 605 F.3d at 614. We consider “both the text of the statute and how the
state courts have applied the statute.” Swopes, 886 F.3d at 671.
In relevant part, the Arkansas robbery statute provides that “[a] person commits
robbery if . . . the person employs or threatens to immediately employ physical force
upon another person.” Ark. Code Ann. § 5-12-102. The Arkansas Supreme Court
has explained that the adoption of a criminal code in 1975 changed Arkansas’s
robbery statute from emphasizing “the taking of property to ‘the threat of physical
harm to the victim.’” McElyea v. State, 200 S.W.3d 881, 883 (Ark. 2005) (quoting
Jarrett v. State, 580 S.W.2d 460, 461 (Ark. 1979)). It has found “jerking the door
from [a victim], cornering her in the back hallway and grabbing her dress” constitutes
sufficient force for robbery because that conduct overcame resistance. Fairchild v.
State, 600 S.W.2d 16, 17 (Ark. 1980). In contrast, the Arkansas Supreme Court has
stated “the mere snatching of money or goods from the hand of another is not
robbery, unless some injury is done to the person or there be some struggle for
possession of the property prior to the actual taking or some force used in order to
take it.” Parker v. State, 529 S.W.2d 860, 863 (Ark. 1975).
From these decisions, we understand that Arkansas robbery requires sufficient
force to overcome a victim’s resistance and does not criminalize mere snatching of
property. Arkansas robbery, then, satisfies both the elements clause and generic
robbery in the enumerated offenses clause of U.S.S.G. § 4B1.2.
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As a result, we conclude both Arkansas robbery and Arkansas aggravated
robbery are crimes of violence. An offense is a crime of violence if its lesser included
offense is a crime of violence. See United States v. Douglas, No. 11CR324, 2017 WL
4737243, at *3 (D. Minn. Oct. 19, 2017). Under Arkansas law, “[r]obbery is a lesser-
included offense of aggravated robbery.” Brown v. State, 60 S.W.3d 422, 425 (Ark.
2001). It follows that because Arkansas robbery is a crime of violence, Arkansas
aggravated robbery is also a crime of violence. Thus, we hold the district court
properly categorized Smith’s prior conviction for Arkansas aggravated robbery as a
crime of violence for purposes of U.S.S.G. § 2K2.1(a)(1).
Accordingly, we affirm the judgment of the district court.
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