United States v. Hosea Swopes , 892 F.3d 961 ( 2018 )


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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
    , 965-
    67 (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-
    

Document Info

Docket Number: 16-1797

Citation Numbers: 892 F.3d 961

Judges: Colloton, Melloy, Per Curiam, Shepherd

Filed Date: 6/13/2018

Precedential Status: Precedential

Modified Date: 10/19/2024