United States v. Octavious Stovall , 921 F.3d 758 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2298
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Octavious Tajuan Stovall
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: January 18, 2019
Filed: April 18, 2019
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Before BENTON, MELLOY, and KELLY, Circuit Judges.
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BENTON, Circuit Judge.
Octavious T. Stovall pled guilty to distribution of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1). The district court1 sentenced him as a career
offender to 120 months’ imprisonment. He appeals the career offender determination
1
The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.
under U.S.S.G. § 4B1.1. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
The Sentencing Guidelines enhance a defendant’s base level if the defendant
has “at least two prior felony convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a). Stovall concedes he has one conviction
for a controlled substance offense. However, he maintains his Arkansas convictions
for aggravated assault and robbery are not crimes of violence. This court reviews the
issue de novo. See United States v. McMillan, 863 F.3d 1053, 1055 (8th Cir. 2017).
Under the Sentencing Guidelines, a “crime of violence” is any offense “under
federal or state law, punishable by imprisonment for a term exceeding one year, that
. . . has as an element the use, attempted use, or threatened use of physical force
against the person of another,” or is one of a list of enumerated offenses (including
robbery). U.S.S.G. § 4B1.2(a).2 Determining whether Arkansas robbery is a crime
of violence, this court focuses on the elements of the crime, considering whether “the
state statute defining the crime of conviction categorically fits within the generic
federal definition of a corresponding crime of violence.” United States v. Kosmes,
792 F.3d 973, 975 (8th Cir. 2015). The “‘generic’ federal definition of a crime of
violence . . . mean[s] the sense in which the term is now used in the criminal codes
of most States.” Id. at 976 (internal quotation marks omitted). See Taylor v. United
States, 495 U.S. 575, 598 (1990) (considering the “generic, contemporary meaning”
of a crime).
2
Before the 2016 edition of the United States Sentencing Guidelines Manual,
robbery was not an enumerated offense in the guidelines. However, the 2016
U.S.S.G. Manual amended the guidelines, listing robbery as one of the enumerated
offenses under U.S.S.G. § 4B1.2(a). Stovall was sentenced on June 11, 2018. The
Presentence Investigation Report indicates that his sentence was computed using the
2016 edition of the U.S.S.G. Manual.
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“To determine whether a crime falls within the enumerated-offenses clause,”
this court begins “by identifying the elements of the generic enumerated offense.”
United States v. Schneider, 905 F.3d 1088, 1093 (8th Cir. 2018). “[T]he
enumerated-offenses clause and its accompanying commentary do not define most of
the generic offenses.” Id. But, “[t]he Supreme Court has explained that how ‘the
criminal codes of most States’ define an offense provides strong evidence of its
generic meaning.” Id. quoting Taylor, 495 U.S. at 598. In United States v. House,
825 F.3d 381 (8th Cir. 2016), this court defined “generic robbery” as “aggravated
larceny, or the misappropriation of property under circumstances involving immediate
danger to a person.” House, 825 F.3d at 387. See United States v. Lockley, 632 F.3d
1238, 1243 (11th Cir. 2011) (“[T]he generic form of robbery may be thought of as
aggravated larceny, containing at least the elements of misappropriation of property
under circumstances involving [immediate] danger to the person.”) (internal quotation
marks omitted); United States v. Santiesteban-Hernandez, 469 F.3d 376, 380 (5th
Cir. 2006), abrogated on other grounds by United States v. Rodriguez, 711 F.3d 541
(5th Cir. 2013) (“Although the precise state definitions vary, the generic form of
robbery ‘may be thought of as aggravated larceny,’ containing at least the elements
of ‘misappropriation of property under circumstances involving [immediate] danger
to the person.’”), quoting W. LaFave, Substantive Criminal Law § 20.3(e) intro.,
(d)(2) (2d ed. 2003).
At the time of Stovall’s conviction, Arkansas Code Annotated § 5-12-102 said:
(a) A person commits robbery if, with the purpose of committing a
felony or misdemeanor theft or resisting apprehension immediately
thereafter, he employs or threatens to immediately employ physical force
upon another.
Based on the plain language of the statute, Arkansas robbery has the same elements
as the generic definition of robbery.
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Arkansas case law confirms this. According to the Arkansas Supreme Court,
“in adopting the criminal code in 1975,” Arkansas changed the primary emphasis in
robbery “from the taking of property to the threat of physical harm to the victim.”
McElyea v. State, 200 S.W.3d 881, 883 (Ark. 2005) (internal quotation marks
omitted). Under Ark. Code Ann. § 5-12-102, “the gravamen of the crime of robbery
is the injury or threat of injury to the victim.” Richard v. State, 691 S.W.2d 872, 874
(Ark. 1985). See McElyea, 200 S.W.3d at 883 (“What makes theft robbery is the use
of force.”).
Relying on United States v. Eason, 829 F.3d 633 (8th Cir. 2016), Stovall
asserts his conviction does not meet the generic federal definition of robbery because
“immediate danger to another person is not a necessary element of Arkansas’s
robbery statute.” But Eason considered a different question than presented here.
There, the court considered whether Arkansas robbery was a violent felony under the
force clause of 18 U.S.C. § 924(e). Because the Arkansas Supreme Court previously
had upheld a robbery conviction “where there was no threat of force and no actual
injury,” this court held that “the degree of physical force required to commit robbery
in Arkansas” does not rise “to the level of physical force required to establish a crime
of violence for ACCA purposes.” Eason, 829 F.3d at 641-42.
Eason does not control the analysis here where the question concerns the
enumerated clause of § 4B1.2(a). Stovall’s reasoning conflates the issues of (1)
whether a conviction is a violent felony under 18 U.S.C. § 924(e), with (2) whether
a conviction is an enumerated offense under U.S.S.G. § 4B1.2. The inquiry here is
not whether the conviction involved the threat or use of “violent force,” but rather
whether the conviction is one for theft involving “immediate danger.” The terms
“violent force” and “immediate danger” are not synonymous. While Stovall cites
Arkansas cases that potentially involve actions insufficient to constitute “violent
force” under 18 U.S.C. § 924(e)—jerking a victim’s hand, blocking a victim’s exit,
cornering a victim, and grabbing a victim’s dress—the actions are sufficient to
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constitute “immediate danger.” See Parker v. State, 529 S.W.2d 860, 863 (Ark.
1975) (“[T]he 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.”).
Stovall’s Arkansas robbery conviction “fits within the generic federal
definition of” robbery. Kosmes, 792 F.3d at 975. See United States v. Farris, 312
Fed. Appx. 598, 599 (5th Cir. 2009) (holding that Arkansas aggravated robbery is a
crime of violence because “the Arkansas aggravated robbery statute, like the
Arkansas robbery statute, corresponds to the generic, contemporary meaning of
robbery as it involves misappropriation of property under circumstances involving
danger to another person”). The district court did not err in determining it was a
crime of violence.3 See United States v. Jones, 384 Fed. Appx. 542, 542 (8th Cir.
2010) (affirming the career offender enhancement based on an Arkansas robbery
conviction because “a robbery specifically enumerated in § 4B1.2 is a crime of
violence for career offender purposes”). See also Lockley, 632 F.3d at 1244-45
(holding that Florida robbery–defined as “the taking of money or other property
which may be the subject of larceny from the person or custody of another, with the
intent to either permanently or temporarily deprive the person or the owner of the
money or other property, when in the course of the taking there is the use of force,
violence, assault, or putting in fear”—meets the generic federal definition of robbery).
*******
The judgment is affirmed.
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3
Because Stovall’s Arkansas robbery conviction is a crime of violence, this
court need not consider his Arkansas assault conviction.
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