United States v. Seneca Harrison ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-1340
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Seneca Harrison
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 19, 2022
Filed: October 17, 2022
[Unpublished]
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Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
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PER CURIAM.
Seneca Harrison knowingly exhibited a handgun in an angry or threatening
manner in the presence of one or more persons in 2008. He was thereafter convicted
of unlawful use of a weapon – exhibiting, in violation of Mo. Rev. Stat.
§ 571.030.1(4).
Following failed plea negotiations and a bench trial, Harrison was convicted
in 2018 of unlawful possession of a firearm as a previously convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was sentenced to 92 months’
imprisonment. On appeal, we concluded that the district court had committed plain
error by participating in the plea negotiations in violation of Federal Rule of Criminal
Procedure 11(c)(1). We vacated Harrison’s sentence and remanded the matter with
instructions that it be assigned to a different judge. United States v. Harrison, 974
F.3d 880, 883 (8th Cir. 2020). We issued the following instructions:
On remand, in addition to the usual factors, see 18 U.S.C. § 3553(a), the
court can consider the procedural history of the case, including the
likelihood that Harrison would have pleaded guilty without the error and
what his sentence might have been had he done so. Cf. U.S.S.G. § 3E1.1
cmt. n.2 (explaining that, “[i]n rare situations,” even “a defendant who
puts the government to its burden of proof at trial” may still qualify for
an acceptance-of-responsibility reduction).
Id.
The newly assigned district judge1 calculated Harrison’s advisory sentencing
range under the U.S. Sentencing Guidelines. The court determined that his base
offense level was 20 because his 2008 Missouri offense constituted a “crime of
violence.” See U.S.S.G. § 2K2.1(a)(4)(A). It also denied any offense-level reduction
for acceptance of responsibility. See U.S.S.G. § 3E1.1. With a total offense level of
24 and a criminal history category of V, Harrison’s Guidelines sentencing range was
92 to 115 months’ imprisonment. The district court varied downward and sentenced
Harrison to 87 months’ imprisonment.
1
The Honorable Beth Phillips, Chief Judge, United States District Court for the
Western District of Missouri.
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In this second appeal, Harrison argues that the district court erred in
determining his base offense level. He claims that his Missouri offense is not a
“crime of violence.” In United States v. Pulliam, we 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.” 566 F.3d 784, 788 (8th Cir. 2009). We
later upheld a determination that, under Pulliam, Mo. Rev. Stat. § 571.030.1(4)
qualified as a “crime of violence” under the Guidelines’s force clause. United States
v. Hudson, 851 F.3d 807, 810 (8th Cir. 2017).
Harrison acknowledges that Pulliam is binding precedent, but argues that en
banc review is necessary because we have not adequately considered Missouri’s
interpretation of Mo. Rev. Stat. § 571.030.1(4). This argument has been raised in
earlier cases, and, as then, Harrison “has not identified any pertinent developments
in Missouri law after 2009 that undermine this court’s conclusion in Pulliam.” See
United States v. Pryor, 927 F.3d 1042, 1044 (8th Cir. 2019). We are therefore bound
by our prior decisions absent en banc review. Mader v. United States, 654 F.3d 794,
800 (8th Cir. 2011) (en banc) (“It is a cardinal rule in our circuit that one panel is
bound by the decision of a prior panel.” (citation omitted)).
In his reply brief, Harrison argues that Pulliam is no longer good law in light
of Borden v. United States, 141 S. Ct. 1817 (2021). We considered this argument in
United States v. Larry, No. 21-3237 (8th Cir. Oct. 17, 2022), another decision filed
today. Larry concluded that Pulliam remains binding precedent because “Borden
holds only that the force clause categorically excludes offenses that can be committed
recklessly.” Id., slip op. at 4. We likewise reject Harrison’s Borden argument.
Harrison next argues that the district court erred in denying him an offense-
level reduction for acceptance of responsibility. He asserts that the court wrongly
believed it was without authority to grant the reduction because Harrison proceeded
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to a bench trial and did not plead guilty. We are confident that the district court
understood its authority to grant a reduction in light of the Guidelines commentary,
U.S.S.G. § 3E1.1 cmt. n.2, our instructions that quote that commentary, Harrison, 974
F.3d at 883, and the arguments at sentencing regarding whether Harrison’s pretrial
statements and conduct demonstrated acceptance of responsibility despite his decision
to go to trial. The district court’s decision to deny an acceptance-of-responsibility
reduction constituted the exercise of its discretionary judgment.
The judgment is affirmed.
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