United States v. Dominique Tipler ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1629
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United States of America
Plaintiff - Appellee
v.
Dominique D. Tipler
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri
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Submitted: January 13, 2023
Filed: May 3, 2023
[Unpublished]
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Before GRASZ, MELLOY, and KOBES, Circuit Judges.
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PER CURIAM.
Dominique D. Tipler pled guilty to unlawfully possessing a firearm as a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district
court1 calculated an advisory sentencing range of 77 to 96 months of imprisonment
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for
the Eastern District of Missouri.
under the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) and
then imposed a sentence of 96 months. The Guidelines calculation was higher than
it otherwise would have been because the district court concluded Tipler had two
prior felony convictions that were “either a crime of violence or a controlled
substance offense.” U.S.S.G. § 2K2.1; see also U.S.S.G. § 4B1.2(a)(1) (defining a
“crime of violence” as including “any offense under . . . 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”).
Tipler’s sole argument on appeal is that the district court wrongly determined
his past conviction under Missouri law for exhibiting a lethal weapon was a “crime
of violence.” See Mo. Rev. Stat. § 571.030.1(4) (prohibiting “knowingly . . .
[e]xhibit[ing], in the presence of one or more persons, any weapon readily capable
of lethal use in an angry or threatening manner”). Tipler acknowledges we have
held convictions under this Missouri statute qualify as a crime of violence under
U.S.S.G. § 4B1.2(a)(1)’s force clause. See, e.g., United States v. Hudson, 851 F.3d
807, 809–10 (8th Cir. 2017). Nonetheless, Tipler argues the Supreme Court’s
plurality decision in Borden v. United States, 141 S. Ct. 1817 (2021), changed the
legal landscape, effectively nullifying precedent such as Hudson. Because of
Borden, Tipler contends, a criminal statute must include force (or threatened force)
“targeted against the person of another intentionally designed to cause them harm”
in order to fit within § 4B1.2(a)(1)’s force clause. Because the Missouri statute at
issue lacks such an intent-to-harm (or threaten harm) requirement, Tipler argues it
does not qualify as a crime of violence.
Tipler’s reading of Borden conflicts with our more narrow interpretation of
its holding. We have read Borden as holding “only that the force clause categorically
excludes offenses that can be committed recklessly.” United States v. Larry, 51
F.4th 290, 292 (8th Cir. 2022). Under this view, we held in Larry that a conviction
under this Missouri statute still qualifies as a crime of violence because it requires
the prohibited exhibition of the lethal weapon “be committed with knowledge.” Id.We are bound by this holding. See Mader v. United States, 654 F.3d 794, 800 (8th
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Cir. 2011) (en banc) (“It is a cardinal rule in our circuit that one panel is bound by
the decision of a prior panel” (quoting Owsley v. Luebbers, 281 F.3d 687, 690 (8th
Cir. 2002)). Thus, the district court was correct to conclude Tipler’s prior conviction
was a crime of violence.
We accordingly affirm the district court’s judgment.
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