United States v. Melvin Pryor ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2627
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Melvin Pryor
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: May 13, 2019
Filed: June 26, 2019
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Before COLLOTON, BEAM, and SHEPHERD, Circuit Judges.
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BEAM, Circuit Judge.
In October 2014, Melvin Pryor pleaded guilty to a single-count indictment of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In the
presentence investigation report, the probation officer concluded that Pryor was an
Armed Career Criminal (ACC) based on the existence of at least three prior
convictions for a violent felony or serious drug offense, or both, and thus suggested
that the district court1 enhance Pryor's Guidelines sentence accordingly. Pryor argued
that although our circuit law dictates otherwise, certain of his prior convictions should
not qualify as "violent felonies" under the Armed Career Criminal Act (ACCA), and
the legal matter should be revisited by the en banc court. The district court, applying
circuit precedent, sentenced Pryor as an ACC (18 U.S.C. § 924(e)(1)) to the statutory
minimum term of 180 months imprisonment, followed by three years of supervised
release.
When a defendant has three prior convictions "for a violent felony or a serious
drug offense," 18 U.S.C. § 924(e)(1) imposes a mandatory minimum sentence of
fifteen years. Relevant here, a violent felony is a crime punishable by imprisonment
for at least one year and "has as an element the use, attempted use, or threatened use
of physical force against the person of another." Id. § 924(e)(2)(B)(i). When
determining whether a crime qualifies as a violent felony, we are generally limited to
examining only the statutory definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by the trial judge to which
the defendant assented, rather than the underlying facts of the crime committed.
Shepard v. United States, 544 U.S. 13, 26 (2005); United States v. Pulliam, 566 F.3d
784, 788 (8th Cir. 2009). "This court reviews de novo whether a prior conviction is
a crime of violence." United States v. Minnis, 872 F.3d 889, 891 (8th Cir. 2017), cert.
denied, 138 S. Ct. 1581 (2018).
On appeal Pryor challenges the application of the ACCA at his sentencing,
particularly challenging the inclusion of two of his Missouri convictions as violent
felonies for purposes of the enhancement–his Missouri conviction for the offense of
1
The Honorable Rodney W. Sippel, Chief Judge, United States District Court
for the Eastern District of Missouri.
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unlawful use of a weapon, Mo. Rev. Stat. § 571.030.1(4);2 and his Missouri conviction
for first-degree assault, Mo. Rev. Stat. § 565.050.1.3 This panel's response to each of
Pryor's arguments is dictated by circuit precedent but Pryor advances his claims in
hopes of en banc review of these settled analyses.
As to the unlawful use of a weapon offense, this court has plainly 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." Pulliam, 566 F.3d at 788
(quotation omitted). "It goes without saying that displaying an operational weapon
before another in an angry or threatening manner qualifies as threatened use of
physical force against another person." Id. Pryor argues that although Pulliam is
binding precedent, and has been reaffirmed recently in United States v. Hudson, 851
F.3d 807, 809-10 (8th Cir. 2017), and United States v. Swopes, 892 F.3d 961, 962 (8th
Cir. 2018), cert. denied, 139 S. Ct. 1546 (2019), en banc review is necessary because
this court has not adequately considered Missouri's own interpretation of this statute.
2
Under Missouri law a person commits the crime of unlawful use of a weapon
if he knowingly "[e]xhibits, in the presence of one or more persons, any weapon
readily capable of lethal use in an angry or threatening manner." Mo. Rev. Stat. §
571.030.1(4).
3
Under Missouri law relevant at the time of Pryor's offense:
1. A person commits the crime of assault in the first degree if he
attempts to kill or knowingly causes or attempts to cause serious physical
injury to another person.
2. Assault in the first degree is a class B felony unless in the course
thereof the actor inflicts serious physical injury on the victim in which
case it is a class A felony.
Mo. Rev. Stat. § 565.050 (2000).
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Essentially he claims that as interpreted by the state courts, the Missouri statute falls
short of the requirement that 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).
However, even with the factual scenarios he posits (including, for example, the mental
state required, and to whom or at what the exhibiting must be directed), Pryor has not
identified any pertinent developments in Missouri law after 2009 that undermine this
court's conclusion in Pulliam. Although Pryor believes our court's cases on the matter
were wrongly decided, we are bound by them absent en banc review. United States
v. Eason, 829 F.3d 633, 641 (8th Cir. 2016) ("It is a cardinal rule in our circuit that
one panel is bound by the decision of a prior panel." (quoting United States v.
Anderson, 771 F.3d 1064, 1066-67 (8th Cir. 2014))).
Pryor additionally argues that his Missouri conviction for first-degree assault
does not qualify as a predicate offense under the ACCA. Again, while acknowledging
contrary, binding circuit precedent in United States v. Winston, 845 F.3d 876, 878
(8th Cir. 2017), Pryor claims that because the Missouri statute can be satisfied by
mere causation of serious injury, which may be accomplished by use of non-violent
force such as poisoning, it does not necessarily require the use of "violent" force
against another person as contemplated by the ACCA (i.e., that the Missouri statute
criminalizes conduct that is broader than the necessary violent force contemplated by
the ACCA). He argues this particular matter was not adequately addressed in Winston
and remains ripe for review en banc. However, this court recently reviewed the matter
in Minnis. In Minnis, we affirmed the analysis in Winston, which likewise cited
guidance from United States v. Castleman, 134 S. Ct. 1405, 1414-15 (2014), and held
that "[p]hysical force . . . need not be applied directly to the body of the victim.
Hypothetical scenarios involving no physical contact by the perpetrator (luring a
victim to drink poison or infecting a victim with a disease) do not avoid coverage
under § 924(e)(2)(B)(i)." Minnis, 872 F.3d at 892 (quoting Winston, 845 F.3d at 878)
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(second alteration in original). Absent en banc review, this court is bound by Winston
and Minnis. Eason, 829 F.3d at 641.
The judgment of the district court is affirmed.
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