United States v. Hosea Swopes

United States Court of Appeals
For the Eighth Circuit
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No. 16-1797
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Hosea Latron Swopes,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 23, 2016
Filed: March 10, 2017
[Published]
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Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
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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 court
concluded that Swopes was subject to an enhanced sentence under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The ACCA requires a minimum 15-
year prison sentence for a felon in possession of a firearm who has sustained three
prior 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.
Swopes argued in his opening brief that unlawful use of a weapon, in violation
of Mo. Rev. Stat. § 571.030.1(4), is not a violent felony. The government countered
that United States v. Pulliam, 566 F.3d 784 (8th Cir. 2009), held that a violation of
the statute qualifies categorically. After the case was submitted, Swopes moved for
leave to file a supplemental brief to argue, based on intervening circuit precedent, that
second-degree robbery is not a violent felony. The government did not oppose leave.
Swopes points out that in United States v. Bell, 840 F.3d 963, 965-67 (8th Cir.
2016), a divided panel held that second-degree robbery in Missouri is not a “crime
of violence” under the sentencing guidelines. As relevant here, “crime of violence”
under the guidelines means an offense that has as an element “the use, attempted use,
or threatened use of physical force against the person of another.” USSG
§ 4B1.2(a)(1). In Johnson v. United States, 559 U.S. 133 (2010), the Court held that
the term “physical force” in a statute defining the term “violent felony” required the
use of “violent force”—i.e., force that is capable of causing physical pain or injury
to another person. Id. at 140. This court in Bell reasoned that there is a reasonable
probability that one could be convicted under the Missouri second-degree robbery
statute without using, attempting to use, or threatening to use violent force, so
second-degree robbery was not a “crime of violence.” 840 F.3d at 966-67. Swopes
argues that the reasoning of Bell requires a ruling that second-degree robbery likewise
is not a “violent felony” under the ACCA.
We review Swopes’s new contention for plain error only, but we must consider
the law in effect at the time of our decision. If the error is plain at the time of
appellate review, then it is plain for purposes of Federal Rule of Criminal Procedure
52(b). Henderson v. United States, 133 S. Ct. 1121, 1127 (2013). Bell involved the
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sentencing guidelines rather than the ACCA, but the operative text is the same: the
statute, as relevant here, defines “violent felony” as an offense that 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). The government argues that Bell was wrongly
decided, but it does not suggest any reason why the enhancement in this case is not
plainly erroneous under the reasoning of Bell. Cf. United States v. Ross, 613 F.3d
805, 809 (8th Cir. 2010). Nor does the government dispute that Swopes meets the
remaining requirements for plain-error relief, including that the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings. See United States
v. Olano, 507 U.S. 725, 732 (1993); United States v. Pirani, 406 F.3d 543, 553-54
(8th Cir. 2005) (en banc).
Accordingly, based on the intervening circuit precedent of Bell, we conclude
that Swopes is entitled to relief. The reasoning of Bell dictates a conclusion that
second-degree robbery in Missouri is not a violent felony under the ACCA, and
Swopes therefore does not qualify as an armed career criminal. The judgment of the
district court is vacated, and the case is remanded for resentencing.
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