936 F.3d 821
8th Cir.2019Background
- In January 2017 Anthony Dunlap robbed a Bank of America branch in Springfield, MO, and was arrested the same day with cash and a loaded pistol; he pleaded guilty to bank robbery and being a felon in possession of a firearm.
- At the time of his plea (Nov. 2017) prevailing Eighth Circuit panel precedent (United States v. Bell) indicated Missouri second-degree robbery was not a "crime of violence" and thus not a violent felony under the ACCA, so Dunlap’s guidelines exposure was modest.
- The court granted en banc rehearing in Swopes to reconsider whether Missouri second-degree robbery qualifies as a violent felony under the ACCA. The en banc court overruled Bell on March 29, 2018, holding the offense is a violent felony.
- After Swopes, the district court treated Dunlap as an armed career criminal (three prior violent felonies) and imposed an ACCA-enhanced sentence of 216 months.
- Dunlap appealed, arguing the retroactive application of Swopes to increase his punishment violated due process by imposing an unforeseeable judicial expansion of the ACCA after his offense.
- The Eighth Circuit affirmed, holding Swopes was not an "unexpected and indefensible" change in the law such that due process barred its retroactive application to sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether retroactive application of an en banc decision increasing punishment violates due process | Dunlap: Swopes was an unforeseeable judicial change that retroactively increased his punishment after the offense, violating Fifth Amendment due process | Government: Circuit law was unsettled; en banc reversal of Bell was a predictable resolution of federal-law uncertainty and did not violate due process | Court: Denied — Swopes was not "unexpected and indefensible"; no due process bar to its retroactive application |
| Whether Bell established settled law that foreclosed later change | Dunlap: Absence of en banc review meant Bell settled the issue, giving him fair notice | Government: A panel decision is not final; discretionary en banc/Supreme review means the law can evolve and uncertainty remained | Court: Bell did not create a definitive expectation; law was unsettled and subject to change |
| Whether Due Process offers the same protection as Ex Post Facto in judicial decisions | Dunlap: (implicit) Due process should block unforeseeable retroactive increases in punishment | Government: Points to Rogers and circuit authority recognizing limits and standards | Court: Assumed (without deciding) some due process limits may apply but found they were not triggered here |
| Whether a scenario of entrenched precedent could support a due process claim | Dunlap: Not argued based on entrenched precedent | Government: No such entrenched precedent here | Court: Not reached; left open possibility but found facts here do not meet that scenario |
Key Cases Cited
- United States v. Swopes, 886 F.3d 668 (8th Cir. 2018) (en banc) (held Missouri second-degree robbery is a violent felony under the ACCA)
- United States v. Bell, 840 F.3d 963 (8th Cir. 2016) (panel decision holding Missouri second-degree robbery not a "crime of violence" for guidelines)
- Rogers v. Tennessee, 532 U.S. 451 (2001) (due process bars unforeseeable, retroactive judicial expansions of criminal law)
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" in ACCA means violent force)
- Stokeling v. United States, 139 S. Ct. 544 (2019) (Supreme Court consideration of state robbery statutes' fit with federal force clauses)