United States v. Hosea Swopes
2017 U.S. App. LEXIS 4259
| 8th Cir. | 2017Background
- Defendant Hosea Swopes pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- District court applied the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), finding three prior Missouri convictions qualified as violent felonies: unlawful use of a weapon, second-degree robbery, and first-degree robbery.
- ACCA enhancement imposes a mandatory minimum 15-year sentence when a defendant has three prior convictions for a "violent felony" or serious drug offense.
- Swopes initially challenged whether unlawful use of a weapon is a violent felony; later sought to argue (via supplemental brief) that Missouri second-degree robbery is not a violent felony based on intervening circuit precedent.
- The Eighth Circuit considered United States v. Bell (holding Missouri second-degree robbery is not a "crime of violence" under the Guidelines) and Johnson v. United States (defining "physical force" as "violent force") in assessing whether the ACCA enhancement was plain error.
- Court concluded Bell's reasoning applies to the ACCA definition, vacated the district court's ACCA enhancement, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Missouri second-degree robbery is a "violent felony" under the ACCA (§ 924(e)(2)(B)(i)) | Swopes: Bell shows a reasonable probability one can be convicted under the statute without violent force, so it is not a violent felony | Government: Pulliam treated an analogous Missouri statute as a categorical match; the enhancement was proper | Held: Applying Bell and Johnson, second-degree robbery in Missouri is not a violent felony under the ACCA; enhancement vacated |
| Whether the court should apply intervening circuit precedent in plain-error review | Swopes: New contention should be considered; plain error may be found based on current law | Government: Argued Pulliam controls but did not dispute plain-error criteria | Held: Court applied Bell on plain-error review and found error plain at appellate review time |
Key Cases Cited
- United States v. Pulliam, 566 F.3d 784 (8th Cir. 2009) (addressing categorical qualification of a Missouri weapons offense)
- United States v. Bell, 840 F.3d 963 (8th Cir. 2016) (held Missouri second-degree robbery is not a "crime of violence" under the Guidelines)
- Johnson v. United States, 559 U.S. 133 (2010) (held "physical force" means "violent force" capable of causing pain or injury)
- United States v. Olano, 507 U.S. 725 (1993) (standards for plain-error review)