United States v. Hosea Swopes
886 F.3d 668
| 8th Cir. | 2018Background
- Hosea Swopes pleaded guilty to being a felon in possession of a firearm, and the district court applied the Armed Career Criminal Act (ACCA) enhancement based on three prior Missouri convictions: unlawful use of a weapon, second-degree robbery (1994), and first-degree robbery.
- Swopes challenged classification of prior convictions as "violent felonies" under 18 U.S.C. § 924(e); he specifically argued second-degree robbery (Mo. Rev. Stat. § 569.030.1 (1979)) did not meet the ACCA force element.
- A three-judge panel vacated the sentence relying on United States v. Bell, which held Missouri second-degree robbery was not necessarily a Crime of Violence under the Guidelines.
- The government sought rehearing en banc; the full court granted rehearing, vacated the panel decision, and considered whether the Missouri statute satisfies the ACCA categorical test.
- The en banc court held Missouri second-degree robbery (as construed in 1994) does require the use, attempted use, or threatened use of physical force capable of causing pain or injury, so it qualifies as an ACCA "violent felony."
- The court declined to decide, en banc, whether the separate unlawful-use-of-a-weapon conviction qualifies and remanded that issue to the panel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Missouri second-degree robbery (1979 statute) is a "violent felony" under ACCA (force clause) | Swopes: Bell controlling; Missouri law allows convictions for low-contact or non-painful force (e.g., mere contact/snatching), so statute may encompass non-violent force | Government: Missouri statute and precedent require force capable of causing pain/injury; categorical approach shows statute meets ACCA force element | The court held the statute requires use/threat of physical force capable of causing pain or injury and thus is a "violent felony" under ACCA |
| Whether unlawful use of a weapon (Mo. Rev. Stat. § 571.030.1(4)) is a "violent felony" | Swopes: This prior conviction may not meet ACCA's force requirement and should be addressed | Government: District court counted it as a violent felony (argument not resolved en banc) | Court declined to resolve en banc; remanded to panel for initial consideration |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means force capable of causing physical pain or injury)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (categorical approach governs ACCA analysis)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (state statute is overbroad only if a "realistic probability" it reaches non-qualifying conduct)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (same "realistic probability" standard)
- United States v. Bell, 840 F.3d 963 (8th Cir. 2016) (prior panel held Missouri second-degree robbery was not necessarily a crime of violence)
- State v. Lewis, 466 S.W.3d 629 (Mo. Ct. App. 2015) (Missouri case describing convictions based on a bump/brief struggle; central to Bell's reasoning)
- State v. Childs, 257 S.W.3d 655 (Mo. Ct. App. 2008) (upholding conviction where tussle/struggle occurred; court distinguishes tussling from mere snatching)