United States v. Ismael Miranda-Zarco, 836 F.3d 899

Background

Miranda-Zarco pled guilty to two federal conspiracies: methamphetamine distribution and money laundering; he was sentenced in district court and appealed only the criminal-history calculation.
In 2001 he had state convictions for first-degree robbery (10 years) and armed criminal action (ACA, 3 years concurrent) in Missouri arising from the same core act (robbery at Pizza-Hut-DeSoto where a weapon was displayed).
The district court assessed three criminal-history points for the robbery (U.S.S.G. § 4A1.1(a)) and, under U.S.S.G. § 4A1.1(e), added one additional point for the ACA as a separate prior sentence for a crime of violence.
Miranda-Zarco argued the ACA point was improper because it arose from the same conduct and/or because ACA is not a "crime of violence." The district court rejected the multiplicity/same-conduct argument based on Missouri law treating ACA and robbery as distinct offenses.
The Eighth Circuit allowed Miranda-Zarco to pursue, via a pro se supplemental brief, the contention that ACA is not a "crime of violence," reviewed that contention for plain error, and found the record insufficient to decide whether ACA necessarily has as an element the use, attempted use, or threatened use of physical force.
The court vacated the sentence and remanded for the district court to obtain state records and apply the categorical or modified categorical approach to determine whether ACA qualifies as a crime of violence under the Guidelines.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ACA can be counted separately under U.S.S.G. § 4A1.1(e) when it arose from the same conduct as robbery	Miranda-Zarco: ACA should not be counted separately because it arose from the same act as robbery	Government: Missouri law treats ACA and robbery as separate offenses punishable cumulatively	Court: Rejected Miranda-Zarco; state law distinguishes the offenses, so separate point under § 4A1.1(e) was permissible
Whether ACA is a "crime of violence" under the Guidelines' force clause (U.S.S.G. § 4B1.2(a)(1))	Miranda-Zarco: ACA is not necessarily a crime of violence; issue preserved for review	Government: Using a dangerous instrument or deadly weapon in a felony is clearly a crime of violence	Court: Record and briefing were inadequate to determine categorically whether ACA has as an element the use/threatened use of physical force; remanded for factual/record development
Whether the Guidelines' residual clause invalidity (post-Johnson) affects this case	Miranda-Zarco: Residual clause cannot support labeling ACA a crime of violence	Government: Need not rely on residual clause; force clause suffices	Court: Not resolved—if district court relied on the residual clause, existing Eighth Circuit precedent would bar plain-error relief; court did not decide and remanded for clarification
Standard of appellate review for unraised sentencing argument	Miranda-Zarco: Requests plain-error relief	Government: Opposes relief; urges deference	Court: Applied plain-error review and required showing of error that is plain and affects substantial rights; remand required for proper determination under categorical approaches

Key Cases Cited

State v. Flenoy, 968 S.W.2d 141 (Mo. banc 1998) (Missouri Supreme Court: robbery and armed criminal action are distinct and punishable cumulatively)
United States v. Watson, 650 F.3d 1084 (8th Cir. 2011) (upheld application of § 4A1.1(e) under similar state law)
United States v. Scales, 735 F.3d 1048 (8th Cir. 2013) (court may consider pro se supplemental issues in represented appellant’s filings)
United States v. Benson, 686 F.3d 498 (8th Cir. 2012) (permitted pro se supplemental brief and rejected arguments on merits)
United States v. Blum, 65 F.3d 1436 (8th Cir. 1995) (court may gratuitously examine pro se filings and find no merit)
United States v. Halverson, 973 F.2d 1415 (8th Cir. 1992) (reviewed pro se supplemental arguments and found them meritless)
United States v. Payton, 918 F.2d 54 (8th Cir. 1990) (granted limited leave to file pro se supplemental brief)
United States v. Ault, 598 F.3d 1039 (8th Cir. 2010) (plain-error standard for unpreserved sentencing objections)
Johnson v. United States, 520 U.S. 461 (1997) (describes plain-error framework)
Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause; relevant to Guidelines’ residual clause analysis)
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (discussed prejudice standard for sentencing errors)
Missouri v. Hunter, 459 U.S. 359 (1983) (statutory intent to permit cumulative punishments governs multiple prosecution analysis)