United States v. Iyaun Bell, 2016 U.S. App. LEXIS 19442

Background

Police stopped a vehicle and recovered a firearm; Iyaun Bell (a felon) pleaded guilty to possession under 18 U.S.C. § 922(g)(1).
A PSR treated a prior Missouri second-degree robbery conviction as a "crime of violence," raising Bell’s Guidelines base-offense level to 20 under U.S.S.G. § 2K2.1(a)(4)(A).
Bell objected to treating the prior robbery as a crime of violence; the district court overruled the objection and sentenced Bell to 37 months.
On appeal, the panel reviewed whether Missouri second-degree robbery necessarily involves the use of violent "physical force" required by U.S.S.G. § 4B1.2(a)'s elements clause.
The panel held Missouri’s statute can criminalize conduct (e.g., slight bumps, nudges, or brief struggles) that may fall short of Johnson’s definition of "physical force" (force capable of causing physical pain or injury), so the statute is indivisible but does not necessarily require violent force.
The court further held the Guidelines commentary listing "robbery" cannot, standing alone post-Johnson, expand § 4B1.2(a) beyond the offenses expressly enumerated in the Guideline text; therefore the prior conviction did not qualify and the case was reversed and remanded for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Missouri second-degree robbery is a "crime of violence" under U.S.S.G. § 4B1.2(a)(1) (elements clause)	Bell: Missouri robbery does not necessarily require violent force as defined in Johnson, so it cannot qualify	Government: The statute's element of "use or threat of physical force" matches the Guidelines' force clause so it qualifies	Held: Missouri statute does not necessarily require violent force; conviction does not qualify under the elements clause
Whether the Guidelines commentary listing "robbery" independently classifies robbery as a "crime of violence" post-Johnson	Bell: Commentary cannot be used to expand the Guideline beyond its text	Government: Commentary's inclusion of "robbery" should count to qualify the prior conviction	Held: Commentary alone cannot expand § 4B1.2(a) after the residual clause was invalidated; commentary disregarded for that purpose
Whether the modified categorical approach applies (i.e., statute divisibility)	Bell: Missouri robbery is indivisible; assess generic elements	Government: (Implicit) statute supplies the requisite element	Held: Missouri statute is indivisible; court applies categorical inquiry to the statute's least conduct
Whether precedent or state-court interpretations require a different result	Bell: Missouri case law shows realistic probability of application to non-violent contact; post-Johnson precedents undermine earlier federal panel decisions	Government/Dissent: Earlier Missouri law and precedent require force capable of overcoming resistance and thus meet Johnson	Held: Court follows Missouri decisions (including Lewis) showing convictions can rest on less-than-violent contact and declines to treat pre-Johnson federal panel cases as controlling

Key Cases Cited

Harrison v. United States, 809 F.3d 420 (8th Cir. 2015) (standard of de novo review for Guidelines crime-of-violence determinations)
Gordon v. United States, 557 F.3d 623 (8th Cir. 2009) (categorical vs. modified categorical approach discussion)
Ossana v. United States, 638 F.3d 895 (8th Cir. 2011) (categorical approach explanation)
Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force capable of causing pain or injury)
Soto-Rivera v. United States, 811 F.3d 53 (1st Cir. 2016) (commentary cannot expand § 4B1.2 after residual clause invalidation)
Rollins v. United States, 836 F.3d 737 (7th Cir. 2016) (agreeing with Soto-Rivera on commentary limits)
Stinson v. United States, 508 U.S. 36 (1993) (commentary authoritative unless inconsistent with guideline text)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (presume conviction rests on least of acts criminalized; realistic probability test)