929 F.3d 940
8th Cir.2019Background
- In 2017 Tracy Parker pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
- At sentencing the district court treated two prior Missouri convictions as "crimes of violence" under U.S.S.G. § 4B1.2(a): a 2006 second-degree robbery and a 2010 attempted second-degree assault.
- Based in part on those determinations, the court set Parker’s offense level at 25 and criminal-history category IV, and imposed an 84-month within-Guidelines sentence.
- Parker appealed, challenging the classification of the two Missouri convictions as "crimes of violence."
- The Eighth Circuit panel affirmed: it held Missouri second-degree robbery is a crime of violence under the Guidelines and declined to revisit precedent holding attempted second-degree assault is a crime of violence.
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) | Parker argued it is not a crime of violence | Government (and district court) relied on precedent treating Missouri robbery as involving threatened or forcible use of physical force | Affirmed: Missouri second-degree robbery is a crime of violence (court relied on Swopes and Shine) |
| Whether attempted second-degree assault (Mo. Rev. Stat. § 565.060.1(2) (2010)) is a "crime of violence" under the Guidelines | Parker contended it should not be considered a crime of violence (preserved for further review) | Government relied on controlling Eighth Circuit precedent holding it is a crime of violence | Affirmed by binding precedent: under Welch and circuit rule, attempted second-degree assault is a crime of violence |
Key Cases Cited
- United States v. Swopes, 886 F.3d 668 (8th Cir. 2018) (en banc) (Missouri robbery requires use or threatened use of violent force)
- United States v. Mata, 869 F.3d 640 (8th Cir. 2017) (Guidelines "crime of violence" and ACCA "violent felony" construed interchangeably)
- United States v. Shine, 910 F.3d 1061 (8th Cir. 2018) (Missouri first-degree robbery is a crime of violence under the Guidelines)
- United States v. Welch, 879 F.3d 324 (8th Cir. 2018) (per curiam) (attempted second-degree assault is a crime of violence)
- Mader v. United States, 654 F.3d 794 (8th Cir. 2011) (en banc) (one panel of the circuit is bound by prior panel decisions)