910 F.3d 1061
8th Cir.2018Background
- William Shine, a felon, received a 72-month sentence for being a felon in possession of a firearm.
- The Sentencing Guidelines impose a higher base offense level if the defendant has a prior “crime of violence,” defined in U.S.S.G. § 4B1.2(a)(1) to include offenses with an element requiring use, attempted use, or threatened use of physical force.
- Shine had a prior Missouri conviction for attempted first-degree robbery under Mo. Rev. Stat. § 569.020.1 (1979), which criminalized “forcibly steal[ing] property” and was punishable by more than one year.
- The legal question turned on whether that Missouri conviction qualifies as a “crime of violence” for Guidelines enhancement, applying the categorical approach (elements of the statute).
- The government produced Shine’s charging document; Shine’s challenge to the government’s proof of conviction was waived when his counsel withdrew the objection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shine’s prior Missouri attempted first-degree robbery is a “crime of violence” under U.S.S.G. § 4B1.2(a)(1) | Shine contended the conviction should not qualify as a crime of violence | Government argued the statute requires forcible stealing, which necessarily involves physical force and thus qualifies | Court held it is a crime of violence because the statutory element of “forcibly steal[ing]” requires physical force capable of causing pain or injury |
| Whether attempted (as opposed to completed) robbery qualifies under the Guidelines definition | Shine argued attempt might not count | Government noted the Guidelines include attempted use of force and attempt offenses | Court held attempted offense qualifies because the Guidelines explicitly cover attempts and Missouri’s attempt statute carried >1 year punishment |
| Whether Shine preserved his challenge to the government’s proof of the prior conviction | Shine argued government failed to introduce proof | Government noted defense counsel withdrew the objection after the charging document was produced | Court held the challenge was waived and thus unreviewable |
Key Cases Cited
- United States v. Fields, 863 F.3d 1012 (8th Cir. 2017) (categorical approach—look to statute elements)
- United States v. Swopes, 886 F.3d 668 (8th Cir. en banc 2018) (Missouri robbery statute requires physical force for ACCA ‘‘violent felony’’)
- United States v. Craig, 630 F.3d 717 (8th Cir. 2011) (definitions of "crime of violence" and "violent felony" are nearly identical)
- United States v. Vinton, 631 F.3d 476 (8th Cir. 2011) (comparison of statutory definitions)
- United States v. Rice, 813 F.3d 704 (8th Cir. 2016) (physical-force requirement defined as force capable of causing pain or injury)
- United States v. Minnis, 872 F.3d 889 (8th Cir. 2017) (Missouri attempted-first-degree-assault conviction qualifies as a crime of violence)
- United States v. White, 447 F.3d 1029 (8th Cir. 2006) (waiver doctrine for objections to prior-conviction proof)
- United States v. Jones, 662 F.3d 1018 (8th Cir. 2011) (waived claims are unreviewable on appeal)
Disposition
The court affirmed the district court’s judgment, holding Shine’s prior attempted first-degree robbery conviction qualifies as a "crime of violence" under U.S.S.G. § 4B1.2(a)(1), and that Shine waived his challenge to the sufficiency of the government’s proof of the prior conviction.