United States v. Hosea Swopes, 850 F.3d 979

850 F.3d 979

8th Cir.

2017

UNITED STATES of America, Plaintiff-Appellee v. Hosea Latron SWOPES, Defendant-Appellant.

No. 16-1797

United States Court of Appeals, Eighth Circuit.

March 10, 2017

979

Submitted: September 23, 2016

Id. at 535, 131 S.Ct. 2685 (Sotomayor, concurring). Justice Sotomayor‘s concurring opinion controls in construing Freeman. See United States v. Browne, 698 F.3d 1042, 1045 (8th Cir. 2012), cert. denied, — U.S. —, 133 S.Ct. 1616, 185 L.Ed.2d 602 (2013). But all nine Justices construed the term “based on” as imposing a substantive limitation on § 3582(c)(2) relief, a limitation inconsistent with the examples discussed by the Commission in Amendment 780, and with the result reached by the Fourth Circuit majority in Williams.

Congress has declared that the Commission‘s guidelines and policy statements shall “establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code.” 28 U.S.C. § 994(b)(1). But the Commission‘s interpretation of § 3582(c)(2) ignores the statute‘s plain text as construed in Freeman—defendants’ sentences were “based on” the mandatory minimum and their substantial assistance, not on “a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Once the Supreme Court determines the meaning of a statute, courts “assess an agency‘s later interpretation of the statute against that settled law.” Neal v. United States, 516 U.S. 284, 295, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996). “[T]he Commission does not have the authority to amend [a] statute” the Supreme Court has construed. Id. at 290, 116 S.Ct. 763; see United States v. Stoneking, 60 F.3d 399, 402 (8th Cir. 1995) (en banc). “If the Commission‘s revised commentary is at odds with [§ 3582(c)(2)‘s] plain language, it must give way.” United States v. LaBonte, 520 U.S. 751, 757, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997). Nor can “the Sentencing Commission ... overrule circuit precedent interpreting a statutory provision.” Williams, 808 F.3d at 266 (Traxler, C.J., dissenting).²

For these reasons, we conclude that the defendants are ineligible for § 3582(c)(2) sentencing reductions because their initial sentences were not “based on” a guidelines range lowered by Amendment 782. Accord United States v. C.D., No. 15-3318, 2017 WL 694483, 848 F.3d 1286 (10th Cir. Feb. 22, 2017). Accordingly, the district court orders denying § 3582(c)(2) reductions are affirmed.

Counsel who presented argument on behalf of the appellant was Scott Tilsen, AFPD, of Cape Girardeau, MO. The following attorney also appeared on the appellant brief; Nanci McCarthy, AFPD, of Saint Louis, MO.

Counsel who filed a brief and presented argument on behalf of the appellee was Allison Hart Behrens, AUSA, of Saint Louis, MO.

Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

PER CURIAM.

Hosea Swopes pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court concluded that Swopes was subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA“), 18 U.S.C. § 924(e). The ACCA requires a minimum 15-year prison sentence for a felon in possession of a firearm who has sustained three prior convictions for a violent felony or a serious drug offense. The district court cited Swopes‘s prior Missouri convictions for unlawful use of a weapon, second-degree robbery, and first-degree robbery as three violent felonies.

Swopes argued in his opening brief that unlawful use of a weapon, in violation of Mo. Rev. Stat. § 571.030.1(4), is not a violent felony. The government countered that United States v. Pulliam, 566 F.3d 784 (8th Cir. 2009), held that a violation of the statute qualifies categorically. After the case was submitted, Swopes moved for leave to file a supplemental brief to argue, based on intervening circuit precedent, that second-degree robbery is not a violent felony. The government did not oppose leave.

Swopes points out that in United States v. Bell, 840 F.3d 963, 965-67 (8th Cir. 2016), a divided panel held that second-degree robbery in Missouri is not a “crime of violence” under the sentencing guidelines. As relevant here, “crime of violence” under the guidelines means an offense that has as an element “the use, attempted use, or threatened use of physical force against the person of another.” USSG § 4B1.2(a)(1). In Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), the Court held that the term “physical force” in a statute defining the term “violent felony” required the use of “violent force“—i.e., force that is capable of causing physical pain or injury to another person. Id. at 140, 130 S.Ct. 1265. This court in Bell reasoned that there is a reasonable probability that one could be convicted under the Missouri second-degree robbery statute without using, attempting to use, or threatening to use violent force, so second-degree robbery was not a “crime of violence.” 840 F.3d at 966-67. Swopes argues that the reasoning of Bell requires a ruling that second-degree robbery likewise is not a “violent felony” under the ACCA.

We review Swopes‘s new contention for plain error only, but we must consider the law in effect at the time of our decision. If the error is plain at the time of appellate review, then it is plain for purposes of Federal Rule of Criminal Procedure 52(b). Henderson v. United States, — U.S. —, 133 S.Ct. 1121, 1127, 185 L.Ed.2d 85 (2013). Bell involved the sentencing guidelines rather than the ACCA, but the operative text is the same: the statute, as relevant here, defines “violent felony” as an offense that has as an element “the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The government argues that Bell was wrongly decided, but it does not suggest any reason why the enhancement in this case is not plainly erroneous under the reasoning of Bell. Cf. United States v. Ross, 613 F.3d 805, 809 (8th Cir. 2010). Nor does the government dispute that Swopes meets the remaining requirements for plain-error relief, including that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Pirani, 406 F.3d 543, 553-54 (8th Cir. 2005) (en banc).

Accordingly, based on the intervening circuit precedent of Bell, we conclude that Swopes is entitled to relief. The reasoning of Bell dictates a conclusion that second-degree robbery in Missouri is not a violent felony under the ACCA, and Swopes therefore does not qualify as an armed career criminal. The judgment of the district court is vacated, and the case is remanded for resentencing.

Notes

The original Commentary to § 5G1.1 stated, more plainly than the amended version, “[i]f the statute requires imposition of a sentence other than that required by the guidelines, the statute shall control.” U.S.S.G. App. C, Vol. 1, Amend. 286.

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