UNITED STATES of America, Plaintiff-Appellee, v. Warnell REID, Defendant-Appellant.
No. 12-3896.
United States Court of Appeals, Eighth Circuit.
October 20, 2014.
Rehearing and Rehearing En Banc Denied Dec. 12, 2014.
A VE must offer an explanation for any inconsistencies between her testimony and the DOT, which the ALJ may accept as reasonable after evaluation. See Welsh v. Colvin, 765 F.3d 926, 930 (8th Cir.2014) (concluding that the ALJ had complied with SSR 00-4p because, in response to extensive questioning by the ALJ regarding inconsistencies, the VE offered evidence of her personal observations of the requirements of the proposed jobs and cited to a professional journal to support her recommendation). Absent adequate rebuttal, however, VE testimony that conflicts with the DOT “does not constitute substantial evidence upon which the Commissioner may rely to meet the burden of proving the existence of other jobs in the economy a claimant can perform.” Kemp, 743 F.3d at 632. We conclude that the modifier “clearing tables,” without more, was not sufficient to satisfy the question of whether or not the job of a cafeteria attendant requires more than occasional overhead reaching and that the ALJ improperly relied on the testimony of the VE without resolving this apparent conflict. Accordingly, the Commissioner failed to meet her burden of proving that Moore was not disabled in step five of the sequential evaluation process.
III. Conclusion
We vacate the district court‘s judgment and remand with instructions to return the case to the Commissioner for proceedings consistent with this opinion.
Matthew Schelp, argued, Saint Louis, MO, for Defendant-Appellant.
Michael A. Reilly, AUSA, argued, Saint Louis, MO, for Plaintiff-Appellee.
Allison Hart Behrens, AUSA, Saint Louis, MO, on the brief, for Plaintiff-Appellee.
Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
Warnell Reid was convicted of unlawful possession of a firearm as a previously convicted felon, in violation of
Reid appeals the denial of his motion to suppress evidence seized during a search of his residence and the application of the
I.
In 2011, Reid was living with his girlfriend, Earnestine Graham. Graham was serving a term of federal supervised release, and she had violated the conditions of her release. Several law enforcement officers, including deputy United States marshals and St. Louis police detectives, went to Graham‘s home around 6:30 a.m. on October 10, 2011, to execute an arrest warrant for Graham. The front door was cracked open, and a deputy pushed it open. He saw Graham about eight to ten feet from the doorway. She was dressed in her pajamas. The deputy asked Graham to approach the doorway and told her to turn around. He then handcuffed Graham and pulled her outside the door.
After arresting Graham, the officers asked her if anyone else was inside the home, and she told them only her minor children were inside. Officers then conducted what they described as a “security sweep” of the entire residence. When the sweep was completed, officers allowed Graham to reenter the home to dress. While accompanying Graham to her bedroom, an officer discovered in plain view an SKS assault rifle.
Graham told the officers the firearm belonged to her boyfriend, Reid, and that there were no other firearms in the home. Reid arrived shortly thereafter and parked his vehicle near the residence. After identifying Reid as Graham‘s boyfriend, officers detained Reid outside the residence.
After advising Graham of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the officers asked Graham if she would consent to a search of the home. She agreed and signed a consent form. During a search of the home, officers discovered a shotgun on a windowsill in Graham‘s bedroom, a disassembled pistol, and ammunition.
A grand jury charged Reid with unlawful possession of a firearm as a previously convicted felon. He moved to suppress evidence found in the home, and the district court denied the motion. Reid proceeded to trial, and a jury found him guilty. At sentencing, the district court determined that Reid had sustained three prior convictions for violent felonies, and sentenced him to a term of 188 months’ imprisonment.
II.
Reid argues that the district court erred by not suppressing the evidence seized from the residence. He contends that the officers impermissibly entered the house when they found the SKS assault rifle in Graham‘s bedroom, and that the discovery of other evidence was a direct result of finding the first firearm.
The officers did not have a search warrant for the house, so the question is whether they had a basis to enter without a warrant. The arrest of a person outside a home does not by itself justify a warrantless search of the residence. United States v. DeBuse, 289 F.3d 1072, 1074 (8th Cir.2002). Here, however, Graham was clad only in pajamas, and the district court found that “the deputies allowed Graham to reenter 712 Thrush to change her clothes.” When an arrestee chooses to reenter her home for her own convenience, it is reasonable for officers to accompany her and to monitor her movements. Illinois v. McArthur, 531 U.S. 326, 335, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001); Washington v. Chrisman, 455 U.S. 1, 6-7, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982); DeBuse, 289 F.3d at 1074-75. Officers permissibly accompanied Graham to her bedroom where she changed from pajamas into clothes, and a deputy observed the assault rifle in plain view in the bedroom. The seizure of the firearm was thus permissible under the Fourth Amendment.
Reid argues that accompaniment of Graham did not justify the warrantless entry because Graham did not request to reenter her home. It is true that there is no testimony directly quoting Graham as making such a request. But the district court found that the deputies “allowed” Graham to reenter, and this finding is best understood in ordinary usage as a grant of permission. A grant of permission implies a request. The district court likely would have used different language if the court had found that the officers ordered Graham back into the house.
The record supports the inference that Graham wanted to get dressed and that the officers permitted her to reenter the home for that purpose. The lead deputy marshal testified that after arresting Graham, he was going “to allow her to get clothes,” and that she was “allowed” to go into her bedroom and change clothes. He explained that this was one of the “courtesies” that he extended to Graham. Hr‘g Tr. 7-8, 19. We therefore conclude that our decision in DeBuse is controlling and deem it unnecessary to explore when police may bring an arrestee into a home to change clothes or to dress without a request by the arrestee. Cf. United States v. Gwinn, 219 F.3d 326, 333 (4th Cir.2000); United States v. Butler, 980 F.2d 619, 621 (10th Cir.1992); United States v. Di Stefano, 555 F.2d 1094, 1101 (2d Cir.1977).
Once the officers located the assault rifle in plain view, they secured consent from Graham to search the house. Graham‘s consent was sufficient to justify a warrantless search, and the rest of the evidence seized pursuant to the consent search was properly admitted against Reid. See Fernandez v. California, — U.S. —, 134 S.Ct. 1126, 1133-34, 188 L.Ed.2d 25 (2014). Because we conclude that the officers permissibly found and seized the disputed evidence while accompanying Graham to change her clothes or pursuant to Graham‘s later consent, we need not address whether the presence of minor children justified the “protective sweep” that officers conducted without a warrant or consent.
III.
Reid also challenges the sentence imposed based on the Armed Career Criminal Act. Under the Act, a defendant convicted of unlawful possession of a firearm or ammunition under
In James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), the Supreme Court addressed whether a conviction for attempted burglary qualified as a “violent felony” under
Considering the Florida statute on attempted burglary, James asked “whether the risk posed by attempted burglary is comparable to that posed by its closest analog among the enumerated offenses—here, completed burglary.” 550 U.S. at 203, 127 S.Ct. 1586. Florida law, as interpreted by the State‘s highest court, “require[d] an overt act directed toward the entry of a structure,” id. at 206, 127 S.Ct. 1586, and James held that attempted burglary in Florida was sufficiently similar to burglary to qualify as a violent felony. The Court found it unnecessary to address whether “more attenuated conduct“—such as the “casing” of a building or neighborhood—would suffice, but suggested that a statute requiring only “preparatory conduct” might well not qualify. Id. at 205 n. 4 & 206, 127 S.Ct. 1586.
McKinney did not have the benefit of the analytical framework established in James, and it is appropriate to consider anew in light of the Supreme Court‘s guidance whether attempted burglary in Missouri is a violent felony. See Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 838 (8th Cir.1997). McKinney focused on the fact that attempted burglary in Missouri requires a “substantial step” toward burglary, 328 F.3d at 995, but did not consider the range of conduct covered by the Missouri statute.
The Missouri statute, it turns out, is not like the Florida statute at issue in James. A person commits attempted burglary in Missouri if he “does any act which is a substantial step towards the commission of the offense.”
The government has furnished no empirical data about “ordinary” convictions in Missouri for attempted burglary, cf. Chambers v. United States, 555 U.S. 122, 129, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), and reported appeals are unlikely to encompass the ninety-four percent of state convictions that are the result of guilty pleas, see Missouri v. Frye, — U.S. —, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012), so our decision rests on the statute and commentary. In determining what is the “ordinary case” for purposes of
Attempted burglary in Missouri, therefore, is comparable to the attempt laws from Utah, Oklahoma, Texas, and Washington that James said “could be satisfied by preparatory conduct that does not pose the same risk of violent confrontation and physical harm posed by an attempt to enter a structure illegally.” Id. at 205 & n. 4, 127 S.Ct. 1586. Sister circuits have held that violations of these state statutes do not qualify as predicate felonies under
The Missouri statute under which Reid was convicted prohibits preparatory conduct that presents a lesser risk of violent confrontation than does an act directed toward entry of a structure. Consistent with other circuits that have considered similar statutes, we cannot conclude that the conduct encompassed by the elements of the Missouri offense of attempted burglary, in the ordinary case, presents a serious potential risk of injury to another. Therefore, Reid‘s conviction for attempted second degree burglary in Missouri does not constitute a “violent felony” under
*
*
*
For these reasons, the judgment of conviction is affirmed, but the sentence is vacated, and the case is remanded for resentencing consistent with this opinion. Our decision concerning