United States Court of Appeals

For the Eighth Circuit

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No. 16-4018

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Marvance J. Robinson

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: September 18, 2017

Filed: September 28, 2017

[Unpublished]

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Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Marvance Robinson appeals the district court's 75-month sentence, imposed

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following his conviction for being a felon in possession of a firearm in violation of

The Honorable Dean Whipple, United States District Judge for the Western 1

District of Missouri.
18 U.S.C. §§ 922(g)(1) and 924(a)(2). This is Robinson's second appeal. In United

States v. Robinson (Robinson I), 826 F.3d 1044 (8thCir. 2016), Robinson argued that

the district court erred in finding that his two prior felony convictions–a 2013

Missouri conviction for resisting arrest by fleeing, and a 2008 Kansas conviction for

robbery–were crimes of violence, which increased his sentence pursuant to United

States Sentencing Guidelines §§ 2K2.1(a)(2) and 4B1.2(a). After reviewing the

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record, we could not determine whether the district court had enhanced the sentence

pursuant to the force clause or the residual clause of § 4B1.2(a)(2), and thus

remanded to the district court for clarification. Robinson I, 826 F.3d at 1045-46. We

noted that if the district court used the residual clause to classify the resisting arrest

offense, it would not be plain error because at that time, the constitutionality of the

Guidelines' residual clause was an "open question" in this circuit. Id. at 1045. We

also noted that while the Missouri fleeing arrest would not qualify under the force

clause, the district court "may have to determine whether the other crime that it used

to increase Robinson's sentence, a conviction for robbery, qualifies him for an

enhancement." Id. at 1046.

Upon remand, Robinson argued to the district court that neither the resisting

arrest nor the robbery conviction qualified as crimes of violence. After hearing

arguments, the district court clarified that Robinson's prior offense for Kansas

robbery was a crime of violence under the force clause, and the Missouri resisting

arrest was a crime of violence under the residual clause, and stated "[t]he 75-month

sentence remains the same as I previously sentenced."

U.S.S.G. § 2K2.1(a)(2) provides a base offense level of 24 if the defendant 2

committed the instant offense subsequent to sustaining at least two felony convictions

of a crime of violence. U.S.S.G. § 4B1.2(a) (2014) defines "crime of violence" to

include a felony that has "as an element the use, attempted use, or threatened use of

physical force against the person of another" (the force clause) or "otherwise involves

conduct that presents a serious potential risk of physical injury to another" (the

residual clause).

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On appeal, Robinson appears to concede that he cannot prevail based upon his

prior resisting offense, and he instead claims that the Kansas robbery conviction does

not qualify under the force clause. Robinson cites an unpublished, non-precedential

order and judgment from the Tenth Circuit in support of his argument. United States

v. Nicholas, 686 F. App'x 570, 575-76 (10th Cir. 2017). In Nicholas, the court held

that the degree of physical force required to commit robbery in Kansas does not

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necessarily rise to the level of physical force required to establish a crime of violence

in light of Johnson v. United States, 559 U.S. 133, 140 (2010) (defining "physical

force" in the "force clause" to mean violent force capable of causing physical pain or

injury to another). The Nicholas court relied upon State v. McKinney, 961 P.2d 1

(Kan. 1998) in coming to this conclusion. In McKinney, the defendant argued to the

jury that he merely snatched a woman's purse, but did not shove her, and therefore the

court should have instructed the jury on the lesser included offense of theft. The

Kansas Supreme Court agreed with the government that even if the defendant's

version of events was true, he could still be convicted of robbery. Id. at 8. However,

the court also noted that "theft is not committed where the thief has used force to gain

possession of the property." Id. Nonetheless, based upon McKinney, the Nicholas

court found that the minimum force–snatching a purse without shoving–possible

under Kansas law to support a robbery conviction did not qualify as sufficiently

violent force capable of causing physical pain or injury as required by Johnson. 686

F. App'x 575-76.

Despite our sister circuit's reasoning in Nicholas, we find that Robinson's

arguments concerning the Kansas robbery statute are foreclosed by our panel opinion

in United States v. Brown, 550 F.3d 724 (8th Cir. 2008). In Brown, we construed the

Robinson was convicted under a Kansas statute which definesrobbery as "the 3

taking of property from the person or presence of another by force or by threat of

bodily harm to any person." Kan. Stat. § 21-3462 (1999) (repealed 2011).

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same Kansas robbery statute under § 4B1.2(a)(1) and found that it has as an element

"the use, attempted use, or threatened use of physical force against the person of

another." Id. at 729 (quotation omitted). We further noted that Application Note 1

to the Commentary for § 4B1.2 "define[d] 'crime of violence' to include robbery." Id. 

Because Brown squarely decided the issue in question, and is binding precedent upon

our panel (while Nicholas is not), we reject Robinson's argument that his previous

conviction for robbery does not qualify under the force clause as a predicate offense

for § 4B1.2(a). Accordingly, we affirm the district court. 

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