United States Court of Appeals

For the Eighth Circuit

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No. 15-3506

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Iyaun D. Bell

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - Cape Girardeau

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 Submitted: April 14, 2016

 Filed: October 28, 2016

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Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.

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BRIGHT, Circuit Judge.

Iyaun Bell pleaded guilty to being a felon in possession of a firearm. Prior to

sentencing, the district court calculated Bell's advisory Guidelines range based in part

on the conclusion that Bell had a prior conviction that qualified as a "crime of

violence" under United States Sentencing Guidelines Manual (U.S.S.G.)

§ 2K2.1(a)(4)(A), a calculation which increased the advisoryGuidelines range. After
the district court sentenced Bell to thirty-seven months of imprisonment, Bell filed

this appeal arguing his prior conviction does not qualify as a crime of violence. We

reverse and remand for resentencing.

I

On March 14, 2015, an officer initiated a vehicle stop. The officer observed

the driver throw an object out of the vehicle's window. The officer went to the area

where the object landed and located a firearm with eight rounds of ammunition. The

driver fled. Police eventually apprehended the driver and identified him as Bell.

A federal grand jury indicted Bell with one count of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). Bell pleaded guilty. Prior to

sentencing, a probation officer completed a Presentence Investigation Report (PSR).

The PSR calculated a base-offense level of 20 after concluding Bell had a conviction

under Missouri law for second-degree robbery that qualified as a "crime of violence."

See U.S.S.G. § 2K2.1(a)(4)(A) (providing for a base-offense level of 20 if "the

defendant committed any part of the instant offense subsequent to sustaining one

felony conviction of . . . a crime of violence"). Bell objected. The district court

rejected Bell's objection, adopted the PSR's recommendation, and calculated Bell's

advisory Guidelines range at 37-46 months. The district court then sentenced Bell

to thirty-seven months of imprisonment. This timely appeal followed.

II

A

Bell argues his prior conviction for second-degree robbery should not have

been used to increase his base-offense level because it does not qualify as a crime of

violence. "We review de novo a district court's determination that an offense

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qualifies as a crime of violence under the Guidelines." United States v. Harrison, 809

F.3d 420, 425 (8th Cir. 2015). Unless a statute is divisible, i.e., defines multiple

offenses some of which would qualify as crimes of violence and some of which

would not, we "focus on the generic elements of the offense and not on the specific

facts underlying [the defendant's] conviction." United States v. Gordon, 557 F.3d

623, 625 (8th Cir. 2009); see also United States v. Ossana, 638 F.3d 895, 899-900

(8th Cir. 2011) (explaining the difference between the categorical approach

applicable to indivisible statutes, and the modified categorical approach applicable

to divisible statutes).

Section 2K2.1 incorporates the definition of "crime of violence" used in §

4B1.2(a). See U.S.S.G. § 2K2.1 cmt. n.1. Under the relevant provision of § 4B1.2(a),

the phrase "crime of violence" means "any offense [that] . . . has as an element the

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

In Missouri, "[a] person commits the crime of robbery in the second degree when he

forcibly steals property." Mo. Rev. Stat. § 569.030.1. The term "forcibly steals" is

further defined in a separate statute providing in relevant part that "a person 'forcibly

steals,' and thereby commits robbery, when, in the course of stealing . . . he uses or

threatens the immediate use of physical force upon another person." Mo. Rev. Stat.

§ 569.010(1). Accordingly, Missouri courts have identified § 569.030.1 as setting 1

forth a single indivisible crime containing two generic elements: "stealing and the

Section 569.010 further states the use or threat of immediate physical force 1

must be for certain enumerated purposes: (a) to prevent or overcome resistance to the

taking of property or the retention of property immediately after the taking; or (b) to

compel the property's owner or another person "to deliver up the property or to

engage in other conduct which aids in commission of the theft." The Missouri

Supreme Court has characterized these enumerated purposes as "either defeating

resistance to the theft or compelling the surrender of the property." State v. Coleman,

463 S.W.3d 353, 354 (Mo. 2015) (en banc).

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use of actual or threatened force." Maclin v. State, 184 S.W.3d 103, 109 (Mo. Ct.

App. 2006); see also Hughes v. State, 204 S.W.3d 376, 381 (Mo. Ct. App. 2006).

2

At first blush, then, it appears as though Bell's conviction would qualify as a

crime of violence: a crime of violence has as an element the use, attempted use, or

threatened use of physical force against another person, and an element of seconddegree robbery in Missouri is the use or threat of "physical force upon another

person." Mo. Rev. Stat. § 569.010(1).

The amount of physical force required for a person to be convicted of seconddegree robbery in Missouri does not, however, "necessarily" rise to the level of

physicalforce required for a crime of violence under the Guidelines. See Ossana, 638

F.3d at 900 (explaining a conviction must "necessarily" involve the use, attempted

use, or threatened use of physical force to qualify as a crime of violence under the

Guidelines). The Supreme Court has described this as a "demanding requirement."

Shepard v. United States, 544 U.S. 13, 24 (2005) (plurality opinion).

According to the Supreme Court, "physical force" means "violent force—that

is, force capable of causing physical pain or injury to another person." Johnson v.

United States, 559 U.S. 133, 140 (2010). Thus, the "merest touch" is insufficient, 3

As to the second element requiring the use of actual or threatened force, 2

Missouri's approved model criminal jury instruction for robbery in the second degree

further explains that the use or threat of force must be for one of the purposes

enumerated in Section 569.010. See MAI-CR 3d 323.04.

Although Johnson described the meaning of "physical force" for purposes of 3

determining a "violent felony" under the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e)(2)(B)(i), the phrase has the identical meaning for purposes of

determining a "crime of violence" under the Guidelines. See, e.g., United States v.

Boose, 739 F.3d 1185, 1187 n.1 (8th Cir. 2014).

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but the "degree of force necessary to inflict pain—a slap in the face, for example" is

sufficient to establish "physical force." Id. at 143. When determining whether

Missouri's second-degree robbery statute requiresthe level of violent force described

in Johnson, we must consider not just the language of the state statute involved, but

also the Missouri courts' interpretation ofthe elements ofsecond-degree robbery. See

id. at 138 ("We are . . . bound by the [state] Supreme Court's interpretation of state

law, including its determination of the elements of [the state statute.]"); see also

Western Heritage Ins. Co. v. Asphalt Wizards, 795 F.3d 832, 837 (8th Cir. 2015)

("[W]e follow the decisions of Missouri's intermediate courts when they constitute

the best evidence of Missouri law.").

Moreover, when our focus is on the generic elements of the offense – as is the

case here – rather than a specific defendant's conduct, we must consider the lowest

level of conduct that may support a conviction under the statute. See Moncrieffe v.

Holder,133 S.Ct. 1678, 1684 (2013) ("Because we examine what the state conviction

necessarily involved, not the facts underlying the case, we must presume that the

conviction 'rested upon [nothing] more than the least of th[e] acts' criminalized, and

then determine whether even those acts [would qualify as a crime of violence].")

(quoting Johnson, 559 U.S. at 137). Although the "theoretical possibility" that a state

may apply its statute to conduct falling short of violent force is not enough to

disqualify a conviction, a "realistic probability" will suffice. See id. at 1685 (quoting

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

A Missouri court upheld a conviction for second-degree robbery in at least one

situation where a defendant's conduct appears to have fallen short of using "force

capable of causing physical pain or injury to another person." Johnson, 559 U.S. at

140. In State v. Lewis, the Missouri Court of Appeals sustained a conviction based

on the victim's testimony that the defendant "'bumped her shoulder and 'yanked' her

purse away from her[,]" while "another witnesstestified that [the defendant] 'nudged'

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[the victim]," and yet a "third witness testified that there was a 'slight' struggle" over

the purse. 466 S.W.3d 629, 631 (Mo. Ct. App. 2015). Significantly, the victim did

not testify the slight struggle caused her any pain, or that she was injured by the

incident. Id. Even more significantly, the court explained the line between the

amount of force sufficient to sustain a conviction for second-degree robbery, and

insufficient force: "In sum, where there was no physical contact, no struggle, and no

injury, [Missouri] courts have found the evidence insufficient to support a [seconddegree] robbery conviction. But where one or more ofthose circumstancesis present,

a jury reasonably could find a use of force." Id. at 632 (internal citation omitted)

(emphasis added).

In other words, in Missouri a defendant can be convicted of second-degree

robbery when he has physical contact with a victim but does not necessarily cause

physical pain or injury. Although this is not the same as concluding the force used 4

by such a defendant is not "capable of causing physical pain or injury," Johnson, 559

U.S. at 130 (emphasis added), it does lead us to conclude there is at least a

"reasonable probability" Missouri could apply its statute (or already has) to conduct

falling short of violent force. Moncrieffe, 133 S.Ct. at 1685. However, a seconddegree robbery under Missouri law does not necessarily require use of the type of

violent force described by the Supreme Court in Johnson.

5

Although Lewis was decided in 2015, the seven Missouri cases the court

4

summarized before reaching its conclusion were decided between 1966 and 2010. 

See id. Contrary to the dissent's suggestion otherwise, the result in Lewis does not

represent a change in Missouri law, but an application of existing precedent.

To the extent our prior decisions in United States v. Hennecke, 590 F.3d 619

5

(8th Cir. 2010), and United States v. Green, 157 F.3d 617 (8th Cir. 1998), suggest that

a second-degree robbery under Missouri law would qualify as a crime of violence

under the Guidelines, they have no import here because they were decided prior to

Johnson. See United States v. Anderson, 771 F.3d 1064, 1067 (8th Cir. 2014)

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Our conclusion about Missouri's second-degree robbery statute is consistent

with the FourthCircuit's view of common law robbery under NorthCarolina law. See

United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016) (concluding that "the

minimun conduct necessary to sustain a conviction for North Carolina common law

robbery does not" meet Johnson's violent force requirement, relying on state court

decisions finding that "pushing the victim's hand off of a carton of cigarettes" and

"push[ing] the shoulder of an electronics store clerk, causing her to fall onto shelves

while the defendant took possession of a television" involved sufficient force to

sustain convictions).

Thus,statutesthat criminalize conduct falling short ofJohnson's "violent force"

do not qualify as crimes of violence under U.S.S.G. § 2K2.1(a)(4)(A). Missouri's

second-degree robbery statute issuch a statute, because it does not necessarily require

the use of violent force as one of its elements.

B

The government argues Bell's prior conviction still qualifies as a crime of

violence – even if it does not necessarily involve the level of violent force described

in Johnson – because "robbery" is expressly enumerated as a "crime of violence" in

the commentary to the Guideline's career offender provisions. See U.S.S.G. § 4B1.2

cmt. n.1 ("For purposes of this guideline . . . 'Crime of violence' includes murder,

manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson,

extortion, extortionate extension of credit, and burglary of a dwelling.") (emphasis

added); U.S.S.G. § 2K2.1 cmt. n.1 (incorporating the meaning given to the term

"crime of violence" in "Application Note 1 of the Commentary to § 4B1.2"); see also

(explaining we are not bound by a prior panel decision when it "is cast into doubt by

an intervening Supreme Court decision").

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Stinson v. United States, 508 U.S. 36, 38 (1993) (explaining that the commentary to

the Guidelines "is authoritative unlessit violatesthe Constitution or a federalstatute,

or is inconsistent with, or a plainly erroneous reading of, that [G]uideline").

But at the time of Bell's sentencing – as well as when he committed his instant

federal conviction – the Guideline itself did not listrobbery as an enumerated offense.

At that time, only four crimes were expressly enumerated in § 4B1.2 as crimes of

violence: "burglary of a dwelling, arson, . . . extortion, [or offenses] involv[ing the]

use of explosives." U.S.S.G. § 4B1.2(a)(2)(effective November 1, 2014). The issue, 6

then, is whether the government can rely solely upon the commentary when it

expands upon the four offenses specifically enumerated in the Guideline itself. The

answer is no.

In a post-Johnson decision, the First Circuit considered whether the inclusion

of an offense in the commentary to § 4B1.2, standing alone, was enough to qualify

an offense as a crime of violence. See United States v. Soto-Rivera, 811 F.3d 53 (1st

Cir. 2016). Defendant Soto-Rivera argued his crime of possessing a machinegun did

not qualify as a crime of violence under either the Guideline's "force" clause (the

same clause at issue here), or the Guideline's "residual clause" (identical to the ACCA

residual clause the Supreme Court declared unconstitutional in Johnson). The

government conceded both points, but argued Soto-Rivera's crime still counted as a

crime of violence because it wasincluded in the commentary to § 4B1.2. Id. at 58-59.

The First Circuit disagreed, holding that a Guideline's commentary must be

consistent with the Guideline itself. Id. at 60. The court explained the commentary's

Subsequent to Johnson, the Sentencing Commission amended § 4B1.2, 6

effective August 1, 2016. The Guideline itself now expressly enumerates "robbery"

as a crime of violence, as well as a number of other offenses which were previously

enumerated only in the commentary.

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inclusion of an offense may have been consistent with the Guideline when there was

a residual clause in place to give the offense a "textual hook," id. at 60, but became

inconsistent in the absence of the residual clause:

With § 4B1.2(a) stripped of its residual clause, the government's

position that we may rely on Application Note 1 to uphold Soto-Rivera's

designation as a Career Offender is hopeless. . . . [P]ossession [of a

machinegun] is clearly not one of those specifically-enumerated crimes

listed in U.S.S.G. § 4B1.2(a)(2). Thus, in the absence of the residual

clause, there is nothing within § 4B1.2(a)'stext to serve as an anchor for

Application Note 1'sinclusion of possession of a machinegun within the

definition of crime of violence.

Id.

Similarly, in this case, robbery was not one of the specifically-enumerated

crimes listed in the version of § 4B1.2(a)(2) which applied to Bell. Prior to Johnson,

the residual clause may have served as an anchor for the commentary's inclusion of

"robbery" as a crime of violence because it "otherwise involve[d] conduct that

presents a serious potential risk of physical injury to another." U.S.S.G. §

4B1.2(a)(2) (effective November 1, 2014). Post-Johnson, however, § 4B1.2's

commentary, standing alone, cannot serve as an independent basis for a conviction

to qualify as a crime of violence because "doing so would be inconsistent with the

post-Johnson text of the Guideline itself." Soto-Rivera, 811 F.3d at 60.

By its clear language, once shorn of the residual clause § 4B1.2(a) sets

forth a limited universe of specific offenses that qualify as a "crime of

violence." There is simply no mechanism or textual hook in the

Guideline that allows usto import offenses not specifically listed therein

into § 4B1.2(a)'s definition of "crime of violence." With no such path

available to us, doing so would be inconsistent with the text of the

Guideline.

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Id. We agree with the First Circuit's reasoning in Soto-Rivera, as have other courts.

In United States v. Rollins, No. 13-1731, 2016 WL 4587028 (7th Cir. Aug. 29, 2016),

the Seventh Circuit rejected the government's argument that the commentary to §

4B1.2 independently supports the application of the Guideline's career offender

enhancements, concluding Soto-Rivera "has it exactly right." Id. at *5.

Under § 4B1.2(a), "crime of violence" means subpart 1 (the elements

clause) and subpart 2 (the four specific crimes followed by the residual

clause). If the application note's list is not interpreting one of those two

subparts— and it isn't once the residual clause drops out—then it is in

effect adding to the definition. And that's necessarily inconsistent with

the text of the guideline itself.

Id. at *4; see also United States v. Brown, No. 1:15CR251-1, 2016 WL 4487759, at

*2-3 (M.D. N.C. Aug. 25, 2016) (following the reasoning in Soto-Rivera and

concluding "the inclusion of robbery in the commentary [to § 4B1.2] is now

inconsistent with the Guidelines and that portion of the commentary should be

disregarded"). Bell's prior conviction does not qualify as a crime of violence solely

because "robbery" was included in the commentary to § 4B1.2, and we therefore

reject the government's argument to the contrary.7

The government's reliance upon United States v. Newton, 259 F.3d 964 (8th 7

Cir. 2001), United States v. Brown, 550 F.3d 724 (8th Cir. 2008), and United States

v. Sawyer, 588 F.3d 548 (8th Cir. 2009), is of no import because those cases were all

decided prior to Johnson, when the residual clause still provided a textual hook for

the commentary's inclusion of offenses not otherwise enumerated in § 4B1.2.

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III

For the reasons set forth in this opinion, we reverse and remand for

resentencing consistent with this opinion.

GRUENDER, Circuit Judge, dissenting.

The question in this case is whether Bell’s second-degree robbery conviction

qualifies as a crime of violence under United States Sentencing Guidelines Manual

(“U.S.S.G.”) § 2K2.1(a)(4)(A) and § 4B1.2(a)(1). In my view, it does, as Missouri

second-degree robbery necessarily requires the type of violent force described by the

Supreme Court in Johnson v. United States, 559 U.S. 133 (2010). Because the court

reaches a contrary conclusion, I respectfully dissent.

The court relies on dicta from a single case to conclude that Missouri seconddegree robbery does not necessarily require force capable of causing physical pain or

injury to another person. See State v. Lewis, 466 S.W.3d 629, 632 (Mo. Ct. App.

2015). The court latches on to two sentences in State v. Lewis: “In sum, where there

was no physical contact, no struggle, and no injury, [Missouri] courts have found the

evidence insufficient to support a [second-degree] robberyconviction. But where one

or more of those circumstances is present, a jury reasonably could find a use of

force.” Id. at 632 (citations omitted) (emphasis added). The court then focuses solely

on how physical contact does not meet the force requirement in Johnson. See

Johnson, 559 U.S. at 140 (“[T]he phrase ‘physical force’ means . . . force capable of

causing physical pain or injury to another person.”).

In focusing on this dicta, the court loses sight of the holding of Lewis. See 466

S.W.3d at 631-33. For second-degree robbery to qualify as a crime of violence, the

use or threatened use of force in the course of stealing property from a person must

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be, at a minimum, “capable” of causing pain or injury to that person. See Johnson,

559 U.S. at 140. Lewis does not hold otherwise. To the contrary, the Missouri Court

of Appeals reaffirmed the longstanding definition of second-degree robbery as

“enough force to prevent or overcome . . . resistance,” 466 S.W.3d at 633, and upheld

Lewis’s second-degree robbery conviction when he bumped the victim from behind,

momentarily struggled with her, and then yanked the purse out of her hands, id.

These actions are akin to “a slap in the face” and therefore meet the Johnson 

standard. Johnson, 559 U.S. at 143. 

Despite the court’s opposite interpretation, Lewis does not deal primarily with

physical contact but with actionsthat as a whole are “capable of causing physical pain

or injury to another person.” Id. at 140. The dicta in Lewis—unconnected from its

facts—cannot overcome the consistent line of Missouri second-degree robbery cases

requiring force capable of preventing or overcoming resistance. In fact, Lewis cites

to these exact cases. See State v. Childs, 257 S.W.3d 655, 660 (Mo. Ct. App. 2008)

(finding that a “tussle” satisfied the elements of a robbery because “tussling” means

fighting, struggling, contending, wrestling, and scuffling); State v. Tivis, 884 S.W.2d

28, 30 (Mo. Ct. App. 1994) (concluding that “yanking” a purse off a victim’s

shoulder isinsufficient to prove second-degree robbery without a struggle or injury); 

State v. Butler, 719 S.W.2d 35, 37 (Mo. Ct. App. 1986) (upholding second-degree

robbery where Butler grabbed a woman’s purse and injured her finger). Lewis does

not provide a “realistic probability” that Missouri will apply its second-degree

robbery statute to conduct falling short of violent force. See Moncrieffe v. Holder,

133 S.Ct. 1678, 1685 (2013)(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193

(2007)). Because a “theoretical possibility” is not enough, the district court should

be affirmed. See id.

Even if Lewis could be read to allow for a second-degree robbery conviction

based on conduct falling short of violent force, our decision in United States v.

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Roblero-Ramirez requiresthat we analyze state law at the time of the conviction. 716

F.3d 1122, 1127 (8th Cir. 2013). Doing so leads to the conclusion that Missouri

second-degree robbery qualifies as a crime of violence.

In Roblero-Ramirez, we reversed a sentencing enhancement for a crime of

violence because Roblero-Ramirez’s 2006 Nebraska conviction for manslaughter

required only unintentional conduct, while generic federal manslaughter required

intentional or reckless conduct. 716 F.3d at 1126-27. However, to reach this

conclusion, we relied on the fact that when Roblero-Ramirez was convicted of

manslaughter in 2006, state law did not require proof of intent. Id. While the

Nebraska Supreme Court later held that manslaughter required intent, “[that]

interpretation was not Nebraska law when Roblero-Ramirez was convicted in 2006.” 

Id. at 1127. Thus, we reversed.

Roblero-Ramirez is important because Lewis was decided in 2015, well after

Bell’s conviction for second-degree robbery in 2001. As noted above, at the time of

Bell’s 2001 conviction, Missouri second-degree robbery casesrequired force capable

of preventing or overcoming resistance. See also Brown v. Schnuck Markets, Inc.,

973 S.W.2d 530, 533 n.1 (Mo. Ct. App. 1998) (“Some purse snatchings involve

sufficient force to constitute robbery in the second degree; in others, there is no

violence.”) (quoting Brown v. Nat'l Super Markets, Inc., 731 S.W.2d 291, 294 (Mo.

Ct. App. 1987)). In fact, Lewis is the only Missouri case to include language

implying mere physical contact suffices for robbery in the second degree. See 466

S.W.3d at 632. Therefore, at the time of Bell’s conviction, there was no realistic

probability that Missouri applied its second-degree robbery statute to conduct falling

short of violent force. Even if Lewis stood for the proposition the court suggests, we

should affirmthe district court based on Missouri law at the time of Bell’s conviction.

For the foregoing reasons, I respectfully dissent.

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