1

The Honorable Howard F. Sachs, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2331

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Western District of Missouri.

*

Theotis Young, * [UNPUBLISHED]

*

Appellant. *

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Submitted: April 13, 2007

Filed: May 3, 2007

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Before WOLLMAN, MURPHY, and BYE, Circuit Judges.

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PER CURIAM.

In this direct criminal appeal of his 30-month sentence for being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), Theotis

Young challenges the district court's1

 determination that one of his prior convictions

is a “crime of violence” within the meaning of U.S.S.G. § 4B1.2(a)(2). Upon de novo

review, see United States v. Bockes, 447 F.3d 1090, 1092 (8th Cir. 2006), we affirm.
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Young pleaded guilty, without a plea agreement, to being a felon in possession

of a firearm. He had a prior Missouri conviction for the felony offense of tampering

in the first degree, in violation of Mo. Rev. Stat. § 569.080.1(2) (2000). At

sentencing, the court admitted into evidence the guilty-plea petition for the tampering

offense, in which Young admitted that he had knowingly, and in concert with others,

operated an automobile without the owner’s consent. The district court imposed the

30-month sentence for the instant felon-in-possession offense based in part on the

court’s characterization of Young’s tampering conviction as a “crime of violence”

under U.S.S.G. § 2K2.1(a)(4), as defined in U.S.S.G. § 4B1.2(a)(2). 

In United States v. Johnson, 417 F.3d 990, 997 (8th Cir. 2005), cert. denied,

127 S. Ct. 285 (2006), we held that the Missouri offense of tampering by operation

of a vehicle, in violation of section 569.080.1(2), is a “violent felony” for purposes of

18 U.S.C. § 924(e). Johnson governs our analysis in this case. See id. at 996

(statutory definition of violent felony is interchangeable with Guidelines definition of

crime of violence). Young seeks to avoid Johnson by arguing that it should be limited

to circumstances in which the defendant is shown to have actually operated the

vehicle. Young asserts that, because he acted in concert with others, no evidence

indicates that he actually drove the car underlying his offense, and his conduct could

have been consistent with mere possession. We do not read Johnson as so limiting.

The Johnson case drew no distinction between solo and group crimes, and rightly so,

because such a distinction would be inconsistent with the general principle that a

person convicted as an accomplice is guilty of the same underlying offense as the

principal. See United States v. Baca-Valenzuela, 118 F.3d 1223, 1232 (8th Cir. 1997)

(there is no separate offense for accomplice liability). 

Thus, Johnson is dispositive, and although Young contends that Johnson is

wrongly decided because it conflicts with Leocal v. Ashcroft, 543 U.S. 1 (2004), and

the decisions of our sister circuits, we are not, sitting as a panel, at liberty to overrule
2

We note that the majority in Johnson specifically declined to be guided by

Leocal, explaining that Leocal addressed the definition of crime of violence for

purposes of 18 U.S.C. § 16(b). See Johnson, 417 F.3d at 996 n.4. In addition, given

our clear precedent, Young’s reliance on decisions of our sister circuits is misplaced.

See United States v. Auginash, 266 F.3d 781, 784 (8th Cir. 2001). 

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Johnson. See Jackson v. Ault, 452 F.3d 734, 736 (8th Cir. 2006) (only en banc court

can overturn panel decision), cert. denied, 127 S. Ct. 946 (2007).2

 

The judgment of the district court is affirmed. 

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