United States Court of Appeals

For the Eighth Circuit

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No. 13-1094

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Albert Lambers

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: August 19, 2013

Filed: August 22, 2013

[Unpublished]

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Before SMITH, BOWMAN, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Albert Lambers pleaded guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g). The presentence report noted that he had three prior

felony convictions which qualified as violent felonies or serious drug offenses (a

1996 Missouri voluntary-manslaughter conviction, a 1999 Missouri stealing-from-aperson conviction, and a 2002 federal conviction for possessing cocaine base with
intent to distribute), and thus recommended applying 18 U.S.C. § 924(e) with its

mandatory minimum prison term of 15 years. The government moved under 18

U.S.C. § 3553(e) for a sentence below the mandatory minimum. After concluding

that section 924(e) applied to Lambers, the district court granted the government’s 1

motion and sentenced him to 84 months in prison and 3 years of supervised release. 

On appeal, defense counsel has filed a brief under Anders v. California, 386

U.S. 738 (1967), arguing that Lambers’s manslaughter conviction was not a violent

felony under section 924(e), because it required a mens rea of only sudden passion

rather than intentional, purposeful conduct; that the Missouri stealing-from-a-person

offense was not a violent felony, contrary to the holding in United States v.

Hennecke, 590 F.3d 619 (8th Cir. 2010); and that, because the court sentencing

Lambers in 2002 did not determine whether the prior manslaughter and stealing

convictions were crimes of violence under USSG §4B1.2(a), the government was

collaterally estopped from arguing in this case that they were violent felonies. 

Lambers’s pro se submission restates his counsel’s arguments, which we reject.

First, the stealing conviction was a violent felony. See Hennecke, 590 F.3d at

622-24 (Missouri stealing-from-a-person conviction is crime of violence because it

otherwise involves conduct that presents serious potential risk of physical injury to

another under USSG §4B1.2(a)(2));see also United States v. Montgomery, 701 F.3d

1218, 1222 n.3 (8th Cir. 2012) (courts treat as interchangeable crime of violence

under USSG §4B1.2(a) and violent felony under § 924(e)). Likewise, the

manslaughter conviction was a violent felony, as Missouri’s voluntary-manslaughter

statute contains an element of using physical force against another person. See 18

U.S.C § 924(e)(2)(B)(i); State v. Twenter, 818 S.W.2d 628, 634 (Mo. 1991)

(voluntary-manslaughter statute in Missouri proscribes the knowing killing of a

The Honorable Catherine D. Perry, Chief Judge, United States District Court

1

for the Eastern District of Missouri.

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person under the influence of sudden passion arising from adequate cause). Finally,

the doctrine of issue preclusion did not bar the district court fromdetermining that the

manslaughter and stealing convictions were violent felonies, asthose issues were not

addressed when Lambers wassentenced in 2002. See B & B Hardware, Inc. v. Hargis

Indus., 716 F.3d 1020, 1024 (8th Cir. 2013) (issue preclusion applies when party

sought to be precluded was party or in privity with party to prior action; and issue is

the same as one that was actually litigated in prior action, was determined by valid

and final judgment, and was essential to prior judgment).

Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75

(1988), we have found no nonfrivolous issues. Accordingly, we affirm the judgment

of the district court, and we grant counsel’s motion to withdraw, subject to counsel

informing appellant about procedures for seeking rehearing or filing a petition for

certiorari.

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