1

 The Honorable Rodney W. Sippel, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3090

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Travis Lindsey Yates, *

* [UNPUBLISHED]

Appellant. *

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Submitted: June 12, 2009

Filed: September 9, 2009

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Before BYE, HANSEN, and BENTON, Circuit Judges.

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PER CURIAM.

Travis Lindsey Yates pled guilty in district court1

 to conspiring to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 188

months imprisonment. Yates appeals his sentence. Having jurisdiction under 28

U.S.C. § 1291, this court affirms.
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At the time he was sentenced, Yates had prior convictions for robbery and

felony resisting arrest. The district court determined he was a career offender under

U.S.S.G. § 4B1.1, resulting in an advisory guideline range of 188 to 235 months.

Yates was serving a ten-year state sentence for property damage and possession of a

controlled substance. The district court sentenced him to 188 months imprisonment,

consecutive to his state sentence. 

First, Yates argues that the district court erred in determining he is a career

offender. The career offender provision of the guidelines applies if a defendant has

two prior felony convictions for either a crime of violence or a controlled substance

offense. U.S.S.G. § 4B1.1(a)(3). Yates claims that his conviction for felony resisting

arrest was not a conviction for a crime of violence because he was not actually violent

while committing the crime. This court reviews whether a prior offense is a crime of

violence de novo. United States v. Aleman, 548 F.3d 1158, 1168 (8th Cir. 2008).

The term “crime of violence” means any offense under federal or state

law, punishable by imprisonment for a term exceeding one year, that –

(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or 

(2) is burglary of a dwelling, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another. 

U.S.S.G. § 4B1.2(a).

Yates’s contention, at sentencing and on appeal, is that the district court, and

now this court, should look beyond the charge to which he pled guilty, to the actual

facts underlying the conviction. However, in determining whether a prior conviction

was for a crime of violence, courts may not investigate the facts. James v. United
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States, 550 U.S. 192, 202 (2007); United States v. Clark, 563 F.3d 771, 772-73 (8th

Cir. 2009). 

Yates has never argued, at sentencing or on appeal, that the conviction was not

for a felony. At sentencing, Yates expressly did not object to the factual statements

in the Presentence Report that his conviction for “Resisting Arrest” was a “Felony,”

for which he was “sentenced to 2 years.” Under Missouri law, as it existed at the time

of Yates’s undisputed felony conviction, resisting arrest was a felony only if the

resistance was by means other than flight, and the arrest being resisted was for a

felony. See United States v. McClain, 171 F.3d 1168, 1172 (8th Cir. 1999) (citing

State v. Furne, 642 S.W.2d 614, 616 (Mo. banc 1982)). Resisting arrest by flight was

a misdemeanor. Mo. Rev. Stat. § 575.150.4 (2000). Consequently, Yates’s

undisputed felony conviction means his resistance was (1) not by flight, and (2) in

response to an arrest for a felony. Under § 575.150.1(1), if resistance was not by

flight it had to be “by using or threatening the use of violence or physical force . . .”

That was the felony crime Yates pled guilty to and was convicted of, and that crime

fits the definition of “crime of violence” under U.S.S.G. § 4B1.2(a)(1). The district

court did not err in finding that Yates was a career offender. 

Next, Yates claims the district court erred in ordering a consecutive sentence

because it treated the sentencing guidelines as mandatory. To the contrary, the district

court stated, “The recommended ranges of punishment are incarceration of 188 to 235

months . . . .” Yates’s attorney pointed out to the court that a reduction to reflect the

time Yates had served on his state sentence was “up to the discretion of the Court.”

The district court also stated, “On the other hand, if we have intervening events,

intervening activity, and separate criminal convictions, the guidelines would

recommend that they not be treated the same.” The district court was aware of the

advisory nature of the sentencing guidelines. 

The judgment of the district court is affirmed.

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