United States Court of Appeals

For the Eighth Circuit

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No. 17-3760

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Dominic L. Smith

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Arkansas - Western Division

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Submitted: January 14, 2019

Filed: June 27, 2019

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Before LOKEN, GRASZ, and STRAS, Circuit Judges.

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GRASZ, Circuit Judge.

Dominic L. Smith appeals the sentence imposed after his guilty plea to one

count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). 

He argues the district court erred in calculating his Guidelines range. We affirm. 1

The Honorable Brian S. Miller, Chief Judge, United States District Court for

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the Eastern District of Arkansas.
At sentencing, the district court calculated Smith’s base offense level at 26

because he had at least two felony convictions of either a crime of violence or a

controlled substance offense. U.S. Sentencing Guidelines Manual (“U.S.S.G.” or

“Guidelines”) § 2K2.1(a)(1). Smith had a criminal history of VI, and other

adjustmentsled to a final offense level of 29, which resulted in a recommended range

of 151 to 188 months of imprisonment. The statute, however, restricted Smith’s

actual Guidelines range to a maximum of 120 months. The district court imposed the

statutory maximum.

Smith concedes he has a conviction for a controlled substance offense but

argues for the first time on appeal that his prior conviction for Arkansas aggravated

robbery does not qualify as a crime of violence. Although we generally review the

interpretation of the Guidelines de novo, United States v. Watson, 650 F.3d 1084,

1091 (8th Cir. 2011), we review issues raised for the first time on appeal for plain

error, United States v. Thomas, 790 F.3d 784, 786 (8th Cir. 2015). In order to prevail,

Smith must show “(1) there was error, (2) the error was plain, and (3) the error

affected his substantial rights.” Id. (quoting United States v. Miller, 557 F.3d 910,

916 (8th Cir. 2009)).

We have previously held Arkansas robbery is not a violent felony under the

Armed Career Criminal Act (“ACCA”). United States v. Eason, 829 F.3d 633, 642

(8th Cir. 2016). The ACCA defines violent felonies to include any felony that “has

as an element the use, attempted use, or threatened use of physical force against the

person of another.” 18 U.S.C. § 924(e)(2)(B)(i) (referred to as the “elements clause”

or the “force clause”). In Eason, we observed that Arkansas robbery requires less

force than the violent force required by the elements clause, 829 F.3d at 642, and the

same definition applies to a ‘crime of violence’ under the Guidelines. See U.S.S.G.

§ 4B1.2(a)(1); see also United States v. Furqueron, 605 F.3d 612, 614 (8th Cir.

2010). Our opinion in Eason relied on applying the standard for violent force thought

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to be required by Curtis Johnson v. United States, 559 U.S. 133, 140 (2010), to the

elements clause of the ACCA. 829 F.3d at 640–41.

Recently, though, the Supreme Court, also considering the ACCA, has

concluded the force required in the elements clause isthe same asthe force in generic

robbery in the enumerated offenses clause. See Stokeling v. United States, 139 S. Ct.

544, 551 (2019). Thus, after Stokeling, for purposes of robbery we treat the level of

force as the same under both the elements clause and the enumerated offense.

Plainly stated, Stokeling abrogated our force analysis in Eason. Stokeling

elucidated Curtis Johnson by clarifying that the elements clause only requires that

“[s]ufficient force must be used to overcome resistance . . . however slight the

resistance.” See Stokeling, 139 S. Ct. at 551 (quoting W. Clark & W. Marshall, Law

of Crimes 553 (H. Lazell ed., 2d ed. 1905)). The Court noted the force in the

elements clause is derived from the definition of common law robbery. See id. The

key distinction in determining whether a state robbery statute meets this definition of

force is whether the “statute requires‘resistance by the victim that is overcome by the

physical force of the offender’” or encompasses “[m]ere ‘snatching of property from

another.’” Id. at 555 (quoting Robinson v. State, 692 So.2d 883, 886 (Fla. 1997)).

This court’s recent decision in United States v. Swopes reached a similar

conclusion on the definition of force. 886 F.3d 668, 671 (8th Cir. 2018) (en banc). 

We found a Missouri robbery statute satisfied the elements clause because the statute

required sufficient force to overcome a victim’s resistance. Id. at 671. We observed

that Missouri courts allowed a conviction where “there was a ‘[t]ussle’ between the

defendant and the victim,” id. at 672 (quoting State v. Childs, 257 S.W.3d 655, 660

(Mo. Ct. App. 2008) (alteration in original)), but overturned a conviction “where the

defendant merely ‘grabbed the [victim’s] purse by its strap, took it from her shoulder

and ran off,’” id. (quoting State v. Tivis, 884 S.W.2d 28, 29 (Mo. Ct. App. 1994)). 

We also applied this definition from both Swopes and Stokeling in another recent

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decision reviewing a Minnesota robbery statute. See Taylor v. United States, No.

17-1760, 2019 WL 2407746, at *2 (8th Cir. June 7, 2019).

Here, we conclude Arkansas robbery also requires the same level of force as

this understanding of common law robbery. In determining whether an offense is a

crime of violence, “we apply a categorical approach, looking to the elements of the

offense to determine whether the conviction constitutes a crime of violence.” 

Furqueron, 605 F.3d at 614. We consider “both the text of the statute and how the

state courts have applied the statute.” Swopes, 886 F.3d at 671. 

In relevant part, the Arkansas robbery statute providesthat “[a] person commits

robbery if . . . the person employs or threatens to immediately employ physical force

upon another person.” Ark. Code Ann. § 5-12-102. The Arkansas Supreme Court

has explained that the adoption of a criminal code in 1975 changed Arkansas’s

robbery statute from emphasizing “the taking of property to ‘the threat of physical

harm to the victim.’” McElyea v. State, 200 S.W.3d 881, 883 (Ark. 2005) (quoting

Jarrett v. State, 580 S.W.2d 460, 461 (Ark. 1979)). It has found “jerking the door

from[a victim], cornering her in the back hallway and grabbing her dress” constitutes

sufficient force for robbery because that conduct overcame resistance. Fairchild v.

State, 600 S.W.2d 16, 17 (Ark. 1980). In contrast, the Arkansas Supreme Court has

stated “the mere snatching of money or goods from the hand of another is not

robbery, unless some injury is done to the person or there be some struggle for

possession of the property prior to the actual taking or some force used in order to

take it.” Parker v. State, 529 S.W.2d 860, 863 (Ark. 1975). 

From these decisions, we understand that Arkansas robbery requiressufficient

force to overcome a victim’s resistance and does not criminalize mere snatching of

property. Arkansas robbery, then, satisfies both the elements clause and generic

robbery in the enumerated offenses clause of U.S.S.G. § 4B1.2.

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As a result, we conclude both Arkansas robbery and Arkansas aggravated

robbery are crimes of violence. An offense is a crime of violence if its lesser included

offense is a crime of violence. See United States v. Douglas, No. 11CR324, 2017 WL

4737243, at *3 (D. Minn. Oct. 19, 2017). Under Arkansas law, “[r]obbery is a lesserincluded offense of aggravated robbery.” Brown v. State, 60 S.W.3d 422, 425 (Ark.

2001). It follows that because Arkansas robbery is a crime of violence, Arkansas

aggravated robbery is also a crime of violence. Thus, we hold the district court

properly categorized Smith’s prior conviction for Arkansas aggravated robbery as a

crime of violence for purposes of U.S.S.G. § 2K2.1(a)(1).

Accordingly, we affirm the judgment of the district court.

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