United States Court of Appeals

For the Eighth Circuit

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No. 16-2542

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Rodney P. Taylor

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Western Division

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 Submitted: March 6, 2017

Filed: June 13, 2017

[Unpublished]

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Before RILEY, Chief Judge, GRUENDER and KELLY, Circuit Judges.

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RILEY, Chief Judge.

The Honorable William Jay Riley stepped down as Chief Judge of the United

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States Court of Appeals for the Eighth Circuit at the close of business on March 10,

2017. He has been succeeded by the Honorable Lavenski R. Smith. 
Rodney Taylor entered a conditional plea of guilty to being a felon in

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

district court adopted the presentence investigation report’s (PSR) recommended

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sentencing range and sentenced Taylor to 77 months imprisonment. Taylor appeals

(1) the district court’s determination that his base offense level was 24 under United

States Sentencing Guidelines (U.S.S.G. or Guidelines) § 2K2.1(a)(2), and (2) the

district court’s denial of his motion to dismiss the indictment because § 922(g)(1) is

unconstitutional under the Second Amendment of the United States Constitution as

applied to him. Having appellate jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

On September 18, 2014, officers from the Kansas City, Missouri, Police

Department responded to a 911 call in which the caller stated Taylor refused to leave

her apartment and she feared Taylor might have a gun. Officers met the caller outside

the apartment building. The caller told the officers Taylor spoke of having a gun and

he shot someone in the past. Officers entered the apartment and found Taylor in the

caller’s bed. After Taylor denied possessing a firearm, an officer frisked him and felt

the outline of a handgun in Taylor’s right front pant pocket. Officers placed Taylor

in handcuffs and removed a loaded revolver from his pocket. A criminal record

check revealed Taylor had multiple prior felony convictions in Missouri. Officers

arrested Taylor for being a felon in possession of a firearm. 

Before trial, Taylor moved to dismiss the federal grand jury indictment

charging him with being a felon in possession of a firearm, arguing 18 U.S.C.

§ 922(g)(1) was unconstitutional because it violated his right to keep and bear arms

under the Second Amendment. The district court denied Taylor’s motion to dismiss. 

Taylor entered a conditional plea of guilty, reserving his right to appeal the district

The Honorable Howard F. Sachs, United States DistrictJudge for the Western 2

District of Missouri. 

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court’s denial of his motion to dismiss the indictment. The district court accepted

Taylor’s conditional plea. 

The PSR calculated Taylor’s base offense level under U.S.S.G. § 2K2.1(a)(2)

as 24. Having received a three-level reduction for acceptance of responsibility,

Taylor’s total offense level was 21. When paired with Taylor’s category VI criminal

history, the PSR advised a Guidelines sentencing range of 77 to 96 months

imprisonment. At his sentencing hearing, Taylor argued his base offense level should

be 20, not 24, because his prior felony convictions for unlawful use of weapons in

violation of Mo. Rev. Stat. § 571.030.1(4) do not qualify as “crimes of violence”

under § 4B1.2(a) of the Guidelines. The district court overruled Taylor’s objections

and sentenced him to 77 months imprisonment. 

II. DISCUSSION

Taylor argues his calculated base offense level of 24 is improper because his

prior felony convictions for unlawful use of weapons do not qualify as crimes of

violence under § 4B1.2(a) of the Guidelines. We review the district court’s findings

of fact for clear error and its interpretation and application of the Guidelines de novo.

See United States v. Johnson, 846 F.3d 1249, 1250 (8th Cir. 2017). Under the

Guidelines, a felon in possession of a firearm with at least two prior felony

convictions for a controlled-substance offense or crime of violence receives a base

offense level of 24. See U.S.S.G. § 2K2.1(a)(2). Section 4B1.2(a) of the 2005

Guidelines defined crime of violence as:

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

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(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. 

Taylor was convicted in Missouri state court on two counts of unlawful use of

weapons in violation of Mo. Rev. Stat. § 571.030.1(4), which states, in relevant part:

“[a] person commits the offense of unlawful use of weapons . . . if he or she

knowingly . . . [e]xhibits, in the presence of one or more persons, any weapon readily

capable of lethal use in an angry or threatening manner.” When deciding whether a

crime qualifies as a violent felony under 18 U.S.C. § 924(e)(2)(B) of the Armed

Career Criminal Act (ACCA) or a crime of violence under § 4B1.2(a) of the

Guidelines, “[w]e sometimes refer to subparagraph (1) as the ‘force’ clause . . . [and]

subparagraph (2) as the ‘residual,’ or ‘otherwise,’ clause.” United States v. Boose,

739 F.3d 1185, 1186 (8th Cir. 2014) (first citing United States v. Tessmer, 659 F.3d

716, 718 (8th Cir. 2011); and then citing United States v. Craig, 630 F.3d 717, 724

(8th Cir. 2011)); see also United States v. Vincent, 575 F.3d 820, 826 (8th Cir. 2009)

(recognizing the definitions of “crime of violence” under the Guidelines and “violent

felony” under § 924(e)(2)(B) of the ACCA are interchangeable). 

We consistently have held a conviction in violation of Missouri’s

§ 571.030.1(4) qualifies as a crime of violence under the force clause and the residual

clause in the Guidelines. See, e.g., United States v. Hudson, 851 F.3d 807, 810 (8th

Cir. 2017) (holding a prior conviction in violation of § 571.030.1(4) qualifies “as a

crime of violence under both the force clause of U.S.S.G. § 4B1.2(a)(1) . . . and the

residual clause of § 4B1.2(a)(2)”); United States v. Jackson, 462 F.3d 899, 901 (8th

Cir. 2006) (holding “a violation of § 571.030.1(4) . . . presents a serious potential risk

of physical injury to another . . . and is therefore a crime of violence under

§ 4B1.2(a)(2) [the residual clause in the Guidelines]” (internal quotations omitted)). 

In Hudson, addressing a nearly identical argument to Taylor’s, we confirmed

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§ 571.030.1(4) is a crime of violence under the Guidelines and a violent felony under

the ACCA. See Hudson, 851 F.3d at 810.

Taylor argues the Supreme Court rulings in Samuel Johnson v. United States,

576 U.S. ___, 135 S. Ct. 2551 (2015), and Curtis Johnson v. United States, 559 U.S.

133 (2010), supercede our decisions under the ACCA, and thus preclude finding

§ 571.030.1(4) is a crime of violence under the Guidelines. We disagree. In Hudson,

we determined “nothing in Samuel Johnson [or Curtis Johnson] call[ed] into question

the reasoning in Pulliam.” Hudson, 851 F.3d at 809 (citing United States v. Pulliam,

566 F.3d 784, 788 (8th Cir. 2009) (concluding § 571.030.1(4) qualifies as a violent

felony under the force clause of the ACCA “because it involves the use, attempted

use, or threatened use of physical force against the person of another” (internal

quotations omitted))). Ultimately,we concluded “[u]nder [Eighth] [C]ircuit precedent

. . . [a] prior conviction [under Missouri’s § 571.030.1(4)] qualified as a crime of

violence under both the force clause of USSG § 4B1.2(a)(1) (Pulliam) and the

residual clause of § 4B1.2(a)(2) ([United States v.] Fields [167 F.3d 1189, 1191 (8th

Cir. 1999)] and Jackson).” Id. at 810; see United States v. Eason, 829 F.3d 633, 641

(8th Cir. 2016) (“It is a cardinal rule in our circuit that one panel is bound by the

decision of a prior panel.” (quoting United States v. Anderson, 771 F.3d 1064, 1066

(8th Cir. 2014))).

Taylor argues § 922(g)(1) is unconstitutional as applied to him because he is

a non-violent felon and a permanent ban on possessing and carrying firearms violates

his Second Amendment right to keep and bear arms. “We review the constitutionality

of [§ 922(g)(1)] de novo.” United States v. Seay, 620 F.3d 919, 923 (8th Cir. 2010). 

We have held “it is well settled that Congress did not violate the Second Amendment

or exceed its authority under the Commerce Clause when enacting . . . § 922(g).” 

United States v. Joos, 638 F.3d 581, 586 (8th Cir. 2011). While Taylor concedes he

has prior felony convictions, he argues “neither the instant offense nor [his] prior

felonies involved violent conduct.” But violations of § 571.030.1(4) “present[] a

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serious potential risk of physical injury to another.” Jackson, 462 F.3d at 901

(internal quotations omitted). Taylor has not demonstrated he is a non-violent felon. 

See, e.g., United States v. Bena, 664 F.3d 1180, 1183 (8th Cir. 2011) (“[A] restriction

such as prohibiting the possession of firearms by violent felons does not ‘impair the

core conduct upon which the [Second Amendment] right was premised.’” (quoting

Parker v. District of Columbia, 478 F.3d 370, 399 (D.C. Cir. 2007))).

III. CONCLUSION

We affirm.

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