Submitted: January 14, 2019
from United States District Court for the Eastern District of
Arkansas - Western Division
LOKEN, GRASZ, and STRAS, Circuit Judges.
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.
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
adjustments led 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.
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)).
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 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
though, the Supreme Court, also considering the ACCA, has
concluded the force required in the elements clause is the
same as the 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.
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)).
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 decision reviewing a
Minnesota robbery statute. See Taylor v. United
States, No. 17-1760, 2019 WL 2407746, at *2 (8th Cir.
June 7, 2019).
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.
relevant part, the Arkansas robbery statute provides that
"[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).
these decisions, we understand that Arkansas robbery requires
sufficient 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