Shannon D. Robinett, Petitioner - Appellant,
United States of America, Respondent - Appellee.
Submitted: September 21, 2017
from United States District Court for the Western District of
Missouri - Kansas City
COLLOTON, BENTON, and KELLY, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
D. Robinett sought post-conviction relief in the district
court on the ground that his fifteen-year prison
sentence under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(1), was imposed in violation of the
Constitution and in excess of the maximum authorized by law.
Robinett contends that in light of Johnson v. United
States, 135 S.Ct. 2551 (2015), which held that the
residual clause of § 924(e)(2)(B)(ii) is
unconstitutionally vague, the sentencing court should not
have concluded that he sustained three previous convictions
for a violent felony. As such, he argues, enhanced punishment
under the ACCA was imposed unconstitutionally and in excess
of the statutory maximum. The district court concluded that
Robinett still had at least three qualifying prior
convictions and denied relief. We agree and therefore affirm.
pleaded guilty in 2009 to unlawful possession of a firearm as
a previously convicted felon under 18 U.S.C. §
922(g)(1). Under the ACCA, a defendant who violates §
922(g) is subject to a statutory minimum of fifteen
years' imprisonment if he has sustained three or more
previous convictions for a violent felony committed on
occasions different from one another. 18 U.S.C. §
924(e)(1). Otherwise, the maximum sentence is 10 years'
imprisonment. Id. § 924(a)(2).
ACCA defines "violent felony" as "any crime
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, " (2) "is burglary, arson,
or extortion, [or] involves use of explosives, " or (3)
"otherwise involves conduct that presents a serious
potential risk of physical injury to another."
Id. § 924(e)(2)(B). These three clauses are
sometimes described, respectively, as the force clause, the
enumerated-offenses clause, and the residual clause. The
sentencing court determined that Robinett had sustained three
prior convictions for violent felonies and sentenced him to
the statutory minimum term of fifteen years'
imprisonment. The court did not specify the clause on which
it relied to count each previous conviction, but Robinett had
sustained three convictions that qualified under the residual
clause at the time of sentencing. Since then, however, the
Supreme Court in Johnson declared the residual
clause unconstitutionally vague, and then held that
Johnson applies retroactively to cases on collateral
review. Welch v. United States, 136 S.Ct. 1257, 1265
moved to correct his sentence under 28 U.S.C. § 2255. He
urged that without the residual clause of § 924(e), he
had not sustained three prior convictions that qualify as
violent felonies. The district court denied his motion,
concluding that four of Robinett's prior convictions
qualify under the force clause. The court relied on two
convictions for second-degree assault in Missouri, a
conviction for second-degree robbery in Missouri, and a
conviction for robbery in Kansas.
appeal, Robinett argues that neither his Missouri
second-degree robbery conviction nor his Kansas robbery
conviction is a violent felony under the force clause. He
also contends that the district court erred by counting his
two convictions for second-degree assault as separate
previous convictions, because the offenses were not
"committed on occasions different from one another"
within the meaning of § 924(e)(1).
no error in the district court's counting of the two
assault convictions. In a § 2255 proceeding, Robinett
bears the burden to show that he is entitled to relief.
Word v. United States, 604 F.2d 1127, 1130 (8th Cir.
1979). Yet he never argued in the district court that his two
assault convictions should be treated as only one violent
felony conviction under the ACCA. The district court, after
referring to Robinett's robbery convictions, observed
that Robinett "does not dispute that his other two
predicate offenses, two counts of second-degree assault,
qualify as predicate offenses without the use of the residual
clause." Robinett now contends that his § 2255
petition raised the issue by stating that his presentence
report counted as a violent felony "two
concurring counts of assault in the second
degree." In the next sentence of his petition, however,
Robinett acknowledged that "the assault convictions
remain violent felonies in the absence of the residual
clause." His reference to the "assault
convictions" (plural) as "violent felonies"
(plural) is consistent with the district court's
conclusion that Robinett did not dispute counting these
convictions as two predicate felonies.
only evidence in the record about the assault convictions is
from Robinett's presentence report. The report said that
a two-count information charged that Robinett, on August 22,
1993, "attempted to cause physical injury to Robert
Reynolds (Count 1) and Bryan Hughes (Count 2) by means of a
dangerous instrument." That the assaults were committed
on the same date does not establish that they were committed
on the same occasion. If Robinett assaulted two different
victims at different times in different locations, then the
offenses likely were committed on occasions different from
one another within the meaning of § 924(e). See
United States v. Humphrey, 759 F.3d 909, 911 (8th Cir.
2014). Because Robinett did not challenge the counting of two
assault convictions in the district court, and has not
satisfied his burden to prove that the assaults were
committed on a single occasion, the district court did not
err by counting the two assault convictions as two predicate
offenses under the ACCA.
also contends that neither the conviction for Missouri
second-degree robbery nor the conviction for Kansas robbery
counts as a violent felony. In United States v.
Swopes, No. 16-1797, slip op. (8th Cir. Mar. 29, 2018)
(en banc), however, this court held that Missouri
second-degree robbery is categorically a violent felony under
the force clause. Therefore, considering the two Missouri
assault convictions and the Missouri conviction for
second-degree robbery, Robinett has not undermined the
sentencing court's conclusion that he had sustained three
previous qualifying convictions for a violent felony. It is
not necessary to address whether the Kansas conviction for
robbery also qualifies.
has not established that his sentence was imposed in
violation of the Constitution or in excess of the maximum
authorized by law. The ...