Submitted: October 20, 2017
from United States District Court for the District of
Minnesota - St. Paul
LOKEN, GRUENDER, and BENTON, Circuit Judges.
GRUENDER, CIRCUIT JUDGE.
Pettis pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). At
sentencing, the Government argued that Pettis qualified as an
armed career criminal under 18 U.S.C. § 924(e) based on
six predicate convictions under Minnesota law: three for
simple robbery, two for aggravated robbery, and one for
second-degree burglary. Pettis objected to his classification
as an armed career criminal and argued that none of the six
convictions qualified as predicate offenses under the Armed
Career Criminal Act ("ACCA"). The court agreed with
Pettis on five of the six convictions, finding that only one
of his convictions for aggravated robbery qualified as
violent felony for purposes of the ACCA. Because it found
that Pettis had not been convicted of at least three
predicate offenses, the court concluded that Pettis was not
eligible for the ACCA sentencing enhancement. As a result,
Pettis's guidelines range initially was determined to be
151 to 188 months, but because of the ten-year statutory
maximum sentence for a felon-in-possession offense without
the ACCA enhancement, see 18 U.S.C. §
924(a)(2), the guidelines sentence was 120 months,
see U.S.S.G. § 5G1.1(a). The court sentenced
Pettis to 120 months' imprisonment but noted that
"if Mr. Pettis was found to be an armed career criminal
under the ACCA, [it] would impose a sentence of 192
months." The Government timely appealed, arguing that
Pettis qualifies as an armed career criminal.
ACCA's enhanced sentencing penalties apply when a
defendant has three or more convictions for serious drug
offenses or violent felonies. 18 U.S.C. § 924(e). On
appeal, the Government initially argued that all six of the
convictions in question qualify as violent felonies for
purposes of the ACCA and thus that Pettis should receive the
armed career criminal enhancement to his sentence. However,
it now acknowledges that our decision in United States v.
McArthur, 850 F.3d 925 (8th Cir. 2017), forecloses the
possibility of classifying Pettis's burglary conviction
as a predicate offense. Thus, for Pettis to qualify as an
armed career criminal, his Minnesota simple-robbery
convictions must qualify as predicate offenses. Accordingly,
we limit our analysis to that question, which we review
de novo. See United States v. Shockley, 816
F.3d 1058, 1062 (8th Cir. 2016).
relevant here, a violent felony is a crime 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) (the "force clause").
Physical force means "force capable of causing physical
pain or injury to another person." Johnson v. United
States, 599 U.S. 133, 140 (2010). We use the categorical
approach to determine whether a conviction qualifies as a
predicate offense under the force clause of the ACCA. See
Taylor v. United States, 495 U.S. 575, 588-89 (1990).
"Under the categorical approach . . ., we focus on the
elements of the state statute and consider whether a
violation necessarily satisfies the federal definition of
violent felony, " considering both the text of the
statute and the state courts' application of the statute.
United States v. Swopes, 886 F.3d 668, 670, 671 (8th
Cir. 2018) (en banc). In other words, to decide whether
Minnesota simple robbery qualifies as a violent felony, we
must determine whether a conviction for the offense requires
the use, attempted use, or threatened use of force capable of
causing physical pain or injury. To find that a conviction
does not so require, "there must be a realistic
probability, not a theoretical possibility, " that a
person would be convicted for conduct that does not involve
this kind of violent force. Moncrieffe v. Holder,
569 U.S. 184, 191 (2013) (internal quotation marks omitted).
analysis of the text and state-court application of the
Minnesota simple-robbery statute is informed by two recent
decisions. In United States v. Libby, we held that
Minnesota simple robbery requires as an element at least the
threatened use of violent force and thus qualifies as a
violent felony under the ACCA. See 880 F.3d 1011,
1015-16 (8th Cir. 2018). That decision arguably resolves this
case. Since Libby, however, an en banc
panel of this court clarified the proper analysis for
considering whether a statute requires violent force. See
Swopes, 886 F.3d at 670-72 (overruling United States
v. Bell, 840 F.3d 963 (8th Cir. 2016)). Thus, while we
reach the same conclusion as Libby, we revisit the
question with the benefit of this new precedent.
Minnesota, a simple robbery occurs when a person,
"having knowledge of not being entitled thereto, takes
personal property from . . . another and uses or threatens
the imminent use of force against any person to overcome the
person's resistance or powers of resistance to, or to
compel acquiescence in, the taking or carrying away of the
property." Minn. Stat. § 609.24. Citing our
decision in United States v. Eason, 829 F.3d 633
(8th Cir. 2016), interpreting an Arkansas robbery statute,
the district court felt compelled to find that Minnesota
simple robbery does not constitute a violent felony for
purposes of the ACCA. Like the district court below, Pettis
relies heavily on our precedents involving convictions under
similar statutes in other states-namely, Eason and
United States v. Bell, 840 F.3d 963 (8th Cir. 2016),
which examined Missouri second-degree robbery. In those
cases, panels of this court found that convictions under Ark.
Code Ann. § 5-12-102 and Mo. Rev. Stat. § 569.030.1
do not require violent force and do not qualify as predicate
offenses under the ACCA. See Eason, 829 F.3d at
641-42; Bell, 840 F.3d at 966-67.
those decisions do not prevent us from finding that Minnesota
simple robbery qualifies as a violent felony. In
Libby, we compared the text of the Arkansas and
Minnesota statutes and found that because "the statutes
are distinguishable . . . we are not bound by
Eason's holding" when reviewing the
Minnesota simple-robbery statute. 880 F.3d at 1016. Indeed,
the Arkansas statute considered in Eason defines the
requisite force for conviction as "any . . .
[b]odily impact, restraint, or confinement." Ark. Code
Ann. § 5-12-101 (emphasis added). Eason seemed
to read that definition to include even the "merest
touch, " which is insufficient to constitute violent
force under Johnson. See 559 U.S. at 143;
see also Eason, 829 F.3d at 641 ("After
Johnson, [the Arkansas definition of physical
force], on its face, falls short of requiring force capable
of causing physical pain or injury to another person."
(internal quotation marks omitted)). In contrast, the
Minnesota statute requires force sufficient to overcome
resistance. See Minn. Stat. § 609.24.
the Missouri statute, Pettis repeatedly urges that there is
no meaningful difference between it and the Minnesota
statute. We agree. But since Pettis filed his briefs, we have
held that a conviction for Missouri second-degree robbery
qualifies as a violent felony. See Swopes, 886 F.3d
at 672. In Swopes, we explained that the "text
of the Missouri second-degree robbery statute . . . requires
proof that a defendant used physical force or threatened the
immediate use of physical force." Id. The
similarity between the text of the Missouri and Minnesota
statutes thus supports the Government's position.
still leaves Minnesota caselaw applying Minn. Stat. §
609.24. In conducting this analysis, we are again mindful of
the Swopes decision. In Swopes, we
emphasized two considerations for evaluating state caselaw:
we (1) focus on the conduct at issue in the state court
decision rather than isolated dicta and (2) focus
more on the kind of force used-force capable of causing
pain-rather than the degree of force or the resulting harm.
See Swopes, 886 F.3d at 671. Thus, reviewing the
facts of State v. Lewis, 466 S.W.3d 629 (Mo.Ct.App.
2015), we found that "[a] blind-side bump, brief
struggle, and yank-like the 'slap in the face'
posited by Johnson, 559 U.S. at 143-involves a use
of force that is capable of inflicting pain, "
Swopes, 886 F.3d at 671, even where the victim did
not actually suffer pain or injury.
those principles here, we find that a conviction for simple
robbery under Minnesota law requires proof of the use,
attempted use, or threatened use of violent force. In
resisting this conclusion, Pettis relies on a Minnesota Court
of Appeals' statement that "[m]ere force suffices
for the simple robbery statute, " see State v.
Burwell, 506 N.W.2d 34, 37 (Minn.Ct.App. 1993), and he
seems to suggest that "mere force" equates to
"mere touching, " or at least to force that falls
below Johnson's threshold. In context, however,
the language in State v. Burwell distinguished the
"mere force" required for simple robbery from the
actual infliction of bodily harm required for an
aggravated-robbery conviction. Id. Moreover, Pettis
has not identified any case upholding a Minnesota
simple-robbery conviction predicated on force that falls
below Johnson's threshold. See
Moncrieffe, 569 U.S. at 191 (explaining that the
categorical approach "is not an invitation to apply
legal imagination to the state offense" (internal
quotation marks omitted)); cf. Swopes, 886 F.3d at
671 (focusing on the facts underlying the holding of
Lewis rather than dicta).
points to State v. Nelson, 297 N.W.2d 285 (Minn.
1980), as a primary "example demonstrating the minimal
amount of force needed to sustain a simple-robbery
conviction." In that case, the Supreme Court of
Minnesota upheld a simple-robbery conviction where a
"defendant and an accomplice, both young adults,
followed and grabbed a 13-year-old boy after he got off a bus
and after they discussed 'getting' him because he
looked like he had 'lots of money.'"
Id. at 286. The court explained that the defendant
"forcefully pulled on the boy's coat" and
"jostled" him before he was able to slip out of the
coat and run away, unharmed. Id. In Libby,
decided before Swopes, we found that "simply
because the boy avoided actual violent force by fleeing . . .
does not mean that violent force was not threatened."
880 F.3d at 1016. After Swopes, it has become
apparent that the offense in Nelson actually
"did involve the use of violent force, "
not just a threat of violent force. See Swopes, 886
F.3d at 671. Indeed, a jostle accompanied by a forceful
pull-like the "blind-side bump, brief struggle, and
yank" considered in Swopes-"involves a use
of force that is capable of inflicting pain."
Id.; see also Jennings, 860 F.3d at 455
(finding that the "force in Nelson was more