Submitted: May 14, 2019
from United States District Court for the Western District of
Missouri - Springfield
COLLOTON, BEAM, and SHEPHERD, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
Dunlap pleaded guilty to one count of bank robbery and one
count of unlawful possession of a firearm as a previously
convicted felon. See 18 U.S.C. §§ 2113(a),
922(g)(1). At sentencing, the district court determined that
Dunlap's five prior convictions for Missouri
second-degree robbery constituted "violent
felonies" under the Armed Career Criminal Act (ACCA), in
light of United States v. Swopes, 886 F.3d 668 (8th
Cir. 2018) (en banc). Because three prior convictions for a
violent felony qualify a firearms offender as an armed career
criminal, the court imposed an enhanced sentence of 216
months' imprisonment under the ACCA, 18 U.S.C. §
appeal, Dunlap contends that the district court violated his
rights under the Due Process Clause of the Fifth Amendment by
retroactively increasing the severity of his punishment based
on an "unforeseeable" judicial decision in
Swopes that was filed after the commission of his
firearms offense. We conclude that the en banc
decision in Swopes was not so unexpected as to raise
due process concerns, so we affirm.
January 3, 2017, Dunlap robbed a branch of Bank of America in
Springfield, Missouri, and escaped with approximately $3, 910
in cash. Later that day, Springfield police located Dunlap at
a friend's home, where they recovered the stolen money
and a loaded pistol. A grand jury charged Dunlap with bank
robbery and possession of a firearm as a previously convicted
felon. See id. §§ 2113(a), 922(g)(1).
pleaded guilty to both offenses in November 2017, and the
district court scheduled sentencing for March 8, 2018. At
that time, Dunlap would not have qualified as an armed career
criminal under the prevailing law of this circuit. A panel of
this court in United States v. Bell, 840 F.3d 963
(8th Cir. 2016), held that Missouri second-degree robbery was
not a "crime of violence" under the sentencing
guidelines, id. at 969, and Bell dictated
that the robbery offense was not a "violent felony"
under the ACCA either. United States v. Swopes, 850
F.3d 979, 980-81 (8th Cir. 2017) (per curiam). Based on that
state of the law, the probation office recommended an
advisory guideline range for Dunlap of 51 to 63 months'
mid-June 2017, however, this court had granted rehearing
en banc in Swopes to consider anew whether
Missouri second-degree robbery was a violent felony under the
ACCA. The case was submitted in September 2017, and the
government moved to continue Dunlap's sentencing until
the en banc decision was filed. On March 29, 2018,
this court overruled Bell and held that Missouri
second-degree robbery is a violent felony. Swopes,
886 F.3d at 670. The district court then sentenced Dunlap as
an armed career criminal with an advisory guideline range of
188 to 235 months' imprisonment. The Court imposed a
total term of 216 months' imprisonment.
appeal, Dunlap argues that the district court deprived him of
due process under the Fifth Amendment by increasing the
punishment for his firearms offense, after it was completed,
based on an "unforeseeable judicial interpretation"
of the ACCA. We review Dunlap's constitutional challenge
to his sentence de novo. United States v.
Scott, 831 F.3d 1027, 1033 (8th Cir. 2016).
Ex Post Facto Clause of the Constitution does not
apply to judicial decisions, but "limitations on ex
post facto judicial decisionmaking are inherent in the
notion of due process." Rogers v. Tennessee,
532 U.S. 451, 456 (2001). The Due Process Clause does not
incorporate all the protections of the Ex Post Facto
Clause "jot-for-jot," id. at 459, but when
it comes to defining a criminal offense, the Fifth Amendment
bars at least the "unforeseeable and retroactive
judicial expansion of statutory language that appears narrow
and precise on its face." Id. at 457. If a
judicial decision is "unexpected and indefensible by
reference to the law which had been expressed prior to the
conduct in issue," that construction cannot be applied
retroactively. Id. (internal quotation omitted).
an open question whether the Due Process Clause also forbids
retroactive judicial expansion of criminal
punishments, as opposed to criminal liability.
See United States v. Beals, 698 F.3d 248, 272-73
(6th Cir. 2012); Magwood v. Warden, Ala. Dep't of
Corr., 664 F.3d 1340, 1347-48 (11th Cir. 2011). But
assuming without deciding that the Fifth Amendment precludes
certain retroactive increases in punishment occasioned by
judicial decision, we conclude that our en banc
ruling in Swopes was not "unexpected and
indefensible." Rogers, 532 U.S. at 457
(internal quotation omitted).
was this court's first decision after Johnson v.
United States, 559 U.S. 133 (2010), to address whether
Missouri second-degree robbery was a "crime of
violence" under the sentencing guidelines. The issue, as
relevant here, was whether the robbery offense "has as
an element the use, attempted use, or threatened use of
physical force." USSG § 4B1.2(a)(1). The ACCA
includes an identical "force" clause, 18 U.S.C.
§ 924(e)(2)(B)(i), and Johnson explained that
"physical force" in the statute means
"violent force," not "the slightest
offensive touching" that constituted the
"force" element of common-law battery. 559 U.S. at
divided panel in Bell concluded that Missouri
second-degree robbery did not qualify as a "crime of
violence" under the force clause of the guidelines,
because the offense did not necessarily involve the level of
force required by Johnson. 840 F.3d at 966-67. But a
decision of a three-judge panel of a court of appeals is not
the end of the line in the federal judicial system. There is
a hierarchy that allows for en banc consideration of
three-judge panel decisions and Supreme Court review of the
courts of appeals. We were "strongly inclined" in
Hagan v. Caspari, 50 F.3d 542 (8th Cir. 1995), to
say that until a State's highest court has spoken on a
particular point of state law, "the law of the state
necessarily must be regarded as unsettled," id.
at 547, and the same could be said of the federal system. The
Due Process Clause bars retroactive ...