United States v. Bell

United States v. Bell

Opinion

 [*964]  BRIGHT, Circuit Judge.

Iyaun Bell pleaded guilty to being a felon in possession of a firearm. Prior to sentencing, the district court calculated Bell's advisory Guidelines range based in part on the conclusion that Bell had a prior conviction that qualified as a "crime of violence" under United States Sentencing Guidelines Manual (U.S.S.G.) § 2K2.1(a)(4)(A), a calculation which increased the advisory Guidelines range. After the district court sentenced Bell to thirty-seven months of imprisonment, Bell filed this appeal arguing his prior conviction does not qualify as a crime of violence. We reverse and remand for resentencing.

On March 14, 2015, an officer initiated a vehicle stop. The officer observed the driver throw [**2]  an object out of the vehicle's window. The officer went to the area where the object landed and located a firearm with eight rounds of ammunition. The driver fled. Police eventually apprehended the driver and identified him as Bell.

A federal grand jury indicted Bell with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Bell pleaded guilty. Prior to sentencing, a probation officer completed a Presentence Investigation Report (PSR). The PSR calculated a base-offense level of 20 after concluding Bell had a conviction under Missouri law for second-degree robbery that qualified as a "crime of violence." See U.S.S.G. § 2K2.1(a)(4)(A) (providing for a base-offense level of 20 if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of . . . a crime of violence"). Bell objected. The district court rejected Bell's objection, adopted the PSR's recommendation, and calculated Bell's advisory Guidelines range at 37-46 months. The district court then sentenced Bell to thirty-seven months of imprisonment. This timely appeal followed.

Bell argues his prior conviction for second-degree robbery should not have been used to increase his base-offense level [**3]  because it does not qualify as a crime of violence. ] "We review de novo a district court's determination that an offense qualifies as a crime of violence under the Guidelines." United States v. Harrison, 809 F.3d 420, 425 (8th Cir. 2015). Unless a statute is divisible, i.e., defines multiple offenses some of which would qualify as crimes of violence and some of which would not, we "focus on the generic elements of the offense and not on the specific facts underlying [the defendant's] conviction." United States v. Gordon, 557 F.3d 623, 625 (8th Cir. 2009); see also United States v. Ossana, 638 F.3d 895, 899-900 (8th Cir. 2011) (explaining the difference between the categorical approach applicable to indivisible  [*965]  statutes, and the modified categorical approach applicable to divisible statutes).

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