Submitted: January 18, 2019
from United States District Court for the Eastern District of
Arkansas - Little Rock
BENTON, MELLOY, and KELLY, Circuit Judges.
BENTON, CIRCUIT JUDGE
T. Stovall pled guilty to distribution of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1). The district
court sentenced him as a career offender to 120
months' imprisonment. He appeals the career offender
determination under U.S.S.G. § 4B1.1. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
Sentencing Guidelines enhance a defendant's base level if
the defendant has "at least two prior felony convictions
of either a crime of violence or a controlled substance
offense." U.S.S.G. § 4B1.1(a).
Stovall concedes he has one conviction for a controlled
substance offense. However, he maintains his Arkansas
convictions for aggravated assault and robbery are not crimes
of violence. This court reviews the issue de novo. See
United States v. McMillan, 863 F.3d 1053, 1055 (8th Cir.
the Sentencing Guidelines, a "crime of violence" is
any offense "under federal or state law, punishable by
imprisonment for a term exceeding one year, that . . . has as
an element the use, attempted use, or threatened use of
physical force against the person of another," or is one
of a list of enumerated offenses (including robbery).
U.S.S.G. § 4B1.2(a). Determining
whether Arkansas robbery is a crime of violence, this court
focuses on the elements of the crime, considering whether
"the state statute defining the crime of conviction
categorically fits within the generic federal definition of a
corresponding crime of violence." United States v.
Kosmes, 792 F.3d 973, 975 (8th Cir. 2015). The
"'generic' federal definition of a crime of
violence . . . mean[s] the sense in which the term is now
used in the criminal codes of most States." Id.
at 976 (internal quotation marks omitted). See Taylor v.
United States, 495 U.S. 575, 598 (1990) (considering the
"generic, contemporary meaning" of a crime).
determine whether a crime falls within the
enumerated-offenses clause," this court begins "by
identifying the elements of the generic enumerated
offense." United States v. Schneider, 905 F.3d
1088, 1093 (8th Cir. 2018). "[T]he enumerated-offenses
clause and its accompanying commentary do not define most of
the generic offenses." Id. But, "[t]he
Supreme Court has explained that how 'the criminal codes
of most States' define an offense provides strong
evidence of its generic meaning." Id. quoting
Taylor, 495 U.S. at 598. In United States v.
House, 825 F.3d 381 (8th Cir. 2016), this court defined
"generic robbery" as "aggravated larceny, or
the misappropriation of property under circumstances
involving immediate danger to a person." House,
825 F.3d at 387. See United States v. Lockley, 632
F.3d 1238, 1243 (11th Cir. 2011) ("[T]he generic form of
robbery may be thought of as aggravated larceny, containing
at least the elements of misappropriation of property under
circumstances involving [immediate] danger to the
person.") (internal quotation marks omitted); United
States v. Santiesteban-Hernandez, 469 F.3d 376, 380 (5th
Cir. 2006), abrogated on other grounds by United States
v. Rodriguez, 711 F.3d 541 (5th Cir. 2013)
("Although the precise state definitions vary, the
generic form of robbery 'may be thought of as aggravated
larceny,' containing at least the elements of
'misappropriation of property under circumstances
involving [immediate] danger to the person.'"),
quoting W. LaFave, Substantive Criminal Law
§ 20.3(e) intro., (d)(2) (2d ed. 2003).
time of Stovall's conviction, Arkansas Code Annotated
§ 5-12-102 said:
(a) A person commits robbery if, with the purpose of
committing a felony or misdemeanor theft or resisting
apprehension immediately thereafter, he employs or
threatens to immediately employ physical force upon
on the plain language of the statute, Arkansas robbery has
the same elements as the generic definition of robbery.
case law confirms this. According to the Arkansas Supreme
Court, "in adopting the criminal code in 1975,"
Arkansas changed the primary emphasis in robbery "from
the taking of property to the threat of physical harm to the
victim." McElyea v. State, 200 S.W.3d 881, 883
(Ark. 2005) (internal quotation marks omitted). Under Ark.
Code Ann. § 5-12-102, "the gravamen of the crime of
robbery is the injury or threat of injury to the
victim." Richard v. State, 691 S.W.2d 872, 874
(Ark. 1985). See McElyea, 200 S.W.3d at 883
("What makes theft robbery is the use of force.").
on United States v. Eason, 829 F.3d 633 (8th Cir.
2016), Stovall asserts his conviction does not meet the
generic federal definition of robbery because "immediate
danger to another person is not a necessary element of
Arkansas's robbery statute." But Eason
considered a different question than presented here. There,
the court considered whether Arkansas robbery was a violent
felony under the force clause of 18 U.S.C. § 924(e).
Because the Arkansas Supreme Court previously had upheld a
robbery conviction "where there was no threat of force
and no actual injury," this court held that "the
degree of physical force required to commit robbery in
Arkansas" does not rise "to the level of physical
force required to establish a crime of violence for ACCA
purposes." Eason, 829 F.3d at 641-42.
does not control the analysis here where the question
concerns the enumerated clause of § 4B1.2(a).
Stovall's reasoning conflates the issues of (1) whether a
conviction is a violent felony under 18 U.S.C. § 924(e),
with (2) whether a conviction is an enumerated offense under
U.S.S.G. § 4B1.2. The inquiry here is not whether the
conviction involved the threat or use of "violent
force," but rather whether the conviction is one for
theft involving "immediate danger." The terms
"violent force" and "immediate danger"
are not synonymous. While Stovall cites Arkansas cases that
potentially involve actions insufficient to constitute
"violent force" under 18 U.S.C. §
924(e)-jerking a victim's hand, blocking a victim's
exit, cornering a victim, and grabbing a victim's
dress-the actions are sufficient to constitute
"immediate danger." See Parker v. State,
529 S.W.2d 860, 863 (Ark. 1975) ("[T]he mere snatching
of money or goods from the ...