Derrick D. Jones Movant - Appellant
United States of America Respondent - Appellee
Submitted: January 16, 2019
from United States District Court for the Western District of
Missouri - Kansas City
GRUENDER, KELLY, and GRASZ, Circuit Judges.
GRUENDER, Circuit Judge.
Jones appeals the district court's denial of his
successive motion to vacate his sentence under 28 U.S.C.
§ 2255. We affirm.
2001, Jones was convicted of being a felon in possession of
ammunition and sentenced as an armed career criminal to 293
months' imprisonment and 5 years' supervised release.
See 18 U.S.C. §§ 922(g)(1), 924(e)(1). In
determining that Jones qualified for an enhanced sentence
under the Armed Career Criminal Act ("ACCA"), the
court relied on his prior convictions for first-degree
robbery and second-degree assault. We affirmed on direct
appeal. United States v. Jones, 47 Fed.Appx. 790
(8th Cir. 2002).
2015, the Supreme Court ruled that the ACCA's residual
clause was unconstitutionally vague. Samuel Johnson v.
United States, 135 S.Ct. 2551, 2563 (2015).
Subsequently, the Court held that Samuel Johnson
announced a "new rule" that is retroactive on
collateral review. Welch v. United States, 136 S.Ct.
1257, 1268 (2016). As a result, in October 2016, we granted
Jones authorization to file a successive § 2255
petition. He claimed that his robbery and assault convictions
are not violent felonies without the residual clause, that he
no longer qualifies as an armed career criminal, and that his
293-month sentence exceeds the statutory maximum of 120
Supreme Court explained in Welch, however, it is not
sufficient for a § 2255 movant to show that his original
sentence relied on the unconstitutional residual clause. He
must also show that his prior convictions do not qualify as
violent felonies under the ACCA's force clause or
enumerated-offenses clause, which remain constitutional.
See id. The district court concluded that
Jones's prior Missouri convictions are violent felonies
under the force clause and denied relief. We granted a
certificate of appealability and review de novo
whether his prior convictions qualify as violent felonies.
See United States v. Shockley, 816 F.3d 1058, 1062
(8th Cir. 2016).
concedes that binding circuit precedent dictates that his
prior Missouri second-degree assault convictions are violent
felonies under the force clause. See United States v.
Alexander, 809 F.3d 1029, 1032-33 (8th Cir. 2016). We
therefore need only consider whether Jones's two
convictions under the first-degree robbery statute in effect
at the time, Mo. Rev. Stat. § 560.120 (1969), had
"as an element the use, attempted use, or threatened use
of physical force against the person of another." In
making this determination, we apply the categorical approach,
looking "only to the fact of conviction and the
statutory definition of the prior offense."
Shockley, 816 F.3d at 1063.
560.120 prohibited "feloniously taking the property of
another from his person, or in his presence, and against his
will, by violence to his person, or by putting him in fear of
some immediate injury to his person." Thus, robbery
could be proved "in either of two ways, -namely, by
violence to the person or by putting him or
her in fear of some immediate injury. The State need
not prove both." State v. Hawkins, 418 S.W.2d
921, 924 (Mo. 1967).
first argument focuses on the degree of force necessary for a
conviction under section 560.120. In Curtis Johnson v.
United States, the Supreme Court explained that,
"in the context of a statutory definition of
'violent felony,' the phrase 'physical
force' means violent force-that is, force
capable of causing physical pain or injury to another
person." 559 U.S. 133, 140 (2010). Jones argues that
section 560.120 did not require this degree of force. In
particular, he points out that the Missouri Supreme Court
held that section 560.120 required only the degree of force
sufficient to overcome a victim's resistance or to detach
an article fastened to a victim's clothing. See State
v. Adams, 406 S.W.2d 608, 611 (Mo. 1966); see also
State v. Broderick, 59 Mo. 318, 320-21 (1875). Jones
argues that section 560.120 thus does not meet the threshold
for violent physical force set forth in Curtis
U.S. Supreme Court's recent decision in Stokeling v.
United States, 139 S.Ct. 544 (2019), forecloses
Jones's argument. The Florida statute at issue in
Stokeling defines robbery as "the taking of
money or other property. . . from the person or custody of
another, . . . when in the course of the taking there is the
use of force, violence, assault, or putting in fear."
Id. at 549 (alteration in original) (quoting Fla.
Stat. § 812.13(1)). Like the Missouri Supreme Court,
see Adams, 406 S.W.2d at 611, the Florida Supreme
Court "made clear that this statute requires
'resistance by the victim that is overcome by the
physical force of the offender, '"
Stokeling, 139 S.Ct. at 554-55 (quoting Robinson
v. State, 692 So.2d 883, 886 (Fla. 1997)). In turn, the
U.S. Supreme Court held that, consistent with Curtis
Johnson, the force clause "encompasses robbery
offenses that require the criminal to overcome the
victim's resistance." Id. at 550.
Stokeling thus dictates that section 560.120
qualifies as a violent felony.
argument, Jones attempted to distinguish Stokeling
by pointing to the Supreme Court's observation that
"a defendant who steals a gold chain does not use force,
within the meaning of the [Florida] robbery statute, simply
because the victim fe[els] his fingers on the back of her
neck." Id. at 555 (internal quotation marks
omitted and second alteration in original). But we see no
reason to believe that the Missouri Supreme Court would have
interpreted section 560.120 to criminalize such conduct. As
the court explained in Adams, a defendant had to
overcome the victim's resistance or exercise force in
detaching the article taken, not merely snatch an article
from the victim's hand. 406 S.W.2d at 611. For this
reason, mere contact of fingers to the neck would have been
insufficient to sustain a robbery conviction under section
560.120 because this conduct alone does not overcome the
also argues that section 560.120's "putting him in
fear of some immediate injury to his person" language
precludes application of the ACCA. The Florida robbery
statute at issue in Stokeling includes similar
"putting in fear" language. While the Supreme Court
did not specifically address this language, we previously
have held that statutes that involve "knowingly placing
another person in fear of imminent bodily harm" or
intentionally "caus[ing] fear in another of immediate
bodily harm or death" satisfy the force clause. See
United States v. Schaffer, 818 F.3d 796, 798 (8th Cir.
2016) (internal quotation marks omitted) (quoting United
States v. Salido-Rosas, 662 F.3d 1254, 1256 (8th Cir.
2011)). Jones nevertheless argues that section 560.120
differed from these similar statutes because the Missouri
Supreme Court required a subjective inquiry that turned on
whether or not victims "were actually put in fear."
See Hawkins, 418 S.W.2d at 926. Because we have