Opinion
No. 16-3299
04-20-2018
Andrew J. Maxey Petitioner - Appellant v. United States of America Respondent - Appellee
Appeal from United States District Court for the Western District of Missouri - Kansas City [Unpublished] Before SMITH, Chief Judge, MELLOY and GRUENDER, Circuit Judges. PER CURIAM.
In 2003, Andrew J. Maxey pleaded guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Based on his prior Missouri convictions for four counts of second-degree burglary and seven counts of second-degree attempted robbery, the district court found that Maxey qualified for an enhancement under the Armed Career Criminal Act ("ACCA"). See id. § 924(e). The court then sentenced Maxey to the resulting mandatory minimum of 180 months' imprisonment.
The Honorable Dean Whipple, United States District Judge for the Western District of Missouri. --------
Nearly thirteen years later, Maxey filed a motion to correct his sentence pursuant to 18 U.S.C. § 2255, claiming that his robbery and burglary convictions no longer qualify as ACCA predicate offenses in light of the Supreme Court's decision in Johnson v. United States. See 135 S. Ct. 2551, 2557 (2015) (invalidating the ACCA's residual clause as unconstitutionally vague). The district court denied this motion, holding that both second-degree burglary and second-degree attempted robbery remain violent felonies under the force clause of the ACCA. On appeal, the Government concedes that Maxey's burglary convictions no longer qualify as predicate offenses in light of both Johnson and Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (holding that Iowa's burglary offense did not qualify as violent felony). Thus, the only issue before us is whether Missouri second-degree attempted robbery still qualifies as a violent felony—a legal determination that we review de novo. See United States v. Eastin, 445 F.3d 1019, 1021 (8th Cir. 2006).
The en banc court resolved this precise question in United States v. Swopes. 2018 WL 1525825, at *1 (8th Cir. Mar. 29, 2018) (en banc). Applying the force clause of the ACCA, we held that Missouri second-degree robbery qualifies as a violent felony. See id. at *1-3 (overruling United States v. Bell, 840 F.3d 963 (8th Cir. 2016)). Thus, we conclude that Maxey is not entitled to relief, as his convictions for attempted robbery are sufficient to qualify him as an armed career criminal because this offense "has as an element the . . . attempted use . . . use of physical force against the person of another." See 18 U.S.C. § 924(e)(2)(B).
Accordingly, we affirm the denial of Maxey's § 2255 motion.