Daryl Diemer v. United States ( 2018 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 16-3403
    ___________________________
    Daryl Diemer
    lllllllllllllllllllllPetitioner - Appellant
    v.
    United States of America
    lllllllllllllllllllllRespondent - Appellee
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Kansas City
    ____________
    Submitted: September 21, 2017
    Filed: April 4, 2018
    [Unpublished]
    ____________
    Before LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
    ____________
    PER CURIAM.
    Daryl Diemer pled guilty to one count of being a felon in possession of a
    firearm in violation of 
    18 U.S.C. § 922
    (g)(1). At sentencing, the district court1
    1
    The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
    Western District of Missouri.
    imposed the 15-year mandatory minimum sentence under the Armed Career Criminal
    Act (ACCA), 
    18 U.S.C. § 924
    (e), because Diemer had four previous convictions for
    violent felonies: (1) a Missouri conviction for second-degree robbery; (2) a Missouri
    conviction for second-degree burglary; (3) a Kansas conviction for burglary; and (4) a
    Kansas conviction for attempted aggravated burglary.
    Diemer thereafter moved to vacate his sentence in light of Johnson v. United
    States, 
    135 S. Ct. 2551
     (2015), arguing that neither of his Missouri convictions were
    violent felonies under the ACCA. The district court ruled that Diemer’s second-
    degree robbery conviction was a predicate felony and accordingly found it
    unnecessary to address the argument on his second-degree burglary conviction.
    Diemer then requested a certificate of appealability on the issue of whether a Missouri
    conviction for second-degree burglary is a violent felony within the meaning of the
    ACCA, and we granted that request.
    In light of this court’s en banc decision in United States v. Swopes, No. 16-
    1797, slip op. at 6 (8th Cir. March 29, 2018) (en banc), which held that a “conviction
    for Missouri second-degree robbery [i]s a ‘violent felony’ under the ACCA,” we
    conclude that the district court properly counted Diemer’s second-degree robbery
    conviction as a violent felony under the ACCA. When combined with his two Kansas
    convictions, Diemer has three prior convictions “for a violent felony or a serious drug
    offense,” and thus was properly sentenced as an armed career criminal. § 924(e)(1).2
    We therefore affirm the district court.
    ______________________________
    2
    In his reply brief, Diemer raises for the first time an argument concerning
    whether his Kansas convictions are predicate felonies under the ACCA. We do not
    consider this argument because it is untimely, United States v. Jones, 
    842 F.3d 1077
    ,
    1082 n.2 (8th Cir. 2016), and it exceeds the scope of the certificate of appealability,
    Ramirez v. United States, 
    751 F.3d 604
    , 608-09 (8th Cir. 2014).
    -2-
    

Document Info

Docket Number: 16-3403

Filed Date: 4/4/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021