United States v. Theotis Young , 229 F. App'x 423 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2331
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Theotis Young, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 13, 2007
Filed: May 3, 2007
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Before WOLLMAN, MURPHY, and BYE, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal of his 30-month sentence for being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), Theotis
Young challenges the district court's1 determination that one of his prior convictions
is a “crime of violence” within the meaning of U.S.S.G. § 4B1.2(a)(2). Upon de novo
review, see United States v. Bockes, 447 F.3d 1090, 1092 (8th Cir. 2006), we affirm.
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
Young pleaded guilty, without a plea agreement, to being a felon in possession
of a firearm. He had a prior Missouri conviction for the felony offense of tampering
in the first degree, in violation of Mo. Rev. Stat. § 569.080.1(2) (2000). At
sentencing, the court admitted into evidence the guilty-plea petition for the tampering
offense, in which Young admitted that he had knowingly, and in concert with others,
operated an automobile without the owner’s consent. The district court imposed the
30-month sentence for the instant felon-in-possession offense based in part on the
court’s characterization of Young’s tampering conviction as a “crime of violence”
under U.S.S.G. § 2K2.1(a)(4), as defined in U.S.S.G. § 4B1.2(a)(2).
In United States v. Johnson, 417 F.3d 990, 997 (8th Cir. 2005), cert. denied,
127 S. Ct. 285 (2006), we held that the Missouri offense of tampering by operation
of a vehicle, in violation of section 569.080.1(2), is a “violent felony” for purposes of
18 U.S.C. § 924(e). Johnson governs our analysis in this case. See id. at 996(statutory definition of violent felony is interchangeable with Guidelines definition of
crime of violence). Young seeks to avoid Johnson by arguing that it should be limited
to circumstances in which the defendant is shown to have actually operated the
vehicle. Young asserts that, because he acted in concert with others, no evidence
indicates that he actually drove the car underlying his offense, and his conduct could
have been consistent with mere possession. We do not read Johnson as so limiting.
The Johnson case drew no distinction between solo and group crimes, and rightly so,
because such a distinction would be inconsistent with the general principle that a
person convicted as an accomplice is guilty of the same underlying offense as the
principal. See United States v. Baca-Valenzuela, 118 F.3d 1223, 1232 (8th Cir. 1997)
(there is no separate offense for accomplice liability).
Thus, Johnson is dispositive, and although Young contends that Johnson is
wrongly decided because it conflicts with Leocal v. Ashcroft, 543 U.S. 1 (2004), and
the decisions of our sister circuits, we are not, sitting as a panel, at liberty to overrule
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Johnson. See Jackson v. Ault, 452 F.3d 734, 736 (8th Cir. 2006) (only en banc court
can overturn panel decision), cert. denied, 127 S. Ct. 946 (2007).2
The judgment of the district court is affirmed.
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2
We note that the majority in Johnson specifically declined to be guided by
Leocal, explaining that Leocal addressed the definition of crime of violence for
purposes of 18 U.S.C. § 16(b). See Johnson, 417 F.3d at 996 n.4. In addition, given
our clear precedent, Young’s reliance on decisions of our sister circuits is misplaced.
See United States v. Auginash, 266 F.3d 781, 784 (8th Cir. 2001).
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