United States v. DeMarko Collins ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1637
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
DeMarko L. Collins
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: March 12, 2018
Filed: April 23, 2018
[Unpublished]
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Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.
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PER CURIAM.
DeMarko L. Collins pleaded guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and to possession of a stolen
firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). The district court1
sentenced Collins to 108 months’ imprisonment on each count to run consecutively
followed by a three-year term of supervised release. Collins argues the district court
erred in applying two sentencing enhancements to his convictions under the United
States Sentencing Guidelines (Guidelines or U.S.S.G.). We affirm.
Collins argues that the district court erred in imposing a four-level sentencing
enhancement because the court incorrectly determined that Collins’s prior Missouri
conviction for second-degree robbery was a “crime of violence” under the Guidelines.
U.S.S.G. § 2K2.1(a)(2); see also Mo. Rev. Stat. § 569.030.1 (1979).2 This argument
is foreclosed, however, because in United States v. Swopes, 886 F.3d 668 (8th Cir.
2018) (en banc) we held that a “conviction for Missouri second-degree robbery [i]s
a ‘violent felony’ under the [Armed Career Criminal Act (ACCA)].”3 Our precedent
views a “violent felony” under the ACCA and a “crime of violence” under the
Guidelines as interchangeable. United States v. Hall, 877 F.3d 800, 806 (8th Cir.
2017). The district court thus did not err in its ruling. See Owsley v. Luebbers, 281
F.3d 687, 690 (8th Cir. 2002) (per curiam) (“It is a cardinal rule in our circuit that one
panel is bound by the decision of a prior panel.”).
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
2
Effective January 1, 2017, Missouri amended its second-degree robbery statute
to require “physical injury to another person.” Mo. Rev. Stat. § 570.025.1. This
opinion addresses only the second-degree robbery statute in effect when Collins was
convicted in 2010.
3
See also United States v. Wilkins, No. 16-4026, slip op., 2018 WL 1750611,
— F. App’x — (8th Cir. Apr. 12, 2018); Diemer v. United States, No. 16-3403, slip
op., 2018 WL 1617840, — F. App’x — (8th Cir. Apr. 4, 2018); Robinett v. United
States, 886 F.3d 689 (8th Cir. 2018).
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Collins next argues that the district court erred when it applied a three-level
sentencing enhancement “for multiple prior sentences.” Under Guidelines
§ 4A1.2(a)(1), a prior sentence is “any sentence previously imposed upon
adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for
conduct not part of the instant offense.” If two prior sentences were imposed on the
same day, however, the sentences are not counted separately unless there was an
“intervening arrest” between the first and second offense. U.S.S.G. § 4A1.2(a)(2).
Collins argues that his prior convictions in Jackson County, Missouri, case numbers
0716-CR-02971-01 and 0916-CR-04728-01, should not have been counted separately
because the state court imposed sentences for both offenses on the same day. The
district court ruled, however, that an intervening arrest occurred between the two
incidents. This finding is not clearly erroneous. See United States v. Paden, 330 F.3d
1066, 1067 (8th Cir. 2003) (standard of review).
The judgment is affirmed.
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