United States v. Preston Phillips ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3816
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Preston C. Phillips
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 11, 2019
Filed: April 16, 2019
[Unpublished]
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Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.
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PER CURIAM.
Preston C. Phillips pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district court1 sentenced him as
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
an armed career criminal to 200 months’ imprisonment. Phillips appealed the ACCA
designation. This court affirmed. See United States v. Phillips, 817 F.3d 567, 570
(8th Cir. 2016). The Supreme Court vacated the judgment and remanded “for further
consideration in light of Mathis v. United States,” 136 S. Ct. 2243 (2016). See
Phillips v. United States, 137 S. Ct. 634, 634 (2017). This court vacated the sentence
and remanded to the district court “to determine whether Phillips’ second-degree
burglary convictions” were violent felonies. United States v. Phillips, 853 F.3d 432,
436 (8th Cir. 2017).
On remand, the district court ruled the burglary convictions were not violent
felonies. But the court still concluded Phillips had three or more violent felony
convictions (Missouri second-degree domestic assault, Missouri second-degree
assault, Missouri unlawful use of a weapon, and Minnesota second-degree assault).
It again sentenced him to 200 months’ imprisonment. He appeals. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
The Armed Career Criminal Act enhances sentences for defendants who
possess firearms after three convictions “for a violent felony or a serious drug
offense.” 18 U.S.C. § 924(e)(1). The term “violent felony” is defined, in part, as a
crime “punishable by imprisonment for a term exceeding one year” that “has as an
element the use, attempted use, or threatened use of physical force against the person
of another.” 18 U.S.C. § 924(e)(2)(B)(i). The district court ruled Phillips had at least
three previous violent felonies. This court reviews that ruling de novo. See United
States v. Garcia-Longoria, 819 F.3d 1063, 1065 (8th Cir. 2016).
Phillips pled guilty to Missouri second-degree assault by “attempt[ing] to cause
physical injury to” the victim “by means of dangerous instrument.” § 565.060.1(2)
RSMo. Phillips concedes this court has held that a conviction under §565.060.1(2)
is a violent felony. See United States v. Alexander, 809 F.3d 1029, 1032-1033 (8th
Cir. 2016) (“[A]n attempted second-degree assault under Mo. Rev. Stat. §
-2-
565.060(1)(2) constitutes an attempted use . . . of physical force under §
924(e)(2)(B)(i)” (internal quotation marks omitted)). Despite Phillips’ contention that
Alexander was wrongly decided, this court is bound by it. See United States v. Eason,
829 F.3d 633, 641 (8th Cir. 2016) (“It is a cardinal rule in our circuit that one panel
is bound by the decision of a prior panel.”).
Phillips also has convictions for Missouri unlawful use of a weapon (Mo. Rev.
Stat. § 571.030.1(4)) and Minnesota second-degree assault (Minn. Stat. Ann. §
609.222). As he concedes, this court has held that convictions under these statutes are
violent felonies. See United States v. Swopes, 892 F.3d 961, 962 (8th Cir. 2018)
(holding that the “conviction for unlawful use of a weapon in Missouri” under §
571.030.1(4) RSMo “was a conviction for a violent felony under § 924(e)”); United
States v. Hudson, 851 F.3d 807, 810 (8th Cir. 2017) (same); United States v. Lindsey,
827 F.3d 733, 740 (8th Cir. 2016) (“[W]e hold that second-degree assault under Minn.
Stat. § 609.222 requires the use, attempted use, or threatened use of physical force
against another and therefore qualifies as a violent felony for ACCA purposes.”).
Although he believes these cases also were wrongly decided, this court is bound by
them. See Eason, 829 F.3d at 641.
The district court did not err in sentencing Phillips as an armed career criminal
based on his convictions for Missouri second-degree assault, Missouri unlawful use
of a weapon, and Minnesota second-degree assault.2
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The judgment is affirmed.
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2
Phillips argues that his convictions for Missouri second-degree domestic
assault are not violent felonies. But see Phillips, 853 F.3d at 434. Because Phillips
has three convictions for crimes of violence without the domestic assault convictions,
this court does not consider this argument.
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