                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1797
                        ___________________________

                             United States of America,

                        lllllllllllllllllllllPlaintiff - Appellee,

                                           v.

                               Hosea Latron Swopes,

                      lllllllllllllllllllllDefendant - Appellant.
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                         Submitted: September 19, 2017
                             Filed: March 29, 2018
                                 ____________

Before SMITH, Chief Judge, WOLLMAN, LOKEN, MELLOY, COLLOTON,
GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc.1
                            ____________

COLLOTON, Circuit Judge.

      This appeal presents the question whether Hosea Swopes’s prior conviction for
second-degree robbery in Missouri is a “violent felony” under the Armed Career

      1
       Judge Erickson, Judge Grasz, and Judge Stras did not participate in the
consideration or decision of this matter.
Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We conclude that the district court2
properly classified Swopes’s robbery conviction as a violent felony, and we overrule
the panel decision to the contrary in United States v. Bell, 840 F.3d 963 (8th Cir.
2016).

                                          I.

       Hosea Swopes pleaded guilty to unlawful possession of a firearm as a
previously convicted felon, in violation of 18 U.S.C. § 922(g). The district court
concluded that Swopes was subject to an enhanced sentence under the ACCA. The
ACCA establishes a minimum term of fifteen years’ imprisonment for unlawful
possession of a firearm by a previously convicted felon who has sustained three prior
convictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e). The
district court cited Swopes’s prior Missouri convictions for unlawful use of a weapon,
second-degree robbery, and first-degree robbery as three violent felonies.

       Swopes argued in his opening brief on appeal that unlawful use of a weapon,
in violation of Mo. Rev. Stat. § 571.030.1(4), is not a violent felony. After the case
was submitted, Swopes filed a supplemental brief to argue, based on the intervening
circuit precedent of Bell, that second-degree robbery, in violation of Mo. Rev. Stat.
§ 569.030.1 (1979), also does not qualify. The panel concluded that Bell was
controlling and vacated Swopes’s sentence on the ground that second-degree robbery
was not a violent felony under circuit precedent. The government then petitioned for
rehearing en banc and urged the court to reconsider Bell. The court granted the
petition and vacated the panel decision.




      2
       The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.

                                         -2-
                                          II.

       Swopes was convicted in 1994 of second-degree robbery under Mo. Rev. Stat.
§ 569.030.1 (1979). Under that statute, a person commits second-degree robbery
“when he forcibly steals property.” Id. A person “forcibly steals” when, in the course
of stealing:

      he uses or threatens the immediate use of physical force upon another
      person for the purpose of: (a) Preventing or overcoming resistance to
      the taking of the property or to the retention thereof immediately after
      the taking; or (b) Compelling the owner of such property or another
      person to deliver up the property or to engage in other conduct which
      aids in the commission of the theft[.]

Mo. Rev. Stat. § 569.010(1) (1979).3

       The ACCA defines “violent felony” to include an offense 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). “[P]hysical force” means “force capable
of causing physical pain or injury to another person.” Johnson v. United States, 559
U.S. 133, 140 (2010). Under the categorical approach that governs analysis of the
ACCA, we focus on the elements of the state statute and consider whether a violation
necessarily satisfies the federal definition of violent felony. Mathis v. United States,
136 S. Ct. 2243, 2248 (2016). Therefore, Swopes’s conviction for second-degree
robbery is a conviction for a “violent felony” only if a conviction under Mo. Rev.
Stat. § 569.030.1 (1979) requires the use, attempted use, or threatened use of such
force.

      3
       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 Swopes was
convicted in 1994.

                                          -3-
       Missouri second-degree robbery has as an element the use of physical force
upon another person or the threat of an immediate use of such force. Mo. Rev. Stat.
§ 569.010(1) (1979). In Bell, however, a panel of this court determined that Missouri
second-degree robbery was not a “crime of violence” under the United States
Sentencing Guidelines, which encompasses an offense punishable by a year in prison
that “has as an element the use, attempted use, or threatened use of physical force
against the person of another.” USSG § 4B1.2(a). See 840 F.3d at 966-67. The
panel rested its holding on State v. Lewis, 466 S.W.3d 629 (Mo. Ct. App. 2015),
where a Missouri court upheld a conviction for second-degree robbery when the
defendant snatched a victim’s purse after a “slight” struggle. Id. at 631. Bell placed
particular emphasis on the following dicta from Lewis:

      In sum, where there was no physical contact, no struggle, and no injury,
      [Missouri] courts have found the evidence insufficient to support a
      [second-degree] robbery conviction. But where one or more of those
      circumstances is present, a jury reasonably could find a use of force.

Id. at 632 (citation omitted). Bell interpreted Lewis to mean that a defendant in
Missouri “can be convicted of second-degree robbery when he has physical contact
with a victim but does not necessarily cause physical pain or injury.” 840 F.3d at
966. On that basis, the court reasoned that “there is at least a ‘reasonable probability’
Missouri could apply its statute (or already has) to conduct falling short of violent
force.” Id.

       In applying the categorical approach under the ACCA, we examine both the
text of the statute and how the state courts have applied the statute. Before we
conclude that a state statute sweeps more broadly than the federal definition of violent
felony, “there must be a ‘realistic probability, not a theoretical possibility,’” that the
statute encompasses conduct that does not involve use or threatened use of violent
force. Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (quoting Gonzales v. Duenas-


                                           -4-
Alvarez, 549 U.S. 183, 193 (2007)); see Fletcher v. United States, 858 F.3d 501, 507
(8th Cir. 2017).

       We now conclude that the Missouri second-degree robbery statute under which
Swopes was convicted requires the use or threatened use of violent force. The court
in Bell relied on “dicta from a single case to conclude that Missouri second-degree
robbery does not necessarily require force capable of causing physical pain or injury
to another person.” Bell, 840 F.3d at 969 (Gruender, J., dissenting). The offense in
Lewis itself, however, did involve the use of violent force: The court “upheld Lewis’s
second-degree robbery conviction when he bumped the victim from behind,
momentarily struggled with her, and then yanked the purse out of her hands.” Id.
(citing Lewis, 466 S.W.3d at 633). A blind-side bump, brief struggle, and yank—like
the “slap in the face” posited by Johnson, 559 U.S. at 143—involves a use of force
that is capable of inflicting pain. The holding of Lewis thus supports the view that
Missouri second-degree robbery requires the use or threatened use of violent force.

       Lewis is consistent with Missouri precedent holding that second-degree robbery
requires the use of “force capable of preventing or overcoming resistence.” Bell, 840
F.3d at 969-70 (Gruender, J., dissenting). In State v. Childs, 257 S.W.3d 655 (Mo.
Ct. App. 2008), for example, the court upheld a second-degree robbery conviction
when there was a “[t]ussle” between the defendant and the victim. Id. at 660. The
court emphasized that to “tussle” means to fight, struggle, contend, wrestle, or scuffle,
and distinguished “tussling” from “[t]he sudden taking or snatching of property.” Id.;
see also State v. Jolly, 820 S.W.2d 734, 736 (Mo. Ct. App. 1991) (upholding second-
degree robbery conviction after noting that the offense was no “mere purse snatching”
because it involved a struggle and victim’s fingernail was ripped off); State v.
Applewhite, 771 S.W.2d 865, 868 (Mo. Ct. App. 1989) (upholding second-degree
robbery conviction where defendant intentionally pushed a store manager out of his
way and knocked him against a door); State v. Butler, 719 S.W.2d 35, 37 (Mo. Ct.
App. 1986) (upholding second-degree robbery conviction where defendant grabbed

                                          -5-
a woman’s purse and injured her finger). By contrast, the court in State v. Tivis, 884
S.W.2d 28 (Mo. Ct. App. 1994), reversed a conviction for second-degree robbery
where the defendant merely “grabbed the [victim’s] purse by its strap, took it from her
shoulder and ran off,” id. at 29, because there was no use or threatened use of
physical force. Id. at 29-30; see also State v. Henderson, 310 S.W.3d 307, 309 (Mo.
Ct. App. 2010) (reversing a second-degree robbery conviction where defendant
merely “brushed” a clerk’s arm during the course of a theft).

       The text of the Missouri second-degree robbery statute at issue here requires
proof that a defendant used physical force or threatened the immediate use of physical
force. See Mo. Rev. Stat. §§ 569.030.1, 569.010(1) (1979). Missouri decisions
applying the statute show that physical force under the Missouri statute is the
equivalent of physical force within the meaning of the ACCA. Based on the data
available, we see no realistic probability that Missouri courts would apply the
Missouri statute to conduct that does not involve force that is capable of causing
physical pain or injury. We therefore conclude that the district court properly counted
Swopes’s conviction for Missouri second-degree robbery as a “violent felony” under
the ACCA.

                                          III.

      Swopes also argues that a second prior conviction considered by the district
court—for unlawful use of a weapon in violation of Mo. Rev. Stat.
§ 571.030.1(4)—does not qualify as a “violent felony.” The three-judge panel did not
pass on this question, and Swopes urges the en banc court to address it in the first
instance. We elect to return the case to the panel for resolution of this second issue.

       “It has long been the policy of this court that we do not consider issues en banc
that are not specifically raised in the suggestion for en banc consideration. Only in
the rarest of occasions, when justice requires, do we depart from this policy.” Brown

                                          -6-
v. Stites Concrete, Inc., 994 F.2d 553, 557 (8th Cir. 1993) (en banc). The
government’s petition for rehearing raised only whether second-degree robbery is a
violent felony, arguing that this question alone was one of “exceptional importance.”
Fed. R. App. P. 35(b)(1)(B). Having granted rehearing en banc to consider the matter
of second-degree robbery, we are not convinced to depart from our traditional
practice by considering a different issue that was not raised in the petition. In
returning the appeal to the panel, “we inject no additional layer into the judicial
process; we merely permit the normal second layer—a court of appeals panel—to
perform its customary role.” Asherman v. Meachum, 957 F.2d 978, 983 (2d Cir.
1992) (en banc). Any party dissatisfied with the panel’s decision will have an
opportunity to urge the full court that the question presented meets the standards
applicable for en banc determination.

                                     *       *       *

      For these reasons, we uphold the district court’s conclusion that second-degree
robbery in violation of Mo. Rev. Stat. § 569.030.1 (1979) is a “violent felony” under
the Armed Career Criminal Act, 18 U.S.C. § 924(e). We return the case to the
original three-judge panel to resolve the balance of the appeal.

KELLY, Circuit Judge, concurring in part and dissenting in part.

       I concur in Part III of the court’s opinion remanding the case to the panel to
determine whether unlawful use of a weapon under Mo. Rev. Stat. § 571.030.1(4)
qualifies as a “violent felony” under the ACCA. I respectfully dissent, however,
from the court’s decision to overrule United States v. Bell. My understanding of
Missouri case law leads me to conclude that “Missouri’s second-degree robbery
statute . . . does not necessarily require the use of violent force as one of its elements.”
840 F.3d at 967.



                                            -7-
        In short, my disagreement rests on a different understanding of what constitutes
a “realistic probability”—as opposed to a merely theoretical one—“that the State
would apply its statute to conduct” that constitutes something less than violent force.
See Moncrieffe, 569 U.S. at 191(quoting Duenas-Alvarez, 549 U.S. at 193); see also
Bell, 840 F.3d at 966. I do not dispute that the relevant language from Lewis
constitutes dicta, but I take that dicta to mean what it says. In Missouri, according to
Lewis: “[W]here there was no physical contact, no struggle, and no injury, courts
have found the evidence insufficient to support a [second-degree] robbery conviction.
But where one or more of those circumstances is present, a jury reasonably could find
a use of force.” 466 S.W.3d at 632 (citation omitted). The most natural reading of
this language is that “in Missouri a defendant can be convicted of second-degree
robbery when he has physical contact with a victim but does not necessarily cause
physical pain or injury.” Bell, 840 F.3d at 966. “[T]his is not the same as concluding
the force used by such a defendant is not capable of causing physical pain or injury,”
but it is sufficient to conclude there is a “reasonable probability” that Missouri would
apply the statute to conduct that does not amount to violent force. Id. (cleaned up).

       Furthermore, simply because a principle has been stated in dicta does not mean
that lower courts will not rely on it when assessing a sufficiency-of-the-evidence
argument; or that prosecutors will not rely on it when making charging decisions; or
that defendants and their attorneys will not rely on it when deciding whether to plead
guilty or go to trial. Because I believe that Lewis’s description of second-degree
burglary creates a realistic probability—albeit in dicta—that it will be applied to
conduct that does not involve the use or threatened use of violent force, I respectfully
dissent from the court’s opinion overruling Bell.
                        ______________________________




                                          -8-
