                  United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-2672
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Joshua D. Preston

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                             Submitted: March 6, 2017
                              Filed: March 28, 2017
                                  [Unpublished]
                                  ____________

Before RILEY,1 GRUENDER and KELLY, Circuit Judges.
                           ____________

PER CURIAM.




      1
       The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
       Joshua D. Preston pleaded guilty to one count of felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The district court concluded, over
Preston’s objection, that Preston was subject to an increased base offense level and
additional criminal history points because Preston had previously been convicted of
crimes of violence as defined under USSG § 4B1.2’s force clause.2 Accordingly, the
court found that Preston’s advisory Guideline range was 46 to 57 months, and
sentenced Preston to a 46-month term of imprisonment followed by a three-year term
of supervised release. Preston appeals, arguing that the district court erred in
calculating his advisory Guideline range because his prior convictions for Texas
second-degree robbery pursuant to Texas Penal Code Ann. § 29.02 are not crimes of
violence as that term is defined in USSG § 4B1.2(a). “A failure to properly calculate
the advisory Guidelines range is a significant procedural error, and ‘[a] non-harmless
error in calculating the guidelines range requires a remand for resentencing.’” United
States v. Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008) (alteration in original) (quoting
United States v. Vickers, 528 F.3d 1116, 1120 (8th Cir. 2008)). We review the
district court’s findings of fact for clear error and its interpretation of the Guidelines
de novo. Id.

       To determine whether a conviction constitutes a crime of violence, the court
must first determine whether the statute defining the crime is indivisible, meaning it
lists only one set of elements, or divisible, meaning it lists “multiple, alternative
versions of the crime.” Descamps v. United States, 133 S. Ct. 2276, 2283–84 (2013).
Preston’s criminal history includes three convictions for Texas second-degree
robbery. In Texas, a person commits robbery when, in the course of a theft “and with
intent to obtain or maintain control of the property, he: (1) intentionally, knowingly,

      2
       The parties agree that the district court addressed Preston’s prior convictions
under the force clause rather than the residual clause. See United States v. Boose,
739 F.3d 1185, 1186 (8th Cir. 2014) (“We sometimes refer to [USSG § 4B1.2(a)]
subparagraph (1) as the ‘force’ clause [and USSG § 4B1.2(a)] subparagraph (2) as the
‘residual,’ or ‘otherwise’ clause.” (internal citations omitted)).

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or recklessly causes bodily injury to another; or (2) intentionally or knowingly
threatens or places another in fear of imminent bodily injury or death.” Tex. Penal
Code Ann. § 29.02(a). The parties agree that § 29.02 is divisible. To determine
whether a conviction under a divisible statute is a crime of violence, courts apply the
modified categorical approach. See Descamps, 133 S. Ct. at 2283–84.

       The modified categorical approach allows the court to look “to a limited class
of documents (for example, the indictment, jury instructions, or plea agreement and
colloquy) to determine what crime, with what elements, a defendant was convicted
of.” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). At Preston’s sentencing
hearing, the government entered into evidence the Texas state court indictments,
written plea admonishments, and judgments of plea of guilty for Preston’s prior
robbery convictions. Each of Preston’s prior robbery convictions stemmed from an
indictment that originally charged Preston with aggravated robbery, a first-degree
felony, which requires that a person “uses or exhibits a deadly weapon” in the course
of committing a robbery. Tex. Penal Code Ann. § 29.03(a)(2). After receiving the
state court documents into evidence, the district court found that “Mr. Preston did
admit to knowingly and intentionally placing others in fear of imminent bodily harm
or death by exhibiting a deadly weapon.” It held that, “as a consequence, those cases
do qualify as supported by the exhibits presented by the government for the violent
felony enhancement as applied in the sentencing guidelines.”

       Even if the acts underlying Preston’s convictions did, as a factual matter,
involve the use of a deadly weapon sufficient to support a conviction for aggravated
robbery as originally charged, Preston pleaded guilty to second-degree robbery—a
different and lesser crime. See Young v. State, 428 S.W.3d 172, 176 (Tex. Ct. App.
2014) (explaining that robbery is a lesser included offense of aggravated robbery).
The modified categorical approach does not allow the court to “consider what the
defendant’s actual conduct might have been.” Boose, 739 F.3d at 1188 (quoting
United States v. Roblero–Ramirez, 716 F.3d 1122, 1125 (8th Cir. 2013)); see also

                                         -3-
Mathis, 136 S. Ct. at 2251–52 (collecting cases). Instead, “the sole permissible
purpose of the modified categorical approach is ‘to determine which statutory phrase
was the basis for the conviction.’” United States v. Martinez, 756 F.3d 1092, 1097
(8th Cir. 2014) (quoting Johnson v. United States, 559 U.S. 133, 144 (2010)). “To
look beyond” the fact of conviction to the specific actions underlying Preston’s prior
robberies exceeded the limited purpose of the modified categorical approach and
“deprive[d Preston] of the benefits of [his] negotiated plea deal[].” Id. (all but first
alteration in original) (quoting Descamps, 133 S. Ct. at 2289).

       Because the district court erred by examining the factual underpinnings of
Preston’s conviction for a purpose beyond determining which of § 29.02’s alternative
elements formed the basis of Preston’s conviction, we remand for resentencing. On
remand, the question before the district court is twofold: first, the court should apply
the modified categorical approach to determine which alternative element of § 29.02
was the basis for Preston’s conviction. See id. (“A district court may ‘consult[] the
indictment to which [the defendant] pleaded guilty in order to determine whether his
conviction did entail the elements necessary to’ qualify for a sentencing
enhancement.” (alterations in original) (quoting United States v. Castleman, 134 S.
Ct. 1405, 1414 (2014))). Second, the district court should consider whether a
conviction under that alternative is categorically a crime of violence. Descamps, 133
S. Ct. at 2285. We express no opinion as to whether Preston’s prior convictions
constitute crimes of violence under the residual clause of USSG § 4B1.2(a)(2). See
Beckles v. United States, — S. Ct. —, 2017 WL 855781, at *5–6 (2017) (holding that
the “residual clause in [USSG] § 4B1.2(a)(2) . . . is not void for vagueness”).
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