                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 18-2696
                       ___________________________

                            United States of America,

                       lllllllllllllllllllllPlaintiff - Appellee,

                                          v.

 Anthony Dunlap, also known as Anthony Carl Dunlap, also known as Anthony
                             Carlton Dunlap,

                     lllllllllllllllllllllDefendant - Appellant.
                                     ____________

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

                            Submitted: May 14, 2019
                             Filed: August 29, 2019
                                 ____________

Before COLLOTON, BEAM, and SHEPHERD, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

     Anthony Dunlap pleaded guilty to one count of bank robbery and one count of
unlawful possession of a firearm as a previously convicted felon. See 18 U.S.C.
§§ 2113(a), 922(g)(1). At sentencing, the district court1 determined that Dunlap’s
five prior convictions for Missouri second-degree robbery constituted “violent
felonies” under the Armed Career Criminal Act (ACCA), in light of United States v.
Swopes, 886 F.3d 668 (8th Cir. 2018) (en banc). Because three prior convictions for
a violent felony qualify a firearms offender as an armed career criminal, the court
imposed an enhanced sentence of 216 months’ imprisonment under the ACCA, 18
U.S.C. § 924(e).

       On appeal, Dunlap contends that the district court violated his rights under the
Due Process Clause of the Fifth Amendment by retroactively increasing the severity
of his punishment based on an “unforeseeable” judicial decision in Swopes that was
filed after the commission of his firearms offense. We conclude that the en banc
decision in Swopes was not so unexpected as to raise due process concerns, so we
affirm.

       On January 3, 2017, Dunlap robbed a branch of Bank of America in
Springfield, Missouri, and escaped with approximately $3,910 in cash. Later that
day, Springfield police located Dunlap at a friend’s home, where they recovered the
stolen money and a loaded pistol. A grand jury charged Dunlap with bank robbery
and possession of a firearm as a previously convicted felon. See id. §§ 2113(a),
922(g)(1).

       Dunlap pleaded guilty to both offenses in November 2017, and the district
court scheduled sentencing for March 8, 2018. At that time, Dunlap would not have
qualified as an armed career criminal under the prevailing law of this circuit. A panel
of this court in United States v. Bell, 840 F.3d 963 (8th Cir. 2016), held that Missouri
second-degree robbery was not a “crime of violence” under the sentencing guidelines,


      1
      The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.

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id. at 969, and Bell dictated that the robbery offense was not a “violent felony” under
the ACCA either. United States v. Swopes, 850 F.3d 979, 980-81 (8th Cir. 2017) (per
curiam). Based on that state of the law, the probation office recommended an
advisory guideline range for Dunlap of 51 to 63 months’ imprisonment.

       By mid-June 2017, however, this court had granted rehearing en banc in
Swopes to consider anew whether Missouri second-degree robbery was a violent
felony under the ACCA. The case was submitted in September 2017, and the
government moved to continue Dunlap’s sentencing until the en banc decision was
filed. On March 29, 2018, this court overruled Bell and held that Missouri second-
degree robbery is a violent felony. Swopes, 886 F.3d at 670. The district court then
sentenced Dunlap as an armed career criminal with an advisory guideline range of
188 to 235 months’ imprisonment. The Court imposed a total term of 216 months’
imprisonment.

       On appeal, Dunlap argues that the district court deprived him of due process
under the Fifth Amendment by increasing the punishment for his firearms offense,
after it was completed, based on an “unforeseeable judicial interpretation” of the
ACCA. We review Dunlap’s constitutional challenge to his sentence de novo.
United States v. Scott, 831 F.3d 1027, 1033 (8th Cir. 2016).

       The Ex Post Facto Clause of the Constitution does not apply to judicial
decisions, but “limitations on ex post facto judicial decisionmaking are inherent in the
notion of due process.” Rogers v. Tennessee, 532 U.S. 451, 456 (2001). The Due
Process Clause does not incorporate all the protections of the Ex Post Facto Clause
“jot-for-jot,” id. at 459, but when it comes to defining a criminal offense, the Fifth
Amendment bars at least the “unforeseeable and retroactive judicial expansion of
statutory language that appears narrow and precise on its face.” Id. at 457. If a
judicial decision is “unexpected and indefensible by reference to the law which had



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been expressed prior to the conduct in issue,” that construction cannot be applied
retroactively. Id. (internal quotation omitted).

       It is an open question whether the Due Process Clause also forbids retroactive
judicial expansion of criminal punishments, as opposed to criminal liability. See
United States v. Beals, 698 F.3d 248, 272-73 (6th Cir. 2012); Magwood v. Warden,
Ala. Dep’t of Corr., 664 F.3d 1340, 1347-48 (11th Cir. 2011). But assuming without
deciding that the Fifth Amendment precludes certain retroactive increases in
punishment occasioned by judicial decision, we conclude that our en banc ruling in
Swopes was not “unexpected and indefensible.” Rogers, 532 U.S. at 457 (internal
quotation omitted).

       Bell was this court’s first decision after Johnson v. United States, 559 U.S. 133
(2010), to address whether Missouri second-degree robbery was a “crime of violence”
under the sentencing guidelines. The issue, as relevant here, was whether the robbery
offense “has as an element the use, attempted use, or threatened use of physical
force.” USSG § 4B1.2(a)(1). The ACCA includes an identical “force” clause, 18
U.S.C. § 924(e)(2)(B)(i), and Johnson explained that “physical force” in the statute
means “violent force,” not “the slightest offensive touching” that constituted the
“force” element of common-law battery. 559 U.S. at 138-40.

       A divided panel in Bell concluded that Missouri second-degree robbery did not
qualify as a “crime of violence” under the force clause of the guidelines, because the
offense did not necessarily involve the level of force required by Johnson. 840 F.3d
at 966-67. But a decision of a three-judge panel of a court of appeals is not the end
of the line in the federal judicial system. There is a hierarchy that allows for en banc
consideration of three-judge panel decisions and Supreme Court review of the courts
of appeals. We were “strongly inclined” in Hagan v. Caspari, 50 F.3d 542 (8th Cir.
1995), to say that until a State’s highest court has spoken on a particular point of state
law, “the law of the state necessarily must be regarded as unsettled,” id. at 547, and

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the same could be said of the federal system. The Due Process Clause bars
retroactive application of “unpredictable shifts in the law, not . . . the resolution of
uncertainty that marks any evolving legal system.” United States v. Burnom, 27 F.3d
283, 284-85 (7th Cir. 1994).

       Dunlap submits that the absence of en banc review in Bell deprived him of fair
notice by suggesting that the status of Missouri second-degree robbery was settled.
To accept that position, however, would be to endorse an unreasonable understanding
of the system. En banc review, like the Supreme Court’s certiorari jurisdiction, is
discretionary. That an en banc court does not review an issue at the first opportunity
does not imply that the full court endorses the decision of a three-judge panel. There
was even more reason than usual to be cautious in this case: Bell involved the
sentencing guidelines, not the ACCA, and the government did not even petition for
rehearing en banc. Other circuits were likely to weigh in on the issue when
confronting comparable state statutes, and it was predictable that the Supreme Court
ultimately would address the topic. See Stokeling v. United States, 139 S. Ct. 544
(2019).

      We need not resolve whether there might be some scenario involving the
displacement of entrenched and venerable circuit precedent that could support a due
process claim. In these circumstances, we think it plain that the Bell decision in 2016
did not justify an expectation that the meaning of the ACCA was definitively settled,
and that the Swopes en banc decision was not “unexpected and indefensible” by
reference to the law expressed before Dunlap committed his firearms offense in
January 2017.

      The judgment of the district court is affirmed.
                     ______________________________




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