                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1723
                                   ___________

United States of America,           *
                                    *
          Plaintiff-Appellee,       *
                                    * Appeal from the United States
    v.                              * District Court for the
                                    * Western District of Missouri.
Raymond H. Hollis,                  *
                                    *   [PUBLISHED]
          Defendant-Appellant.      *
                               ___________

                             Submitted: March 16, 2006
                                Filed: May 12, 2006
                                 ___________

Before MELLOY, FAGG, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

       Raymond Hollis appeals his sixty-month prison sentence imposed by the
district court1 after he was convicted of being a felon in possession of a firearm.
Hollis argues the court erred when it concluded Hollis’s previous 1998 Missouri
felony conviction for resisting arrest was a “crime of violence” under United States
Sentencing Guidelines § 4B1.2(a). We affirm.




      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
       We consider de novo whether Hollis’s prior conviction is a crime of violence
under U.S.S.G. § 4B1.2(a). See United States v. McCall, 439 F.3d 967, 969 (8th Cir.
2006) (considering de novo whether a conviction for driving while intoxicated is a
“violent felony” under § 924(e)(2)(B) which uses a similar definition to that for
“crime of violence” in U.S.S.G. § 4B1.2(a)); United States v. Nation, 243 F.3d 467,
471 (8th Cir. 2001) (engaging in de novo review for interpretation and construction
of the Sentencing Guidelines). Having carefully reviewed the record, we agree with
the district court’s conclusion that resisting arrest is a crime of violence.

       The version of the Missouri statute under which Hollis was convicted states
that a person commits the crime of resisting arrest if:

      knowing that a law enforcement officer is making an arrest, or
      attempting to lawfully detain or stop an individual or vehicle, or the
      person reasonably should know that a law enforcement officer is making
      an arrest or attempting to lawfully detain or lawfully stop an individual
      or vehicle, for the purpose of preventing the officer from effecting the
      arrest, stop or detention, the person:
      (1) Resists the arrest, stop or detention of such person by using or
      threatening the use of violence or physical force or by fleeing from such
      officer; or
      (2) Interferes with the arrest, stop or detention of another person by
      using or threatening the use of violence, physical force or physical
      interference.


Mo. Rev. Stat. § 575.150 (1998) (amended in 2002 and 2005). Pursuant to U.S.S.G.
§ 4B1.2(a)(2), a crime of violence includes those criminal acts that “otherwise
involve[] conduct that presents a serious potential risk of physical injury to another.”


     Hollis argues that the specific conduct underlying his conviction does not
amount to a crime of violence. We need not examine Hollis’s conduct, however, if

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the elements of the crime for which he was convicted involve conduct that
“necessarily presents a serious potential risk of physical injury to another” and the
statute is not “over inclusive.” McCall, 439 F.3d at 971, 972-74 (considering the
identical “otherwise involves” provision used in § 924(e)(2)(B)). We believe that
resisting arrest, as defined by Missouri law, necessarily presents a serious potential
risk of physical injury to another. See United States v. Wardrick, 350 F.3d 446, 455
(4th Cir.), cert. denied, 541 U.S. 966 (2004) (“The act of resisting arrest poses a threat
of direct confrontation between a police officer and the subject of the arrest, creating
the potential for serious physical injury to the officer and others.”).

       The possibility of physical injury to another that occurs when one resists arrest
is similar to the potential for such injury in other crimes which this court has
categorized as “crimes of violence.” See, e.g., Nation, 243 F.3d at 472 (holding that
a “walkaway” escape is a crime of violence for the purposes of U.S.S.G. § 4B1.2).
Just as “even the most peaceful escape attempt cannot eliminate the potential for
violent conflict when the authorities attempt to recapture the escapee,” all incidents
of resisting arrest pose a serious potential risk of violence and, thus, physical injury
to another. Id.

        Hollis argues that resisting arrest, as defined by Mo. Rev. Stat. § 575.150, is
not necessarily a crime of violence because the statute encompasses “passive
resistance.” For this proposition he cites State v. Feagan, 835 S.W.2d 448, 450 (Mo.
Ct. App. 1992), where the defendant was convicted of resisting arrest after
threatening violence and “stiffening his arms” to resist being handcuffed. We do not
find such behavior to be “passive resistance.” In our opinion, one does not violate
the statute by engaging in traditional, non-violent acts of passive protest, such as a
“sit-in” or “lie-in.” Although these acts may violate other statutes and may result in
the physical removal of a protester by an officer, they do not necessarily constitute
the use of force against an officer. Refusing to aid in one’s own arrest by continuing
to lie on the ground or going limp is different than fleeing, pulling away, or otherwise

                                           -3-
using force to impede the arrest. We can find no Missouri opinion indicating a
passive protester has ever been convicted for resisting arrest in this manner.

     For the foregoing reasons we affirm the decision of the district court.
                     ______________________________




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