                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-1697
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Marvance J. Robinson

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

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

                            Submitted: March 18, 2016
                               Filed: June 21, 2016
                                 ____________

Before WOLLMAN, ARNOLD, and SHEPHERD, Circuit Judges.
                         ____________

ARNOLD, Circuit Judge.

      Following his conviction for being a felon in possession of a firearm, see 18
U.S.C. §§ 922(g)(1) and 924(a)(2), Marvance Robinson appealed his 75-month
sentence, maintaining that the district court erred in holding that two of his prior
felony convictions were for crimes of violence and increasing his sentence
accordingly. See U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2(a). Robinson did not challenge
this enhancement in the district court. After he was sentenced, the Supreme Court
held in Johnson v. United States, 135 S. Ct. 2551, 2557 (2015), that the so-called
"residual clause" in the Armed Career Criminal Act, which defined a "violent felony"
to include one that "involves conduct that presents a serious potential risk of physical
injury to another," 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. The
Guidelines's definition of crime of violence contains an identically worded residual
clause, see U.S.S.G. § 4B1.2(a)(2), which Robinson now argues is likewise
unconstitutional. Both the ACCA definition of "violent felony" and the Guidelines's
definition of "crime of violence" also include a "force clause" that sweeps in crimes
that have "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); U.S.S.G. § 4B1.2(a)(1).
Johnson did not invalidate the ACCA's force clause, Johnson, 135 S. Ct. at 2563, but
Robinson also maintains that his prior convictions did not qualify him for a
sentencing increase under the force clause.

       Because Robinson did not object to the district court's crimes-of-violence
determination or the resulting increase in offense level, we review for plain error. To
obtain relief, Robinson must show that the district court committed a plain error that
affected his substantial rights and seriously affected the fairness, integrity, or public
reputation of judicial proceedings. United States v. Davis, 538 F.3d 914, 917 (8th Cir.
2008).

       After reviewing the record, we cannot tell whether the district court relied on
the residual clause or the force clause to determine that Robinson's prior offenses
were crimes of violence. If it used the residual clause, our precedent would foreclose
Robinson's argument because we have held that a district court does not commit plain
error in holding that a defendant's prior felonies constitute crimes of violence under
the Guidelines's residual clause. United States v. Ellis, 815 F.3d 419, 421 (8th Cir.
2016). We reasoned that any error would not be "obvious" or "plain" because the



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susceptibility of the Guidelines to constitutional vagueness challenges is an open
question in this circuit. Id. at 421–22.

        But both parties here assert that it would have been error if the district court
enhanced Robinson's sentence under the force clause to the extent it did because the
statute underlying Robinson's conviction for resisting arrest by fleeing, see Mo. Rev.
Stat. § 575.150.5, does not require that a defendant use force or the threat of force for
conviction. We agree. We recently explained that a conviction for fleeing under this
very statute would not constitute a violent felony under the ACCA's force clause,
United States v. Shockley, 816 F.3d 1058, 1063 (8th Cir. 2016), and "we generally
treat the term 'crime of violence' under § 4B1.2(a) of the advisory guidelines the same
as the term 'violent felony' under the ACCA." United States v. Williams, 627 F.3d
324, 327 n.1 (8th Cir. 2010). The Supreme Court has likewise concluded that a
similar conviction in Indiana for vehicular flight does not qualify as a violent felony
under the force clause. See Sykes v. United States, 564 U.S. 1, 8 (2011), overruled on
other grounds by Johnson, 135 S. Ct. at 2563. Based on these precedents and a simple
reading of the relevant statute, any error in concluding that Robinson's conviction for
resisting arrest by fleeing was a crime of violence under the force clause would be
plain.

       We conclude, moreover, that Robinson would be entitled to plain-error relief
if he was sentenced under the force clause. The Supreme Court recently held that
"[w]hen a defendant is sentenced under an incorrect Guidelines range—whether or
not the defendant's ultimate sentence falls within the correct range—the error itself
can, and most often will, be sufficient to show a reasonable probability of a different
outcome absent the error." Molina-Martinez v. United States, 136 S. Ct. 1338, 1345
(2016). A reasonable probability of a different outcome is sufficient to show that the
error would affect Robinson's substantial rights. Id. at 1349. In Molina-Martinez, the
Court decided that a defendant's substantial rights were affected when the district
court sentenced him under an incorrect Guidelines range, even though the sentence

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he received fell within both the correct and incorrect ranges. Id. at 1345. Robinson's
circumstances make out an even better case for relief because the Guidelines range
he was sentenced under was 70–87 months' imprisonment, and he received a sentence
of 75 months; without the conviction for resisting arrest counting as a crime of
violence, Robinson's range would have been 46–57 months. Finally, because a
reasonable probability exists that absent the error Robinson would have received a
shorter sentence, we conclude that the error would seriously affect the fairness,
integrity, or public reputation of judicial proceedings. See United States v. Nahia, 437
F.3d 715, 717 (8th Cir. 2006). Robinson has therefore established all the requisites
for plain-error relief if his sentence was based on the force clause.

       Although Robinson could not prevail on this appeal if the district court
sentenced him under the Guidelines's residual clause, he could if the district court
sentenced him under the force clause. Since the record does not reveal which
provision guided the court's decision, it seems to us that the better course is to remand
for resentencing and allow the district court to clarify its reasoning and make a
reviewable record. If necessary, depending on what course the district court takes in
resentencing, it may have to determine whether the other crime that it used to increase
Robinson's sentence, a conviction for robbery, qualifies him for an enhancement.

      Remanded.
                        ______________________________




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