                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1337
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                   Steven S. Cowan

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                           Submitted: September 18, 2012
                              Filed: October 12, 2012
                                  ____________

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

GRUENDER, Circuit Judge.

       Steven Cowan pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court1 found that Cowan qualified for
an enhanced base offense level under United States Sentencing Guidelines


      1
      The Honorable David Gregory Kays, United States District Judge for the
Western District of Missouri.
§ 2K2.1(a)(2) based on two previous felony convictions that were crimes of violence
under § 4B1.2(a)(2) and sentenced him to 85 months’ imprisonment. In this appeal,
Cowan’s sole argument is that the residual clause in § 4B1.2(a)(2) is
unconstitutionally vague. For the reasons discussed below, we affirm.

       On December 2, 2010, officers from the Butler, Missouri Police Department
learned that Cowan had contacted a confidential informant (“CI”) to inquire if the CI
was interested in purchasing a .380-caliber handgun. The CI made two recorded
phone calls to Cowan to arrange the purchase of the gun. Police provided the CI with
$200 of identifiable currency, equipped the CI with a recording device, and sent the
CI to Cowan’s home to purchase the gun. After the purchase, officers saw Cowan
leave his home, and they arrested him during a traffic stop. The officers found in
Cowan’s pocket the currency that the CI had been given to purchase the gun. Further
investigation revealed that Cowan had prior felony convictions and that the gun had
been transported in interstate commerce.

      Cowan pled guilty to being a felon in possession of a firearm on July 7, 2011,
pursuant to a written plea agreement. The parties agreed that 18 U.S.C. § 924(e)(1),
the Armed Career Criminal Act (“ACCA”), did not apply and that the statutory
maximum punishment was 10 years’ imprisonment. The parties, however, did not
agree on a sentencing guidelines base offense level.

      At sentencing, the parties disputed whether Cowan’s Missouri conviction for
attempted escape from custody should be considered a crime of violence within the
meaning of § 4B1.2. The district court agreed with the Government and applied a
base offense level of 24 pursuant to § 2K2.1(a)(2), ultimately resulting in an advisory
guidelines range of 70-87 months’ imprisonment. The court sentenced Cowan to 85
months in custody, followed by three years of supervised release.




                                         -2-
       On appeal, Cowan for the first time raises the argument that the residual clause
in § 4B1.2, which states that a crime of violence is one that “otherwise involves
conduct that presents a serious potential risk of physical injury to another,” is
unconstitutionally vague. Because Cowan did not raise this argument before the
district court, we review for plain error. See United States v. Pirani, 406 F.3d 543,
550 (8th Cir. 2005) (en banc).

      Before an appellate court can correct an error not raised at trial, there
      must be (1) error, (2) that is plain, and (3) that affects substantial rights.
      If all three conditions are met, an appellate court may then exercise its
      discretion to notice a forfeited error, but only if (4) the error seriously
      affects the fairness, integrity, or public reputation of judicial
      proceedings.

Pirani, 406 F.3d at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-
67 (1997)).

        The district court here committed no error, much less plain error, because the
Supreme Court twice has rejected arguments that a nearly identically worded residual
clause in the ACCA was unconstitutionally vague. While Cowan relies on several
dissenting opinions that contend that the ACCA’s residual clause is unconstitutionally
vague, see Derby v. United States, 564 U.S. ---, 131 S. Ct. 2858, 2858 (2011) (Scalia,
J., dissenting from denial of certiorari); Sykes v. United States, 564 U.S. ---, 131 S.
Ct. 2267, 2284 (2011) (Scalia, J., dissenting); James v. United States, 550 U.S. 192,
227-28 (2007) (Scalia, J., dissenting), the Supreme Court has rejected this argument.
In James, for example, the Court expressly considered the argument that the Court’s
decision “leav[es] up in the air for judicial determination how much risk of physical
injury each crime presents” and “leaves the lower courts and those subject to the law
to sail upon a sea of doubt.” 550 U.S. at 228. In rejecting the vagueness argument,
the Court explained:



                                           -3-
      While ACCA requires judges to make sometimes difficult evaluations
      of the risks posed by different offenses, we are not persuaded by Justice
      SCALIA’s suggestion . . . that the residual provision is
      unconstitutionally vague. The statutory requirement that an
      unenumerated crime “otherwise involv[e] conduct that presents a serious
      potential risk of physical injury to another” is not so indefinite as to
      prevent an ordinary person from understanding what conduct it
      prohibits.

Id. at 210 n.6 (alteration in original) (internal citation omitted); accord Sykes, 564
U.S. ---, 131 S. Ct. at 2277 (“Although this approach may at times be more difficult
for courts to implement, it is within congressional power to enact.” (citing James, 550
U.S. at 210 n.6)); see also United States v. Childs, 403 F.3d 970, 972 (8th Cir. 2005)
(“In addition, [defendant] argues that § 924(e) is unconstitutionally vague. We agree
with every other circuit that has considered this argument and hold that it has no
merit.” (citing United States v. Presley, 52 F.3d 64, 68 (4th Cir. 1995); United States
v. Sorenson, 914 F.2d 173, 175 (9th Cir. 1990))).

       As we have explained, the “definition of a predicate ‘crime of violence’ [in
§ 4B1.2] closely tracks ACCA’s definition of ‘violent felony.’” United States v.
Vincent, 575 F.3d 820, 826 (8th Cir. 2009). As a result, “[a]lthough we have
observed that the guideline and the statute may not always be interpreted in the same
way, the cases interpreting § 924(e)(2)(B) can be instructive with respect to
§ 4B1.2(a), given the similar structure and wording of the two provisions.” United
States v. Vinton, 631 F.3d 476, 484 (8th Cir. 2011) (internal citations omitted). In
fact, the residual clauses of the two provisions are identical. See 18 U.S.C.
§ 924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a)(2). Thus, based on Supreme Court precedent




                                         -4-
in James and Sykes, we conclude that Cowan’s argument that § 4B1.2 is
unconstitutionally vague necessarily fails.2

      For the reasons stated above, we affirm.
                   ______________________________




      2
       Cowan does not argue on appeal that his Missouri conviction for escape from
custody is not a crime of violence under § 4B1.2, so that argument is waived. See
United States v. Rees, 447 F.3d 1128, 1130 (8th Cir. 2006). Nor does he challenge
the substantive reasonableness of his sentence, so we need not address the issue here.
See United States v. Hagen, 641 F.3d 268, 272 n.2 (8th Cir. 2011).


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