                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-1497
                        ___________________________

                             United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                              Ismael Miranda-Zarco

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                   Appeal from United States District Court
                 for the Eastern District of Missouri - St. Louis
                                 ____________

                           Submitted: January 11, 2016
                            Filed: September 6, 2016
                                 ____________

Before MURPHY, SMITH, and BENTON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

       Ismael Miranda-Zarco pled guilty to two conspiracies: to distribute
methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A); and to
commit money laundering in violation of 18 U.S.C. § 1956 (a)(1)(B)(i) and (h). He
appeals the addition of one criminal-history point under U.S.S.G. § 4A1.1. Having
jurisdiction under 28 U.S.C. § 1291, this court vacates the sentence and remands.
     In 2001, for the same act, Miranda-Zarco pled guilty to first-degree robbery and
armed criminal action (ACA). See § 569.020 RSMo (robbery in the first degree); §
571.015 RSMo (ACA). “According to court records” he, “acting with another,
forcibly stole U.S. currency in the possession of Pizza-Hut-DeSoto, and in the course
thereof defendant, acting with another, displayed what appeared to be a deadly
weapon.” He received 10 years in prison for the robbery, and a concurrent three years
for the ACA.

                                          I.

      The district court added three criminal-history points for the robbery conviction
under § 4A1.1(a), as authorized for a prior sentence of imprisonment exceeding one
year and one month. Guideline 4A.1.1(e) then says to “add 1 point for each prior
sentence resulting from a conviction of a crime of violence that did not receive any
points under (a), (b), or (c) above because such sentence was treated as a single
sentence . . . .” Accordingly, for the ACA conviction, the court added one point.
Miranda-Zarco objects to the ACA point, claiming because the ACA arose out of the
same conduct as the burglary, it cannot be counted separately.

      By state law, the ACA conviction is separate and distinct from the robbery
conviction. In Missouri, first-degree robbery occurs when a person

      forcibly steals property and in the course thereof he, or another
      participant in the crime,

      (1) Causes serious physical injury to any person; or
      (2) Is armed with a deadly weapon; or
      (3) Uses or threatens the immediate use of a dangerous instrument
      against any person; or
      (4) Displays or threatens the use of what appears to be a deadly weapon
      or dangerous instrument.


                                         -2-
§ 569.020 RSMo. An ACA violation occurs when a person commits any felony “by,
with, or through the use, assistance, or aid of a dangerous instrument or deadly
weapon . . . .” § 571.015 RSMo. An ACA punishment is “in addition to” the
punishment for the underlying felony. Id. The Supreme Court of Missouri has held
that robbery and armed criminal action “are not the same offense” for purposes of
multiple prosecution because “the expressed intent of the legislature” is to punish the
offenses cumulatively. State v. Flenoy, 968 S.W.2d 141, 144-45 (Mo. banc 1998),
citing Missouri v. Hunter, 459 U.S. 359, 367 (1983). The district court correctly
rejected Miranda-Zarco’s claim. See United States v. Watson, 650 F.3d 1084,
1091–92 (8th Cir. 2011) (affirming, under similar Oklahoma law, district court’s
application of one point under § 4A1.1(e)).

                                          II.

       Miranda-Zarco submitted a pro se supplemental brief arguing, among other
things, that the district court incorrectly added the additional point because his ACA
conviction is not a “crime of violence.” The Clerk initially denied his motion to file
the pro se supplemental brief. See U. S. Ct. of App. 8th Cir. Rule 27A(a).

       Miranda-Zarco asks this court to reconsider the Order. Normally, this court
does not address arguments in pro se filings when the defendant is represented by
counsel. Cf. U. S. Ct. of App. 8th Cir., Internal Operating Procedures, III.I.2
(banning all supplemental brief “without leave of the court”). Nevertheless, this court
has discretion to review pro se supplemental briefs. See, e.g., United States v. Scales,
735 F.3d 1048, 1052-53 (8th Cir. 2013) (“[W]e will consider the five issues raised by
Scales in his pro se brief.”); United States v. Benson, 686 F.3d 498, 505 (8th Cir.
2012) (granting motion to file pro se supplemental brief although defendant was
represented by counsel, and finding arguments meritless); United States v. Blum, 65
F.3d 1436, 1443 n.2 (8th Cir. 1995) (despite general “Eighth Circuit policy” against
considering pro se filings when a party is represented by counsel, this court

                                          -3-
“gratuitously examined” defendant’s pro se filings, finding “they set forth no material
of arguable merit”); United States v. Halverson, 973 F.2d 1415, 1417 (8th Cir. 1992)
(reviewing arguments raised by pro se supplemental brief, and finding them without
merit); United States v. Payton, 918 F.2d 54, 56 n.2 (8th Cir. 1990) (“While our
Eighth Circuit policy provides that when a party is represented by counsel we will not
accept pro se briefs for filing, . . . we granted leave to appellant to file a brief not to
exceed five pages.”). Having reviewed Miranda-Zarco’s pro se supplemental brief
(and the government’s response1), this court authorizes the filing of the supplemental
brief on the issue whether his ACA conviction is a “crime of violence.”

       Because this argument was not raised in the district court, this court reviews
for plain error. United States v. Ault, 598 F.3d 1039, 1042 (8th Cir. 2010). To
prevail, he must show that there is “‘(1) error, (2) that is plain, and (3) that affects
substantial rights. If all three of those 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.’” Id.,
citing Johnson v. United States, 520 U.S. 461, 462 (1997).

      At sentencing on February 25, 2015, the guidelines provided that a “crime of
violence” was any offense punishable by over one year’s imprisonment that—

       (1) has as an element the use, attempted use, or threatened use of
       physical force against the person of another, or

       (2) is burglary of a dwelling, arson, or extortion, involves use of
       explosives, or otherwise involves conduct that presents a serious
       potential risk of physical injury to another.


      1
        See In re Riverside-Linden Inv. Co., 945 F.2d 320, 324 (9th Cir. 1991) (“We
have discretion to review an issue not raised by appellant, however, when it is raised
in the appellee’s brief.”).

                                           -4-
U.S.S.G. § 4B1.2(a).2 The case of Johnson v. United States, 135 S. Ct. 2551, 2557
(2015)—argued almost four months before Miranda-Zarco’s sentencing—invalidated
the identically worded “residual clause” in the federal statute, 18 U.S.C. §
924(e)(2)(B)(ii). According to the government, this court need not consider whether
the “residual clause” in the then § 4B1.2 (a)(2) was unconstitutional. The
government believes that an ACA conviction has as an element “the use, attempted
use, or threatened use of physical force against the person of another.”

      The record does not indicate whether the district court relied on the residual
clause or the force clause to determine that Miranda-Zarco’s ACA offense was a
crime of violence under § 4A1.1(e). If the district court used the residual clause, “our
precedent would foreclose [his] 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.
Robinson, 2016 WL 3407698, at *1 (8th Cir., June 21, 2016).

       Miranda-Zarco might, however, be entitled to plain error relief if the district
court incorrectly found his ACA conviction was a crime of violence under §
4B1.2(a)(1). See id. at *2, citing Molina-Martinez v. United States, 136 S.Ct. 1338,
1345 (2016). The government claims that using a dangerous instrument or a deadly
weapon during the commission of a felony is “clearly” a crime of violence under §
4B1.2(a)(1). However, it is not readily apparent whether committing a felony “by,
with, or through the use, assistance, or aid of a dangerous instrument or deadly
weapon” necessarily has as an element the use, attempted use, or threatened use of
physical force against the person of another. This court lacks full briefing and an
adequate record to address this issue. On remand, this court assumes the parties will
“assist in gathering whatever state court records are available so the district court can


      2
          Guideline 4B1.2 has since been amended, effective August 1, 2016.

                                          -5-
make a proper determination under the categorical or modified categorical approach,
whichever the court concludes is more appropriate.” See United States v. Fields,
2016 WL 4191179, at *4 (8th Cir. Aug. 9, 2016).



                                   *******



      The sentence is vacated, and the case remanded for additional sentencing
proceedings.
                     ______________________________




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