                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3057
                        ___________________________

                                Shannon D. Robinett,

                       lllllllllllllllllllllPetitioner - Appellant,

                                           v.

                             United States of America,

                      lllllllllllllllllllllRespondent - Appellee.
                                      ____________

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

                         Submitted: September 21, 2017
                            Filed: March 30, 2018
                                 ____________

Before COLLOTON, BENTON, and KELLY, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

     Shannon D. Robinett sought post-conviction relief in the district court1 on the
ground that his fifteen-year prison sentence under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(1), was imposed in violation of the Constitution and in

      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
excess of the maximum authorized by law. Robinett contends that in light of Johnson
v. United States, 135 S. Ct. 2551 (2015), which held that the residual clause of
§ 924(e)(2)(B)(ii) is unconstitutionally vague, the sentencing court should not have
concluded that he sustained three previous convictions for a violent felony. As such,
he argues, enhanced punishment under the ACCA was imposed unconstitutionally
and in excess of the statutory maximum. The district court concluded that Robinett
still had at least three qualifying prior convictions and denied relief. We agree and
therefore affirm.

      Robinett pleaded guilty in 2009 to unlawful possession of a firearm as a
previously convicted felon under 18 U.S.C. § 922(g)(1). Under the ACCA, a
defendant who violates § 922(g) is subject to a statutory minimum of fifteen years’
imprisonment if he has sustained three or more previous convictions for a violent
felony committed on occasions different from one another. 18 U.S.C. § 924(e)(1).
Otherwise, the maximum sentence is 10 years’ imprisonment. Id. § 924(a)(2).

       The ACCA defines “violent felony” as “any crime punishable by imprisonment
for a term exceeding one year” that (1) “has as an element the use, attempted use, or
threatened use of physical force against the person of another,” (2) “is burglary,
arson, or extortion, [or] involves use of explosives,” or (3) “otherwise involves
conduct that presents a serious potential risk of physical injury to another.” Id.
§ 924(e)(2)(B). These three clauses are sometimes described, respectively, as the
force clause, the enumerated-offenses clause, and the residual clause. The sentencing
court determined that Robinett had sustained three prior convictions for violent
felonies and sentenced him to the statutory minimum term of fifteen years’
imprisonment. The court did not specify the clause on which it relied to count each
previous conviction, but Robinett had sustained three convictions that qualified under
the residual clause at the time of sentencing. Since then, however, the Supreme Court
in Johnson declared the residual clause unconstitutionally vague, and then held that



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Johnson applies retroactively to cases on collateral review. Welch v. United States,
136 S. Ct. 1257, 1265 (2016).

       Robinett moved to correct his sentence under 28 U.S.C. § 2255. He urged that
without the residual clause of § 924(e), he had not sustained three prior convictions
that qualify as violent felonies. The district court denied his motion, concluding that
four of Robinett’s prior convictions qualify under the force clause. The court relied
on two convictions for second-degree assault in Missouri, a conviction for second-
degree robbery in Missouri, and a conviction for robbery in Kansas.

       On appeal, Robinett argues that neither his Missouri second-degree robbery
conviction nor his Kansas robbery conviction is a violent felony under the force
clause. He also contends that the district court erred by counting his two convictions
for second-degree assault as separate previous convictions, because the offenses were
not “committed on occasions different from one another” within the meaning of
§ 924(e)(1).

       We see no error in the district court’s counting of the two assault convictions.
In a § 2255 proceeding, Robinett bears the burden to show that he is entitled to relief.
Word v. United States, 604 F.2d 1127, 1130 (8th Cir. 1979). Yet he never argued in
the district court that his two assault convictions should be treated as only one violent
felony conviction under the ACCA. The district court, after referring to Robinett’s
robbery convictions, observed that Robinett “does not dispute that his other two
predicate offenses, two counts of second-degree assault, qualify as predicate offenses
without the use of the residual clause.” Robinett now contends that his § 2255
petition raised the issue by stating that his presentence report counted as a violent
felony “two concurring counts of assault in the second degree.” In the next sentence
of his petition, however, Robinett acknowledged that “the assault convictions remain
violent felonies in the absence of the residual clause.” His reference to the “assault
convictions” (plural) as “violent felonies” (plural) is consistent with the district

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court’s conclusion that Robinett did not dispute counting these convictions as two
predicate felonies.2

       The only evidence in the record about the assault convictions is from
Robinett’s presentence report. The report said that a two-count information charged
that Robinett, on August 22, 1993, “attempted to cause physical injury to Robert
Reynolds (Count 1) and Bryan Hughes (Count 2) by means of a dangerous
instrument.” That the assaults were committed on the same date does not establish
that they were committed on the same occasion. If Robinett assaulted two different
victims at different times in different locations, then the offenses likely were
committed on occasions different from one another within the meaning of § 924(e).
See United States v. Humphrey, 759 F.3d 909, 911 (8th Cir. 2014). Because Robinett
did not challenge the counting of two assault convictions in the district court, and has
not satisfied his burden to prove that the assaults were committed on a single
occasion, the district court did not err by counting the two assault convictions as two
predicate offenses under the ACCA.

       Robinett also contends that neither the conviction for Missouri second-degree
robbery nor the conviction for Kansas robbery counts as a violent felony. In United
States v. Swopes, No. 16-1797, slip op. (8th Cir. Mar. 29, 2018) (en banc), however,
this court held that Missouri second-degree robbery is categorically a violent felony
under the force clause. Therefore, considering the two Missouri assault convictions
and the Missouri conviction for second-degree robbery, Robinett has not undermined
the sentencing court’s conclusion that he had sustained three previous qualifying



      2
       Robinett also points to the government’s response to his petition, which said
that Robinett’s sentence was based in part on “a prior conviction for assault.” In the
same pleading, however, the government cited Robinett’s argument that “only his two
prior convictions for assault remain violent felonies.” The district court
understandably was guided by Robinett’s characterization of his argument.

                                          -4-
convictions for a violent felony. It is not necessary to address whether the Kansas
conviction for robbery also qualifies.

       Robinett has not established that his sentence was imposed in violation of the
Constitution or in excess of the maximum authorized by law. The judgment of the
district court is therefore affirmed.
                         ______________________________




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