United States Court of Appeals
For the Eighth Circuit
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No. 16-1028
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Sharrod E. Dace
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 19, 2016
Filed: November 30, 2016
[Published]
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Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
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PER CURIAM.
Sharrod E. Dace pleaded guilty to a one-count indictment charging him with
being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g) and
924(a)(2). At sentencing, the district court1 discussed Dace’s objections to
categorization of two of Dace’s prior convictions as crimes of violence: resisting
arrest and second-degree robbery. The district court sustained Dace’s objection with
respect to the resisting arrest conviction, but found over Dace’s objection that Dace’s
prior Missouri conviction for second-degree robbery constituted a crime of violence
for purposes of sentencing. Dace appeals. Though the district court erred in
concluding that Dace’s second-degree robbery conviction qualifies as a crime of
violence, we find that error to be harmless.
I. Background
On January 20, 2014, Independence, Missouri, police officers received a report
of suspicious activity in a Kohl’s Department Store parking lot. Officers were told
that a black Monte Carlo had entered the parking lot, and a male passenger had exited
the car and was crouching between parked cars. When police later attempted to stop
the Monte Carlo, a high-speed chase ensued. The Monte Carlo was ultimately found
abandoned, but the license plate was traced to Dace.
Officers went to Dace’s address, where Dace’s girlfriend consented to a search
of the house. During the search, officers discovered seven guns and found Dace
hiding in a basement crawl space. Dace pleaded guilty to a one-count indictment
charging him with being a felon in possession of firearms. At sentencing, the district
court found that because Dace’s prior conviction for Missouri second-degree robbery
in violation of Mo. Rev. Stat. § 569.030 constituted a crime of violence under USSG
§ 4B1.2(a)(1), Dace was subject to a sentencing enhancement pursuant to
§ 2K2.1(a)(4). Applying the enhancement, Dace’s Guidelines range was 46–57
months, but the court varied upward to impose a sentence of 75 months. The court
1
The Honorable Greg Kays, Chief Judge, United States District Court for the
Western District of Missouri.
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explained that it would have imposed the same sentence even if it had concluded that
the Missouri second-degree robbery conviction did not constitute a crime of violence,
highlighting the dangerous nature of the crime and what it considered to be Dace’s
particularly violent criminal history.
II. Discussion
Dace argues that the district court erred in determining that a conviction under
Missouri’s second-degree robbery statute is a crime of violence under USSG
§ 4B1.2(a)(1) and therefore applying a sentencing enhancement for a prior crime of
violence conviction under § 2K2.1(a)(4). While Dace’s appeal was pending, our
court addressed this very issue. United States v. Bell, — F.3d. —, 2016 WL
6311084, at *1–3 (8th Cir. 2016) (discussing Johnson v. United States, 559 U.S. 133,
140 (2010)). We held that a conviction for second-degree robbery in Missouri does
not trigger an enhancement under § 2K2.1—which incorporates the definition of
“crime of violence” articulated in § 4B1.2—because it does not have, as an element
of the offense, the use of violent force. Id. at *3 (addressing whether Missouri
second-degree robbery qualifies as a crime of violence under only the force clause of
§ 4B1.2). Therefore, the district court erred in determining that Dace’s second-degree
robbery conviction warranted a sentencing enhancement for a prior crime of violence.
“A failure to properly calculate the advisory Guidelines range is a significant
procedural error . . . .” United States v. Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008).
Where, as here, a defendant preserves a Guidelines challenge, we review for harmless
error. United States v. Martinez, 821 F.3d 984, 988 (8th Cir. 2016). “[T]he
Government bears the burden of persuasion to demonstrate that the error was
harmless, that is, that the error did not affect [Dace’s] substantial rights.” Spikes, 543
F.3d at 1025.
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An incorrect Guidelines calculation “‘is harmless error where the district court
specifies the resolution of a particular issue did not affect the ultimate determination
of a sentence,’ such as when the district court indicates it would have alternatively
imposed the same sentence even if a lower guideline range applied.” Martinez, 821
F.3d at 988–89 (internal citations omitted) (quoting United States v. Thibeaux, 784
F.3d 1221, 1227 (8th Cir. 2015)). While in some cases a court sentencing a defendant
under an incorrect Guidelines range may require remand without any further showing
of prejudice, when a district court’s detailed explanation for the sentence imposed
makes “clear that the judge based the sentence he or she selected on factors
independent of the Guidelines,” the error may be harmless. United States v.
Molina-Martinez, 136 S. Ct. 1338, 1346–47 (2016); see United States v. Icaza, 492
F.3d 967, 970–71 (8th Cir. 2007) (district court’s explanation must be sufficiently
detailed in order to establish harmless error).
Here, the district court varied upward from the 46–57-month Guidelines range
and sentenced Dace to a 75-month term of imprisonment.2 In so doing, the district
court engaged in a thorough discussion of the § 3553(a) factors. The court
highlighted Dace’s particular characteristics, noting that Dace had “one of the most
violent records for someone your age that I’ve seen,” including participation in
robberies resulting in bodily injury to the victims. The court emphasized that Dace
had previously been sentenced to at least one six-year term of imprisonment, to no
apparent deterrent effect, and expressed the view that “you don’t get less time the
more felonies you commit.” The court repeatedly stressed the need for deterrence and
the need to protect the public.
2
Absent the sentencing enhancement for a prior crime of violence, but applying
all other enhancements and reductions applied by the district court, Dace would have
had an offense level of 13 and a criminal history category of IV, making the
applicable advisory Guidelines range 24–30 months.
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The court also discussed the nature and circumstances of the instant offense,
including the attendant, and very dangerous, high-speed chase. The court explained
that leading police on a high-speed chase often results in injury or death, and poses
a substantial threat to innocent bystanders. And, in explaining that it would have
imposed the same sentence had it not applied the enhancement for a prior crime of
violence, the court explicitly noted that its upward variance was based on “the very
serious nature of this offense,” and “the danger to the public.” The court made clear
that it relied on the § 3553(a) factors—independent of the Guidelines range—in
deciding to vary upward. Cf. United States v. Mulverhill, 833 F.3d 925, 931 (8th Cir.
2016) (remanding for procedural error when “[t]he district court made no affirmative
statements or indications of its intention to impose the same sentence even if [the
defendant’s] total offense level were lower”); Icaza, 492 F.3d at 971 (remanding
where district court’s explanation for alternative sentence was not sufficiently
detailed). The district court both provided a detailed explanation of its reasons for
the upward variance and acknowledged that these reasons would apply even in the
face of Dace’s objection, saying “even if I sustained all of your objections to the
guidelines . . . I’d still come to the same place, even though the guideline calculations
may be different.”
Given the district court’s thorough discussion of the § 3553(a) factors
underlying its decision to vary upward, and its explanation for the sentence imposed
even had the court sustained Dace’s objection to the Guidelines calculation, the
district court’s procedural error was harmless. We affirm.
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