United States Court of Appeals
For the Eighth Circuit
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No. 16-3403
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Daryl Diemer
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 21, 2017
Filed: April 4, 2018
[Unpublished]
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Before LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Daryl Diemer pled guilty to one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court1
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
imposed the 15-year mandatory minimum sentence under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e), because Diemer had four previous convictions for
violent felonies: (1) a Missouri conviction for second-degree robbery; (2) a Missouri
conviction for second-degree burglary; (3) a Kansas conviction for burglary; and (4) a
Kansas conviction for attempted aggravated burglary.
Diemer thereafter moved to vacate his sentence in light of Johnson v. United
States, 135 S. Ct. 2551 (2015), arguing that neither of his Missouri convictions were
violent felonies under the ACCA. The district court ruled that Diemer’s second-
degree robbery conviction was a predicate felony and accordingly found it
unnecessary to address the argument on his second-degree burglary conviction.
Diemer then requested a certificate of appealability on the issue of whether a Missouri
conviction for second-degree burglary is a violent felony within the meaning of the
ACCA, and we granted that request.
In light of this court’s en banc decision in United States v. Swopes, No. 16-
1797, slip op. at 6 (8th Cir. March 29, 2018) (en banc), which held that a “conviction
for Missouri second-degree robbery [i]s a ‘violent felony’ under the ACCA,” we
conclude that the district court properly counted Diemer’s second-degree robbery
conviction as a violent felony under the ACCA. When combined with his two Kansas
convictions, Diemer has three prior convictions “for a violent felony or a serious drug
offense,” and thus was properly sentenced as an armed career criminal. § 924(e)(1).2
We therefore affirm the district court.
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2
In his reply brief, Diemer raises for the first time an argument concerning
whether his Kansas convictions are predicate felonies under the ACCA. We do not
consider this argument because it is untimely, United States v. Jones, 842 F.3d 1077,
1082 n.2 (8th Cir. 2016), and it exceeds the scope of the certificate of appealability,
Ramirez v. United States, 751 F.3d 604, 608-09 (8th Cir. 2014).
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