At page 329 Panel deference regarding prior circuit decisions49 citing casesreiterating that one panel of judges in Circuit may not overrule decision of another panel in Circuit
- United States v. Troy Davis, No. 20-3409 (8th Cir. Dec. 6, 2021).unpublished(One panel may not overrule another.)
- United States v. Antonio Thigpen, 848 F.3d 841 (8th Cir. 2017).publishedSee United States v. Reynolds, 116 F.3d 328, 330 (8th Cir. 1997) (“One panel may not overrule another.”). *847 The district court did not err in assessing the four-level enhancement for possessing a firearm “in connection with another felo…
- United States v. Tyrone Parrow, 844 F.3d 801 (8th Cir. 2016).published(One panel may not overrule another.)
- United States v. William Gauld, 833 F.3d 941 (8th Cir. 2016).published (One panel may not overrule another.)
- United States v. Donquavious Davis, 667 F. App'x 584 (8th Cir. 2016).unpublished(One panel may not overrule another.)
- Dawn Lawrey v. Kearney Clinic, P.C., 751 F.3d 947 (8th Cir. 2014).published (One panel may not overrule another.)
- Hamilton v. Stand. Ins. Co., 516 F.3d 1069 (8th Cir. 2008).published (One panel may not overrule another.)
- United States v. Donald M. Hutman, No. 02-3907 (8th Cir. Aug. 12, 2003).published(One panel may not overrule another.)
- United States v. James Borders, 270 F.3d 1180 (8th Cir. 2001).published(One panel may not overrule another.)
- Romain Dukes v. United States, No. 00-1981 (8th Cir. July 11, 2001).published(One panel may not overrule another.)
Show 29 more citing cases
- Romaine Dukes v. United States, 255 F.3d 912 (8th Cir. 2001).published(One panel may not overrule another.)
- United States v. Charles Franklin, 250 F.3d 653 (8th Cir. 2001).published(One panel may not overrule another)
- Alexander Mansfield v. Eric H. Holder, Jr., 591 F. App'x 523 (8th Cir. 2015).unpublished“One panel may not overrule another.” United States v. Reynolds, 116 F.3d 328, 329 (8th Cir.1997).
- United States v. Ross, 613 F.3d 805 (8th Cir. 2010).publishedSee United States v. Ellis, 564 F.3d 370 , 372 & n. 8 (5th Cir.), cert. denied, — U.S. -, 130 S.Ct. 371 , 175 L.Ed.2d 124 (2009); United States v. Reynolds, 116 F.3d 328, 329 (8th Cir.1997).
- United States v. Michael Speakman, 330 F.3d 1080 (8th Cir. 2003).published United States v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997). -4- This argument is without merit.
- United States v. Jermaine L. Lathern, 59 F. App'x 167 (8th Cir. 2003).unpublishedThis we decline to do because “[o]ne panel may not overrule another.” United States v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997).
- Larry Kerr v. United States, 39 F. App'x 479 (8th Cir. 2002).unpublishedJarrett v. United States, 266 F.3d 789, 791 (8th Cir.2001); United States v. Reynolds, 116 F.3d 328, 329 (8th Cir.1997).
- United States v. Stacy Lee Peltier, 276 F.3d 1003 (8th Cir. 2002).published United States v. Reynolds, 116 F.2d 328, 329 (8th Cir. 1997).
- United States v. Bobby Dion Woods, 270 F.3d 728 (8th Cir. 2001).published(One panel may not overrule another)
- United States v. Jeffrey Blackwell, No. 98-1031 (8th Cir. Oct. 8, 1998).unpublishedSee U.S. Sentencing Guidelines Manual § 4B1.1. (1997); United States v. Reynolds, 116 F.3d 328, 329-30 (8th Cir. 1997).
- United States v. Anton Stevens, No. 97-4225 (8th Cir. June 10, 1998).publishedThat means that "[i]t is the generic elements of burglary that matter—unlawful entry into a building to commit a crime—not the details of particular state statutes or the special circumstances of individual cases." United States v. Reynold…
- United States v. Anton Fabian Stevens, 149 F.3d 747 (8th Cir. 1998).publishedThat means that “[i]t is the generic elements of burglary that matter— unlawful entry into a building to commit a crime — not the details of particular state statutes or the special circumstances of individual eases.” United States v. Reyn…
- United States v. Darren Terrel Davis, 141 F.3d 1170 (8th Cir. 1998).unpublished(holding that second-degree burglary in violation of Missouri law qualifies defendant as career offender under Guidelines; adding that, even if no one was present within building when defendant committed crime, serious p…)
- Sheila Hamilton v. Stand. Ins. Co., 507 F.3d 1120 (8th Cir. 2007).published(One panel may not overrule another.)
- United States v. Randy Lowell Hurd, 23 F. App'x 601 (8th Cir. 2001).unpublishedSee United States v. Reynolds, 116 F.3d 328, 329 (8th Cir.1997).
- Deshaun Raffles Murphy v. United States of Am., - Deshaun Raffles Murphy v. United States of Am., - Cross-Appellee, 268 F.3d 599 (8th Cir. 2001).publishedSee United States v. Reynolds, 116 F.3d 328, 329 (8th Cir.1997).
- Deshaun Murphy v. United States, No. 01-1291 (8th Cir. Oct. 12, 2001).publishedSee United States v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997).
- Gerald Dasean Jarrett v. United States, 266 F.3d 789 (8th Cir. 2001).published See Dukes v. United States, 255 F.3d 912, 914 (8th Cir. July 11, 2001) (“One panel may not overrule another.”) (quoting United States v. Reynolds, 116 F.3d 328, 329 (8th Cir.1997)).
- United States v. Kevin McRay Smith, 13 F. App'x 493 (8th Cir. 2001).unpublished(refusing to consider argument that Hascall was wrongly decided)
- United States v. Ronald Jennings, Jr., 7 F. App'x 535 (8th Cir. 2001).unpublishedSee United States v. Reynolds, 116 F.3d 328, 329 (8th Cir.1997).
- United States v. Will H. Hawkins, 1 F. App'x 577 (8th Cir. 2001).unpublished(refusing to consider argument that Hascall was wrongly decided)
- Eric M. Picht v. Jon R. Hawks, Ltd., 236 F.3d 446 (8th Cir. 2001).published (reiterating that one panel of judges in Circuit may not overrule decision of another panel in Circuit)
- United States v. Gregory Allen Peters, 215 F.3d 861 (8th Cir. 2000).publishedSee United States v. Reynolds, 116 F.3d 328, 329-30 (8th Cir.1997).
- United States v. Gregory A. Neeman, No. 99-3666 (8th Cir. Apr. 26, 2000).unpublishedSee United States v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997).
- United States v. Bobby Walker, 411 F. App'x 947 (8th Cir. 2011).unpublished
- Kidd v. Norman, 651 F.3d 947 (8th Cir. 2011).published
- United States v. Raymon Ortega, 150 F.3d 937 (8th Cir. 1998).published
- United States v. Donald Michael Hutman, 339 F.3d 773 (8th Cir. 2003).published
- Michael Nichols v. Michael Bowersox, No. 97-3639, 1998 WL 151380 (8th Cir. Apr. 3, 1998).published
At page 330 Determining crime of violence under statute 4B8 citing casesOne panel may not overrule another.
- United States v. Antonio Thigpen, 848 F.3d 841 (8th Cir. 2017).published(One panel may not overrule another.)
- United States v. Christopher Warren, 361 F.3d 1055 (8th Cir. 2004).published We have held repeatedly that burglary of a commercial structure constitutes a “crime of violence” because it “involves conduct that presents a serious potential risk of physical injury to another.” USSG § 4B 1.2(a)(2); see United States v.…
- United States v. Daniel Joseph Blahowski, United States of Am. v. Michael Allen Francisco, United States of Am. v. Ramon Emilio Rascon, 324 F.3d 592 (8th Cir. 2003).published However, in United States v. Reynolds, 116 F.3d 328, 330 (8th Cir.1997), we resolved any doubt as to whether Fountain was consistent with Hascall .
- United States v. Daniel J. Blahowski, No. 01-3302 (8th Cir. Apr. 4, 2003).publishedHowever, in United States v. Reynolds, 116 F.3d 328, 330 (8th Cir. 1997), we resolved any doubt as to whether Fountain was consistent with Hascall.
- United States v. Arend Mathijssen, 406 F.3d 496 (8th Cir. 2005).published See -5- United States v. Reynolds, 116 F.3d 328, 330 (8th Cir. 1997); see also United States v. Peltier, 276 F.3d 1003, 1006 (8th Cir. 2002) (stating that “burglary of a commercial building is a crime of violence within the meaning of § 4B…
- United States v. Arlie D. Maggard, No. 97-2482 (8th Cir. Sept. 18, 1998).published
At page 339 cited at this page1 citing case
- C.Y.R. v. United Parcel Serv., Inc., 792 F. Supp. 2d 108 (D. Mass. 2011).publishedEnica v. Principi, 544 *116 F.3d 328, 339 (1st Cir.2008).
At page 380 cited at this page1 citing case
- United States v. Arlie D. Maggard, United States of Am. v. Daisy Dawn Maggard, United States of Am. v. Timothy J. Maggard, 156 F.3d 843 (8th Cir. 1998).publishedSee United States v. Reynolds, 116 F.3d 328, 380 (8th Cir.1997).
At page 328 “one panel may not overrule another.”0 citing cases
v.
Glenn G. REYNOLDS, Appellant
In this case we again reaffirm the rule of this Circuit that second-degree burglary is a “crime of violence” for sentencing purposes under Section 4B1.2(l)(ii) of the Sentencing Guidelines.
I.
Glenn G. Reynolds, a convicted felon, was charged with possession of several firearms, in violation of 18 U.S.C. § 922(g)(1). The statutory maximum sentence is ten years. 18 U.S.C. § 924(a)(2). Reynolds pleaded guilty. As originally computed in the pre-sentence report, his adjusted offense level was 19. With a Criminal History Category of VI, this offense level produces a guideline range of five years and three months to 614 years. The District Court [1] determined, however, that one of Reynolds’s many previous convictions, a 1986 second-degree burglary, should be treated as a “crime of violence.” Reynolds concededly had one other such conviction, so this decision meant that he would be classified as a “career offender” under U.S.S.G. § 4B1.1. This classification produced a sentencing range of seven years and eight months to nine years and seven months. The Criminal History Category was unchanged.
The District Court imposed a sentence of eight years and four months (100 months), followed by three years’ supervised release, a fine of $3,000, to be paid in installments, and the mandatory special assessment of $50.
II.
The question presented is how to classify Reynolds’s second-degree burglary conviction. Because this issue has been thoroughly ventilated in previous opinions of this Court, we shall keep our discussion brief.
United States v. Nimrod, 940 F.2d 1186, 1188 (8th Cir.1991), holds that second-degree burglary in violation of Missouri law qualifies a defendant as a career offender under § 4B1.1. The holding was not limited to “a special subclass of burglaries that involve especially'dangerous conduct.” Id. at 1188-89. United States v. Hascall, 76 F.3d 902 (8th Cir.1996), makes it clear that this holding applies to burglaries of commercial buildings (as is the case here). The convictions at issue in Hascall were under Iowa law, but that difference doesn’t matter, because one of the bases of Hascall is Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990), adopting, for related purposes, a “generic definition [one might almost say a per se definition] of burglary.” 76 F.3d at 904. It is the generic elements of burglary that matter — unlawful entry into a building to commit a crime — not the details of particular state statutes or the special circumstances of individual cases.
We are bound by Nimrod and Has-call. The latter opinion, in particular, discusses and rejects, at some length, most of the arguments made by Reynolds in this case. Appellant argues that Hascall is wrong, but we are not at liberty to consider that argument. One panel may not overrule another.
Appellant also cites United States v. Fountain, 83 F.3d 946, 950 (8th Cir.1996), as authorizing a different approach. In Fountain, he says, this Court examined the particulars of the conduct underlying the burglary conviction before deciding that it amounted to a “crime of violence.” The point is not insubstantial, but it is ultimately unavailing. The text of the relevant part of Fountain reads as follows:
As indicated, Fountain was convicted of burglarizing a garage. The burglary in question was in progress when interrupted by the homeowner, an off-duty police officer. Fountain and his accomplice were[*330] armed with a loaded revolver, which was pointed at the officer/homeowner. The officer/homeowner then fired his weapon at the burglars and they fled. Under the circumstances, we have no difficulty finding that the incident “otherwise involves conduct that presents a serious potential risk of physical injury to another.” See United States v. Hascall, 76 F.3d 902, 904 (8th Cir.1996) (second-degree burglary of a commercial building qualifies as a crime of violence under section 4B1.2); see also United States v. Cornelius, 931 F.2d 490, 493 (8th Cir.1991) (use of weapon signifies a crime of violence).
We think this passage is best understood as an alternative holding, something like this: “The generic theory of Hascall controls, but even if it didn’t, this was still a ‘crime of violence’ because of what happened during this particular burglary.” To read this passage as disavowing the generic or per se approach of Hascall would be to attribute to the Fountain Court a sub silentio overruling of Hascall in a paragraph that itself cites Hascall with approval. As we have said many times, most recently in this very opinion, one panel may not overrule another, and we believe the Fountain panel was as well aware of that rule as we are.
We add, though it is not necessary, that this result makes sense even if we were to consider the particulars of Reynolds’s underlying conduct in the present case. The building he burglarized was a commercial structure, not a dwelling, and no one was there at the time. The building belonged to his employer. It was Reynolds’s place of work. We accept his statement that he did not intend to harm anyone, and that he would not have broken into the building if he had thought that someone was inside. This is all beside the point. The relevant portion of U.S.S.G. § 4B1.2(l)(ii) defines “crime of violence” to include “conduct that presents a serious potential risk of physical injury to another.” (Emphasis ours). That no one was injured in fact is not dispositive. Breaking into a building by its very nature involves a “serious potential risk of physical injury,” either to someone who happens-to be in the building, or to someone, for example a police officer, who happens to pass by while the crime is being committed. Reynolds did not and could not know, ex ante, that no one was in the building, or that no one would happen upon him.
Affirmed.
. The Hon. Howard F. Sachs, United States District Judge for the Western District of Missouri.