Gary Dean Mumford, Sr. v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 17-2848
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Gary Dean Mumford, Sr.
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: October 19, 2018
Filed: June 21, 2019
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Before WOLLMAN, ARNOLD, and BENTON, Circuit Judges.
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WOLLMAN, Circuit Judge.
Gary Dean Mumford, Sr., appeals the district court’s denial of his 28 U.S.C.
§ 2255 petition. He alleges that his first-degree robbery conviction no longer
qualifies as a predicate offense under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e), in the wake of Johnson v. United States, 135 S. Ct. 2551 (2015). We
vacate his sentence and remand for resentencing.

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I.
Mumford pleaded guilty in 2011 to possessing a firearm in relation to a crime
of violence in violation of 18 U.S.C. § 924(c) and possessing a firearm as a convicted
felon in violation of 18 U.S.C. § 922(g)(1). At his July 2012 sentencing, the district
court determined that Mumford was an armed career criminal, in part because he had
a prior conviction for first-degree robbery in violation of Iowa Code §§ 711.1 and
711.2 (1978). Mumford did not challenge his ACCA classification. The court
granted a reduction from the mandatory minimums applicable to Mumford’s
convictions and imposed a 160-month sentence. We affirmed in United States v.
Mumford, No. 12-2961 (8th Cir. Feb. 26, 2013) (unpublished per curiam—sealed).
The Supreme Court in Johnson invalidated the ACCA’s residual clause and
made its rule retroactive on collateral review in Welch v. United States, 136 S. Ct.
1257, 1264-65 (2016). Shortly thereafter, Mumford filed this § 2255 petition,
claiming that he was no longer an armed career criminal because his robbery
conviction had qualified as an ACCA predicate solely under the residual clause. The
district court denied the petition, reasoning that Mumford’s claim was barred by his
plea agreement’s waiver of post-conviction relief1 and that his first-degree robbery
conviction nonetheless required the use of physical force necessary under the
ACCA’s force clause. The court granted a certificate of appealability.
II.
At the outset, we reject the government’s argument that Mumford procedurally
defaulted his claim by failing to raise it on direct review. Mumford’s claim relies on
Johnson’s new rule, and he can show the cause and actual prejudice necessary to raise
1On appeal, the government disclaims reliance on the waiver of post-conviction
relief in Mumford’s plea agreement.
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it now. See Bousley v. United States, 523 U.S. 614, 618-21 (1998) (standard for
excusing procedural default). Any argument that his robbery offense was not a
predicate offense under the ACCA’s force clause would have been futile pre-Johnson,
see, e.g., United States v. Snyder, 871 F.3d 1122, 1127-28 (10th Cir. 2017)
(explaining that initial § 2255 petition based on Johnson meets cause and prejudice
requirements), and we decline the government’s invitation to “fault [Mumford] for
not making an argument that would have had no practical effect whatsoever given the
then-viable residual clause.” Chaney v. United States, 917 F.3d 895, 900 (6th Cir.
2019).
The ACCA mandates a fifteen-year minimum sentence for certain defendants
with three prior violent felony or serious drug offense convictions. 18 U.S.C.
§ 924(e)(1). It defines a “violent felony” as “any crime punishable by imprisonment
for a term exceeding one year . . . that (i) has as an element the use, attempted use, or
threatened use of physical force against the person of another; or (ii) is burglary,
arson, or extortion, [or] involves the use of explosives.” Id. § 924(e)(2)(B).2 Because
first-degree robbery is not an enumerated offense under the latter clause, we examine
only the former. We define physical force under the ACCA as “violent force—that
is, force capable of causing physical pain or injury to another person.” Stokeling v.
United States, 139 S. Ct. 544, 553 (2019) (quoting Curtis Johnson v. United States,
559 U.S. 133, 140 (2010). In determining whether a conviction requires such force,
courts use a categorical approach that looks to the fact of conviction and
the statutory elements of the prior offense. In cases where a statute
describes alternate ways of committing a crime—only some of which
satisfy the definition of a violent felony—[the statute is considered
divisible, and] courts may use a modified categorical approach and
2Johnson invalidated the ACCA’s residual clause, which had defined a violent
felony as one that “otherwise involves conduct that presents a serious potential risk
of physical injury to another.” Id. § 924(e)(2)(B)(ii).
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examine a limited set of documents to determine whether a defendant
was necessarily convicted of a violent felony. These materials include
charging documents, jury instructions, plea agreements, transcripts of
plea colloquies, or some comparable judicial record.
Headbird v. United States, 813 F.3d 1092, 1095-96 (8th Cir. 2016) (internal quotation
marks and citations omitted).
An initial § 2255 petitioner must “show by a preponderance of the evidence
that the residual clause led the sentencing court to apply the ACCA enhancement.”
Golinveaux v. United States, 915 F.3d 564, 567 (8th Cir. 2019) (quoting Walker v.
United States, 900 F.3d 1012, 1015 (8th Cir. 2018)). “Whether a claimant meets this
burden is usually a factual question for the district court, which reviews the record to
determine whether the sentencing court specified which ACCA clause it used.”
Lofton v. United States, 920 F.3d 572, 574 (8th Cir. 2019). If, however, as here, the
parties agree that the record is sufficiently developed and inconclusive as to which
ACCA clause the sentencing court relied on, we may inquire into the relevant
background legal environment at the time of sentencing to determine in the first
instance whether the sentencing court more likely than not relied upon the residual
clause in classifying Mumford’s first-degree robbery conviction as a violent felony.
Id. If it is equally likely that the court relied on the force clause, “solely or as an
alternative basis for the enhancement,” or if Mumford merely shows “that the residual
clause offered the path of least analytical resistance,” he will have failed to meet his
burden. Id. at 575 (quoting Walker, 900 F.3d at 1015). Further, if the conviction
qualifies as a violent felony under current law, any error by the sentencing court
would be harmless because resentencing would not change the ACCA enhancement.
See Lofton, 920 F.3d at 574-75.
Mumford’s first-degree robbery conviction involves both Iowa Code § 711.1,
defining robbery, and Iowa Code § 711.2, the first-degree enhancement. “[F]or the
purposes of the ACCA, we are required to examine whether the elements of simple
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robbery or the aggravating factors under first[-]degree . . . robbery necessarily require
proof of violent force.” United States v. Libby, 880 F.3d 1011, 1015 (8th Cir. 2018).
When Mumford was convicted in 1982, one committed robbery in violation of
§ 711.1 “when, having the intent to commit a theft, the person . . . (1) Commits an
assault upon another[;] (2) Threatens another with or purposely puts another in fear
of immediate serious injury[; or] (3) Threatens to commit immediately any forcible
felony,” and those acts “assist or further the commission of the intended theft or the
person’s escape from the scene thereof.” Applying the modified categorical approach
to this divisible statute, see State v. Wilson, 523 N.W.2d 440, 441 (Iowa 1994); see
also Golinveaux, 915 F.3d at 572 (Colloton, J., concurring) (explaining § 711.1
divisibility analysis), it is clear that Mumford was convicted of violating subsection
(1) of the statute because the 1982 state trial court instructed the jury that “a person
commits robbery, when, having the intent to commit a theft, he commits an assault
to assist or further the commission of an intended theft.” Jury Instr. 10.
Assault under § 711.1(1) is defined in Iowa Code § 708.1 (1977), subsection
(2) of which prohibits, in part, “act[s] . . . intended to place another in fear of
immediate physical contact which will be painful, injurious, insulting, or offensive.”
At the time of Mumford’s sentencing, this court had concluded that this subsection
did not have an element of physical force. See United States v. Smith, 171 F.3d 617,
620 (8th Cir. 1999); cf. United States v. Larson, 13 Fed. Appx. 439, 439-440 (8th Cir.
2001) (per curiam). Although § 708.1 is divisible, see Smith, 171 F.3d at 620-21, the
record is inconclusive regarding which subsection Mumford’s conduct violated, so
the sentencing court could not have concluded that his robbery conviction was a
violent felony under the force clause. Because robbery as defined by §§ 711.1(1) and
708.1 does not necessarily require violent force, we conclude that the sentencing
court more likely than not relied on the ACCA’s residual clause in determining that
robbery constituted a violent felony under the ACCA.
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Current law dictates the same result. Under Iowa law, a robbery conviction
based on assault under § 708.1(2) does not require the use, attempted use, or
threatened use of physical force. In State v. Copenhaver, 844 N.W.2d 442, 451-52
(Iowa 2014), the Iowa Supreme Court upheld the robbery convictions—based on
assaults under § 708.1(2)—of a man who entered a bank wearing a mask and
demanded money in a forceful tone, but did not threaten anyone and only touched a
teller’s nose while gesturing. See also United States v. Gaines, 895 F.3d 1028, 1032
n.5 (8th Cir. 2018) (noting this court’s conclusion in Smith that § 708.1(2) “did not
have an element of physical force”); State v. Heard, 636 N.W.2d 227, 232 (Iowa
2001) (upholding robbery conviction based on assault under § 708.1(2) where
defendant demanded money while in close proximity to bank teller, took the money,
and told the teller to lie down, but did not use or threaten physical force); cf. United
States v. Horse Looking, 828 F.3d 744, 747 (8th Cir. 2016) (citing Smith, 171 F.3d
at 620) (concluding assault statute which could be violated by “[p]umping a fist in an
angry manner” did not qualify under the force clause). Because the record does not
establish which subsection Mumford’s conduct violated—and at least § 708.1(2) does
not require violent force—this court cannot conclude that his robbery conviction was
a violent felony based on his violation of § 711.1(1). See United States v. Shockley,
816 F.3d 1058, 1063 (8th Cir. 2016).
We next consider § 711.2, which defined first-degree robbery at the time of
Mumford’s conviction as an aggravated offense committed “when, while perpetrating
a robbery, the person purposely inflicts or attempts to inflict serious injury, or is
armed with a dangerous weapon.” Regardless of whether the statute is divisible, we
conclude that the sentencing court more likely than not relied on the residual clause.
If the statute is divisible, the state jury instructions indicate that Mumford was
convicted for being “armed with a dangerous weapon” and not for “purposely
inflict[ing] or attempt[ing] to inflict serious injury. See Jury Instr. 29.4. Under Iowa
law, being armed with a dangerous weapon does not necessarily require the use,
attempted use, or threatened use of force. Instead, § 711.2’s text, taken with
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§ 711.1(1), permits a first-degree robbery conviction if the defendant commits an
insulting or offensive touching in the course of a robbery and carries a concealed and
unmentioned weapon. In State v. Farni, 325 N.W.2d 107, 108 (Iowa 1982), the Iowa
Supreme Court upheld the first-degree robbery conviction of a man who wore a gun
under his sweatshirt while he robbed the victim even though he did not use or display
the firearm during the altercation. In State v. Law, 306 N.W.2d 756, 760 (Iowa
1981), overruled on other grounds by State v. Wales, 325 N.W.2d 87 (Iowa 1982),
the court explained that “[a] person who is ‘armed’ under the robbery statute” does
not necessarily commit an assault because he “would not necessarily be pointing a
firearm or displaying a dangerous weapon in a threatening manner.” Similarly, State
v. Sharkey, 311 N.W.2d 68, 72 (Iowa 1981), held that “[i]n section 711.2 the
legislature expressed its intent to punish more severely those robberies where the
robber is armed with a dangerous weapon regardless of whether the robber intends
to use the weapon if the victim resists.” And in State v. Ray, 516 N.W.2d 863, 865
(Iowa 1994), the court’s definition of “armed” required only that the dangerous
weapon was available for immediate use, not that the weapon was actually used.
Iowa case law thus leads us to conclude that a defendant need only possess a
dangerous weapon to violate § 711.2. In so concluding, we reject the government’s
argument that “armed” means “used” under relevant Iowa law.
For the same reasons, even if the statute is divisible, it is overbroad and
encompasses conduct that does not necessarily involve the violent force required
under the ACCA. Accordingly, applying either the categorical or modified
categorical approach, we conclude that the sentencing court more likely than not
relied on the residual clause in determining that Mumford’s first-degree robbery
conviction constituted a violent felony. Current law dictates the same result and thus
the error in classification is not harmless.3
3In United States v. Langston, 800 F.3d 1004, 1005 (8th Cir. 2015) (per
curiam), we determined that an Iowa going-armed-with-intent conviction no longer
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Mumford had three qualifying violent felony convictions only under the
ACCA’s residual clause. We thus vacate his sentence, imposed in violation of the
Constitution, see 28 U.S.C. § 2255(a), and remand to the district court for
resentencing.
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qualified as a violent felony after Johnson. Other circuits have reached similar
conclusions in analyzing statutes requiring only that the defendant be “armed” or
possess a weapon. See, e.g., United States v. Bong, 913 F.3d 1252, 1266 (10th Cir.
2019) (Kansas aggravated robbery requiring merely that defendant is “armed” is not
violent felony); United States v. Walton, 881 F.3d 768, 773 (9th Cir. 2018) (Alabama
armed robbery); United States v. Starks, 861 F.3d 306, 322 (1st Cir. 2017)
(Massachusetts armed robbery).
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