No. 20-3662 ___________________________

DeMarko L. Collins

lllllllllllllllllllllMovant - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee ____________

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

Submitted: December 14, 2021 Filed: March 16, 2022 ____________ Before LOKEN, ARNOLD, and STRAS, Circuit Judges. ____________ LOKEN, Circuit Judge.

Does trial counsel’s failure to object to a sentencing enhancement, based on an Eighth Circuit decision that controlled the issue at the time of sentencing but was later overruled by the court en banc, satisfy the “prejudice” element of an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984)? We conclude the answer is no and therefore affirm the district court’s1 denial of DeMarko Collins’s motion for post-conviction relief under 28 U.S.C. § 2255.

I.

On September 1, 2016, Collins pleaded guilty to being a felon in possession of a firearm and possessing a stolen firearm. See 18 U.S.C. §§ 922(g)(1) and (j) and 924(a)(2). The Presentence Investigation Report (PSR) determined he had two prior felony convictions for “crimes of violence,” including a Missouri state court conviction for second-degree robbery. Mo. Rev. Stat. § 569.030.1 (1979).2 These prior convictions enhanced the base offense level, see USSG § 2K2.1(a)(2), resulting in a total offense level of 23 and an advisory guidelines sentencing range of 84 to 105 months’ imprisonment. Five months before Collins’s March 2017 sentencing hearing, a divided panel of this court held that Missouri second-degree robbery is not a crime of violence. United States v. Bell, 840 F.3d 963, 966-67 (8th Cir. 2016). Defense counsel did not cite Bell in opposing the § 2K2.1 enhancement. The district court overruled Collins’s objections, granted the government’s motion for an upward variance, and sentenced Collins to 216 months -- 108 months on each count.

Collins appealed his sentence. Relying on Bell, he argued that the district court erred in imposing the § 2K2.1 enhancement because Missouri second-degree robbery is not a crime of violence under the Guidelines. With the appeal pending, our en banc court overruled Bell and held that a conviction for Missouri second-degree robbery is a violent felony under the Armed Career Criminal Act (ACCA). United States v. Swopes, 886 F.3d 668, 672 (8th Cir. 2018). One month later, a panel affirmed

1 The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri. 2 Missouri amended its second-degree robbery statute effective January 1, 2017. See Mo. Rev. Stat. § 570.025.1. The amended statute is not at issue.

-2- Collins’s sentence, concluding that Swopes foreclosed his contention because “[o]ur precedent views a ‘violent felony’ under the ACCA and a ‘crime of violence’ under the Guidelines as interchangeable.” United States v. Collins, 719 F. App’x 542, 543 (8th Cir. 2018), citing United States v. Hall, 877 F.3d 800, 806 (8th Cir. 2017).

On April 15, 2019, Collins filed a pro se motion for § 2255 relief. Ground One of the five-count motion alleged that he received ineffective assistance of counsel at sentencing because counsel failed to cite Bell, which was controlling authority establishing that, at the time of his sentencing, a Missouri second-degree robbery conviction was not a cr