United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-3094
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                               Courtney Witherspoon

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                             Submitted: April 15, 2020
                             Filed: September 9, 2020
                                  ____________

Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

       Courtney Witherspoon pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The Presentence Investigation Report
(“PSR”) recommended that he be sentenced under the Armed Career Criminal Act
(“ACCA”) because he had three prior qualifying convictions, a 1997 Missouri
“violent felony” conviction for first degree robbery, and two Missouri convictions
that qualified as “serious drug offenses.” See 18 U.S.C. § 924(e)(1). In describing
the 1997 robbery conviction, the PSR stated: “A request for court records has gone
unanswered; therefore, charging documents are unavailable.”

      Witherspoon did not object to the PSR’s listing of the 1997 robbery conviction
as part of his criminal history, but he did object “that his prior criminal history
contains no convictions which meet the definition of crime of violence or serious
drug offense.” The Probation Officer responded stating that Witherspoon in St. Louis
County Circuit Court Docket No. 2196R-03015-01 was convicted of violating Mo.
Rev. Stat. § 569.020, “the crime of robbery in the first degree.” At sentencing,
defense counsel, noting that the PSR stated “the charging documents are
unavailable,” argued “there is a lack of proof” Witherspoon is an armed career
criminal. The district court1 asked: “you’re not saying there’s a lack of proof as to
the conviction itself; it’s just that the charging document and exactly what the
charging document says is what we don’t have; correct?” Counsel responded, “Yes,
your honor.” The court then determined that the 1997 robbery conviction was for a
violent felony and imposed the mandatory minimum ACCA sentence of 180 months
imprisonment. Witherspoon appeals, arguing the district court erred in sentencing
him as an armed career criminal. We disagree and therefore affirm.

       The issues raised in this appeal cover ground well traveled. In determining
whether Witherspoon has a qualifying “violent felony” conviction, the first question
is factual -- did the government prove by a preponderance of the evidence that
Witherspoon was convicted of the 1997 robbery in question? We review the district
court’s finding that he has the prior conviction for clear error. See United States v.
Thornton, 

, 878 (8th Cir. 2014). The second question is primarily legal
-- did the government prove the conviction was for a qualifying violent felony
offense? “In determining whether a state-law offense is a violent felony, we apply


      1
       The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.

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the formal categorical approach adopted by the Supreme Court in Taylor v. United
States, 

, 600, an analysis that focuses on the statutory elements of the
offense rather than the particular facts underlying the defendant’s prior conviction.”
United States v. Forrest, 

, 909-10 (8th Cir. 2010) (cleaned up). When
the state statute proscribed discrete sets of elements, only some of which would
qualify, we examine a limited universe of materials, including the charging document,
to determine whether the defendant was convicted of a violent felony alternative.

see Shepard v. United States, 

, 16 (2005).

        1. Addressing the first question, Witherspoon argues, relying on Shepard, that
without a charging document the government failed to prove the 1997 robbery
conviction. However, “Shepard’s limitation of evidence . . . . does not apply to
antecedent factual questions such as whether the defendant was convicted of a crime
at all, or of which crime the defendant was convicted.” United States v. Webster, 

, 919 (8th Cir. 2011). For these antecedent questions, the normal rule
governing sentencing determinations applies: “A court may consider any evidence
in its sentencing determination that has sufficient indicia of reliability to support its
probable accuracy.” United States v. Urbina-Mejia, 

, 840 (8th Cir.
2006) (quotation omitted); see United States v. Roach, 

, 414 (8th Cir.
1998) (upholding the use of computer records to establish a prior conviction for
which court records no longer existed); cf. USSG § 6A1.3(a). Our sister circuits that
have considered the question agree. See United States v. McDowell, 

,
120-21 (4th Cir. 2014), cert. denied, 

(2015); United States v. Carter,

, 661-62 (D.C. Cir.), cert. denied, 

(2010); United States v.
Bryant, 

, 153-55 (1st Cir. 2009) (collecting cases).

       Here, Witherspoon did not object to the PSR’s recitation that he was, in fact,
convicted of the 1997 robbery offense. For that reason alone, the district court was
entitled to treat that fact as established. See, e.g., United States v. Trevino, 

, 675 (8th Cir. 2016). Moreover, when the court stated at sentencing, “you’re not

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saying there’s a lack of proof as to the conviction itself,” defense counsel agreed. In
these circumstances, the government did not need to produce additional evidence of
the robbery conviction, let alone the charging document. We have held that a
charging document can provide “sufficient evidence to support a finding that the
defendant was necessarily convicted” of a violent felony offense. United States v.
Hataway, 

, 944 (8th Cir. 2019). But no case has held that the
government must produce the charging document to establish the fact of conviction.

       2. Turning to the second question, Witherspoon argues there is “insufficient
documentary or evidentiary support to classify the [1997] burglary as generic” under
Taylor. However, the 1997 conviction at issue was for multiple offenses including,
in addition to burglary, first degree robbery in violation of Mo. Rev. Stat. § 569.020.1
(1979). The critical element of this offense was a person who “forcibly steals
property” under circumstances that include one or more aggravating factors such as
causing serious physical injury.2 In United States v. Swopes, 

, 670-72
(8th Cir. 2018) (en banc), cert. denied, 

(2019), based on the “forcibly
steals” element, we held that Missouri second degree robbery categorically qualifies
as a violent felony under the ACCA because it involved the “use, attempted use, or
threatened use of physical force.” 18 U.S.C. § 924(e)(2)(B)(i). First degree robbery
contained that same element. Therefore, we held in United States v. Shine that first
degree robbery categorically qualified as a “crime of violence” under the parallel
elements (force) clause in the Sentencing Guidelines. 

, 1063 (8th Cir.
2018). These precedents establish that Witherspoon’s 1997 first degree robbery
conviction categorically qualified as a violent felony under the ACCA’s elements
clause. See, e.g., Stokeling v. United States, 

, 555 (2019).




      2
      Missouri has since amended its first and second degree robbery statutes. See
Mo. Rev. Stat. §§ 570.023, 570.025.

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      When a statutory offense categorically qualifies as a violent felony, review of
the limited materials authorized by Shepard, such as the charging document, is
unnecessary. The offense is a violent felony, and the prior conviction is a qualifying
predicate under the ACCA. Accordingly, the district court did not err in sentencing
Witherspoon as an armed career criminal.

      The judgment of the district court is affirmed.
                     ______________________________




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