§525 Career Offender, “Prior Violent Felony”
(§B1.2)
First Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
Miscellaneous
1st Circuit rules that making threatening statements constitutes a crime of violence for career offender purposes. (525) Defendant contended that he was not a career offender because his prior state offense for “High and Aggravated Oral Threatening” was not a crime of violence. The 1st Circuit rejected defendant’s argument. Even if the statute covered many kinds of conduct which did not involve the risk of injury, it was proper for the district court to look beyond the statute and review the specific circumstances of defendant’s conduct. Defendant’s conduct involved a serious risk of injury. Defendant had threatened to “blow away” two police officers performing their official duties. Whether or not defendant actually possessed a gun, the officers, faced with such language, might have thought themselves in danger, and defendant, the officers, or a third party might have been hurt. U.S. v. Leavitt, 925 F.2d 516 (1st Cir. 1991).
1st Circuit rules that state misdemeanors qualify as crimes of violence for career offender purposes. (525) Defendant argued that he was not a career offender because his two prior convictions for assault and battery on a police officer were state misdemeanors, and not crimes of violence. Defendant contended that simple assault did not contemplate the infliction or threat of infliction of serious bodily harm like the violent felonies listed in the guidelines commentary. The 1st Circuit rejected this argument, finding that assault is a crime of violence. Since the commentary to the guidelines is not an exhaustive list of all offenses qualifying as violent, the fact that assault is not listed as an example of a crime of violence was not significant. U.S. v. Pratt, 913 F.2d 982 (1st Cir. 1990).
1st Circuit holds that bank robbery by force and violence is a crime of violence within the career offender guideline. (525) Defendant pled guilty to bank robbery by force and violence or by intimidation in violation of 18 U.S.C. § 2113(a). The 1st Circuit held that it was beyond dispute that the career offender guideline definition of crime of violence applied to this offense. The offense by its nature involved a substantial risk that physical force may be used against a victim and also presented a serious potential risk of physical injury to another. Even if the offender does not intend to carry out his threat, his victim may fear his threat and take actions which would cause the offender to react violently. The defendant’s conduct, which was typical of robbery, clearly involved the substantial or serious risk of physical force or injury. U.S. v. McVicar, 907 F.2d 1 (1st Cir. 1990).
1st Circuit holds that conviction of larceny from the person was a crime of violence under career offender guideline. (525) Defendant who had pled guilty to bank robbery asserted that his prior state law conviction for “larceny from the person” should not have counted as a crime of violence under the career offender guidelines. The 1st Circuit disagreed, finding that even though no threat of violence was involved, the risk of physical injury was serious because even a pickpocket can cause a reaction from his victim which might lead to more serious consequences. U.S. v. McVicar, 907 F.2d 1 (1st Cir. 1990).
3rd Circuit will not review underlying circumstances to determine whether offense listed in application notes is crime of violence. (525) The 3rd Circuit found that since robbery was specifically listed in the application notes as a crime of violence, robberies are “per se crimes of violence,” and it was error not to sentence defendant as a career offender. The court left open the possibility that a review of the underlying circumstances might be proper in cases involving offenses other than those specifically enumerated in the application notes. U.S. v. McAllister, 927 F.2d 136 (3rd Cir. 1991).
3rd Circuit holds that possession of gun is a crime of violence for career offender purposes where defendant fired the gun at another person. (525) In sentencing defendant as a career offender under the guidelines, the district court found that the crime of being a felon in possession of a firearm was a “violent felony.” The 3rd Circuit affirmed, ruling that since the facts showed that defendant possessed the gun while firing it at another individual, it was a violent felony. See Application Note 1 to § 4B1.2. The court indicated that merely possessing the gun without firing it would not be a crime of violence. The court also ruled that applying the Armed Career Criminal provisions of 18 U.S.C. § 924(e) along with the career offender guideline did not violate double jeopardy. U.S. v. Williams, 892 F.2d 296 (3rd Cir. 1989), superseded by guideline on other grounds as stated in Stinson v. U.S., 508 U.S. 36, 113 S.Ct. 1913 (1993).
4th Circuit finds breaking and entering of unoccupied house was crime of violence for career offender purposes. (525) Defendant contended that his prior state conviction for breaking and entering a residence was not a crime of violence for career offender purposes because at the time of the crime the owner of the property lived in a rest home and the property was unoccupied. The 4th Circuit rejected this reasoning. The building which defendant broke into was a residence and was used for no other purpose. There was no evidence to suggest that it was not occupied at the time of the break-in. Even though the owner was in a rest home, there was no evidence of when she or someone else might return. Her grandson was looking after the house, and the grandson actually came upon defendant while defendant was hauling away furniture. From defendant’s perspective, the risk to person or property was no different than had the owner been away momentarily at the store. U.S. v. Raynor, 939 F.2d 191 (4th Cir. 1991).
4th Circuit determines that unarmed robbery is a crime of violence for career offender purposes. (525) Defendant contended that his unarmed robbery of a bank was not a crime of violence for career offender purposes. The 4th Circuit rejected this argument. Defendant had clearly threatened the use of force when he handed the bank teller a note that stated “Give me $500 or I will shoot you.” Moreover, application note 1 to guideline § 4B1.2 makes its clear that robbery is a crime of violence regardless of the presence of a weapon. In addition, defendant was convicted of violating the unarmed bank robbery statute, which requires property to be taken “by force and violence” or “by intimidation.” The 4th Circuit also refused to consider defendant’s argument that he was entitled to a downward departure because he was unarmed during the robbery, since a failure to depart downward is not appealable. U.S. v. Davis, 912 F.2d 1210 (10th Cir. 1990).
4th Circuit holds that commercial burglaries do not qualify as crimes of violence under career offender guidelines. (525) Defendant was convicted of various firearm violations, and the district court sentenced him as a career offender under § 4B1.1 because he had two prior convictions for breaking and entering, and two prior convictions for burglary. However, the 7th Circuit reversed, because all these convictions involved commercial structures rather than residences. The district court erred in failing to follow the Sentencing Commission’s view that such crimes do not qualify as “crimes of violence.” See § 4B1.2, application note 1. Thus, the sentence was vacated and the case remanded for resentencing. U.S. v. Talbott, 902 F.2d 1129 (4th Cir. 1990).
4th Circuit holds that pointing a firearm at a person is a crime of violence under South Carolina law for purposes of career offender guidelines. (525) The 4th Circuit affirmed the district court’s determination that a drug defendant was a career offender due to his previous conviction under South Carolina law for pointing a firearm at a person. The court held that his crime was a crime of violence under 18 U.S.C. § 16 and South Carolina law. It rejected the defendant’s argument that this holding would (1) violate the guidelines goal of uniformity in federal sentencing and (2) equate crimes where actual force was used with those where actual force was not used (as was the case here). It is not unreasonable to treat these latter two instances distinctly because the threat of substantial harm is the same in either case. U.S. v. Thompson, 891 F.2d 507 (4th Cir. 1989).
5th Circuit holds residential burglary constitutes crime of violence under career offender section. (525) Relying on 18 U.S.C. § 16(b) and its prior decision in U.S. v. Flores, 875 F.2d 110 (5th Cir. 1989), the 5th Circuit held that a residential burglary is a crime of violence under § 4B1.1, the career offender section. U.S. v. Cruz, 882 F.2d 922 (5th Cir. 1989).
5th Circuit rules residential burglaries constitute crimes of violence under the career offender section. (525) The 5th Circuit, relying on § 4B1.2, application note 1 and 18 U.S.C. § 16(b) held that a residential burglary qualifies as a crime of violence under the career offender section (§ 4B1.1). A residential burglary is a crime of violence because it involves the substantial risk of physical force against another person or the property. U.S. v. Flores, 875 F.2d 1110 (5th Cir. 1989).
6th Circuit holds unarmed robbery is a crime of violence for career offender purposes. (525) Defendant was classified as a career offender based on a previous unarmed bank robbery in which he wore a mask and threatened to hurt a teller. Defendant argued the robbery was not a crime of violence. The 6th Circuit disagreed, writing that the threat of force made it a crime of violence. Moreover, a bank robbery falls within the definition of a crime of violence because it can only succeed if there is a threat of physical force. The court also held that it is proper to look at evidence other than the statute in determining whether an offense is a crime of violence. U.S. v. Maddalena, 893 F.2d 815 (6th Cir. 1989).
7th Circuit holds unarmed bank robbery is a crime of violence. (525) Defendant committed an unarmed bank robbery. The 7th Circuit held that such a bank robbery is a crime of violence for career offender purposes, and that it need not inquire as to the underlying circumstances. The federal bank robbery statute required the government to prove that defendant took the money by force and violence or by intimidation. Thus, “[a] defendant properly convicted of bank robbery is guilty per se of a crime of violence, because violence in the broad sense that includes a merely threatened use of force is an element of every bank robbery. Moreover, application note 2 to § 4B1.2 lists robbery as a crime of violence. The only time a judge is entitled to conduct an inquiry into the facts underlying the offense is where that offense can be committed without violence within the meaning of § 4B1.1. Federal bank robbery is not such an offense. U.S. v. Jones, 932 F.2d 624 (7th Cir. 1991).
7th Circuit, en banc, finds that crime of violence cannot be a non-violent offense for departure purposes. (525) Defendant was sentenced as a career offender for writing threatening letters to the President. She had a long history of making similar threats, and the government conceded that she had no intent to carry out her threats. The district court found that it had no authority to depart downward based on defendant’s reduced mental capacity under guideline § 5K2.13, since defendant had committed a crime of violence. Defendant argued that even if her crime was a crime of violence for career offender purposes, it was still a “non-violent offense” within the meaning of guideline § 5K2.13. The 7th Circuit rejected the argument, finding that the term “crime of violence” under the career offender guidelines and the term “non-violent offense” in guideline § 5K2.13 are mutually exclusive. Judges Easterbrook, Cudahy, Posner, Coffey and Manion dissented, arguing that the two terms are not mutually exclusive. U.S. v. Poff, 926 F.2d 588 (7th Cir. 1991)(en banc).
7th Circuit holds that district court may rely upon statutory definition of prior offense to determine whether offense is a crime of violence. (525) Defendant was classified as a career offender on the basis of two prior robbery convictions. Defendant contended that the record did not reflect that force was used in one of the robberies, and therefore it was not properly regarded as a crime of violence. Under applicable state law, robbery was defined as the taking of property “by the use of force or by threatening the imminent use of force.” The 7th Circuit rejected defendant’s argument that a district court must review the underlying facts of a prior conviction to determine whether it was in fact a crime involving violence. A court has discretion to review the underlying facts when such crime is not enumerated in the guidelines commentary as a crime of violence. However, the court has no duty to review such facts. U.S. v. Carter, 910 F.2d 1524 (7th Cir. 1990).
7th Circuit rules that threatening the life of the President is a crime of violence for career offender purposes. (525) Defendant argued that the district court erred in applying career offender guidelines because his prior offenses of threatening the life of the President were not crimes of violence. The 7th Circuit rejected this argument, since the crime by definition must involve a “true threat” made with the intent that it be interpreted by the recipient as a genuine expression of an intent to take the life of the President. U.S. v. McCaleb, 908 F.2d 176 (7th Cir. 1990).
7th Circuit upholds “career offender” classification based on two manslaughter convictions. (525) Defendant argued that two prior convictions for manslaughter were improperly used to classify him as a career offender because they were unrelated to his current drug offenses and were not premeditated. The 7th Circuit rejected his argument, holding that the plain language of guideline § 4B1.1 and 4B1.2 required the two felony convictions to be used in classifying defendant as a career criminal. No special relationship is required between the prior felony convictions and the present felony conviction, nor is there any premeditation requirement for crimes of violence. U.S. v. Gant, 902 F.2d 570 (7th Cir. 1990).
7th Circuit finds it unnecessary to decide whether felon’s possession of a firearm is always a crime of violence. (525) A defendant is a career offender if he commits a crime of violence or a controlled substance offense, with at least two prior felony convictions for similar offenses. The 7th Circuit held that in determining whether the possession of a firearm was a crime of violence in this case, the district court may consider the facts underlying the conviction. At the sentencing hearing, the district court specifically found that defendant fired the gun. Accordingly the 7th Circuit found it unnecessary to resolve the question of whether possession of a firearm by a felon is always a violent felony. Here the possession was a crime of violence. U.S. v. McNeal, 900 F.2d 119 (7th Cir. 1990).
7th Circuit holds that district court may consider the underlying facts in determining whether a prior conviction is a “crime of violence.” (525) The 7th Circuit held that § 4B1.2, application note 1, vests a sentencing court with discretion to explore the underlying facts of a prior conviction when that conviction is for a crime that is not one of the crimes specifically enumerated. In determining whether or not the prior conviction was for a “crime of violence,” the proper inquiry is “whether the conduct for which the defendant was specifically convicted involved a substantial risk that force may have been used.” In this case aggravated battery was not one of the offenses enumerated in the application note. Thus the trial court properly considered testimony from the defendant’s attorney that the defendant’s prior conviction was based on a plea of expediency to get the defendant out of jail and that the defendant was a bystander who did not engage in any violent acts. Thus the district court did not err in treating the aggravated battery conviction as a nonviolent misdemeanor. U.S. v. Terry, 900 F.2d 1039 (7th Cir. 1990).
7th Circuit holds that residential burglaries are violent felonies for purpose of career offender provision. (525) A drug defendant with a prior record of burglary appealed his sentence of 264 months claiming that his prior record did not consist of violent crimes, as defined in § 4B1.2, the career offender provision. He also insisted that use of the application notes to the section were improper. The Seventh Circuit rejected both arguments. First, residential burglaries have been considered crimes of violence for hundreds of years. Second, the statute authorizing the guidelines states that courts shall consider any pertinent policy statement issued by the Commission. The application notes are such pertinent policy statements. U.S. v. Pinto, 875 F.2d 143 (7th Cir. 1989).
8th Circuit affirms that second-degree burglary is a crime of violence for career offender purposes. (525) Defendant contended that his prior conviction for second-degree burglary was not a “violent felony” as defined by state law, and therefore he should not have been classified as a career offender. The 8th Circuit found this argument foreclosed by the Supreme Court’s decision in Taylor v. U.S., 110 S.Ct. 2143 (1990). Taylor ruled that the definition of the word “burglary” for purposes of sentence enhancement under 18 U.S.C. § 924(c) must have a uniform definition independent of the label employed by state law. Thus, the inclusion of a prior conviction for second-degree burglary in an enhanced sentence calculation was proper. U.S. v. Nimrod, 940 F.2d 1186 (8th Cir. 1991).
8th Circuit determines that residential burglary is a crime of violence for career offender purposes. (525) Defendant contended that his burglaries were not crimes of violence because he entered the dwellings when no one was present. The 8th Circuit rejected this claim, noting that under the commentary to guideline § 4B1.2, burglary is a crime of violence. Moreover, after defendant was sentenced the Sentencing Commission amended the guidelines to specify that burglary is a crime of violence, and another Circuit court agreed. U.S. v. Brunson, 915 F.2d 392 (8th Cir. 1990).
8th Circuit upholds classifying defendant previously convicted of burglary and conspiracy as career offender. (525) Defendant argued that his prior crime of second-degree burglary was not a crime of violence, and therefore it was improper to classify him as a career offender. The 8th Circuit rejected this argument, noting that “the essence of burglary is violating another’s premises. The crime carries with it a distinct risk of injury to the person.” Defendant also argued that since he pled guilty to violating the general conspiracy statute, rather than the drug conspiracy statute, when caught selling LSD, this conviction was not a drug-related offense. The 8th Circuit disagreed, holding that “the undisputed facts” of defendant’s crime, “not the statute he was sentenced under, are determinative.” U.S. v. Smith, 909 F.2d 1164 (8th Cir. 1990).
8th Circuit holds threatening letter was a “crime of violence” under career offender section. (525) Defendant pled guilty to mailing a threatening communication while in custody. 18 U.S.C. § 876. At sentencing he was determined to be a career offender under U.S.S.G. 4B1.1. On appeal, he argued that a threat is a crime of violence under § 4B1.1 only if there is a contemporaneous ability to carry out the threat. The 8th Circuit disagreed. The court held that an essential element of § 876 is that the communication convey a threat to injure, which falls squarely within the definition of a crime of violence contained in 18 U.S.C. § 16. Moreover, even if defendant was correct, he could have carried out his threats. U.S. v. Left Hand Bull, 901 F.2d 647 (8th Cir. 1990).
8th Circuit holds defendant was properly classified as a career offender. (525) Defendant argued that two prior state convictions were improperly used to classify him as a career offender. One prior felony conviction was for distribution of a controlled substance and the other was for assault with intent to inflict serious bodily injury. The 8th Circuit affirmed. It found the distribution offense was properly used because it occurred prior to the charged federal offense. Although the assault offense was only an aggravated misdemeanor under state law the defendant was sentenced to two years. This was properly classified as a felony conviction pursuant to guidelines § 4B1.2, which defines a prior felony conviction as a prior conviction for an offense punishable by . . . imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated a felony.” U.S. v. Thomas, 894 F.2d 996 (8th Cir. 1990).
9th Circuit holds that possession of an unregistered firearm is a violent crime for “career offender” purposes. (525) Although possession of an unregistered firearm does not require the use or threatened use of physical force, it is a crime that “by its nature” involves a substantial risk of physical force against persons or property. Not all firearms must be registered under 26 U.S.C. § 5861(d). Only firearms that Congress has found to be inherently dangerous, such as sawed off shotguns and hand grenades, must be registered. Therefore, the 9th Circuit held that the defendant’s possession of an unregistered sawed-off shotgun was a crime of violence for career offender purposes. U.S. v. Dunn, 946 F.2d 615 (9th Cir. 1991).
9th Circuit holds that ADW and vehicular manslaughter qualify as violent felonies under career offender guideline. (525) The 9th Circuit held that the attempted use of physical force is an element of the offense of assault with a deadly weapon (ADW), and so qualifies as a violent felony under the career offender guideline. In addition “vehicular manslaughter by its nature involves harm to persons, and thus qualifies as a violent felony” under the career offender guideline U.S. v. O’Neal, 937 F.2d 1369 (9th Cir. 1991).
9th Circuit holds that career criminal statute and career offender guideline do not constitute double enhancement. (525) Defendant argued that his sentence was the result of impermissible double enhancement because he was first determined a career criminal under 18 U.S.C. § 924(e) and then a career offender under guideline § 4B1.1. The 9th Circuit rejected the argument, holding that the guidelines are not “a separate statutory provision of penalties” but rather “are intended to provide a narrow sentence range within the range authorized by the statute for the offense of conviction.” Since guideline § 4B1.1 did not provide a penalty or enhancement in addition to what defendant could have received under § 924(e), there was “no double enhancement.” U.S. v. O’Neal, 937 F.2d 1369 (9th Cir. 1991).
9th Circuit holds that “burglary in the first degree using a firearm” is a violent crime for career offender purposes. (525) Using the “categorical” approach of U.S. v. Becker, 919 F.2d 568 (9th Cir. 1990), the 9th Circuit held that the Idaho crime of “burglary in the first degree using a firearm” constituted a crime of violence within the meaning of 18 U.S.C. § 16 and guideline § 4B1.2(1). The court noted that breaking into any building in the dead of night with a criminal intent and wielding a firearm “creates very serious risks to both occupants of the building and law enforcement officials who become aware of the crime and seek to apprehend its perpetrator.” U.S. v. Sherman, 928 F.2d 324 (9th Cir. 1991).
9th Circuit holds that robbery under California law is by definition a crime of violence for career offender purposes. (525) Robbery as defined by California Penal Code § 211 is a crime committed directly against and in the presence of the victim through “force or fear.” Thus, the 9th Circuit found that it is “certainly the kind of crime that presents a serious risk that physical force may be used.” The term “a crime of violence” is defined in the career offender section of the guidelines, § 4B1.2, by reference to 18 U.S.C. § 16. That section describes a crime of violence as an offense that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The commentary to that guideline specifically includes robbery as a crime of violence. Accordingly the 9th Circuit held that robbery under California law is by definition a crime of violence for career offender purposes. U.S. v. McDougherty, 920 F.2d 569 (9th Cir. 1990).
9th Circuit holds that California first degree burglary is a “crime of violence” for career offender purposes. (525) Applying the “categorical” approach of Taylor v. U.S., 110 S.Ct. 2143, 2159 (1990), the 9th Circuit held that first degree burglary of a residence under California Penal Code § 460 is a “crime of violence” within the meaning of 18 U.S.C. § 16(b). The court stated that “the confluence of common sense and precedent lead to the conclusion that the unauthorized daytime entry of the dwelling of another with the intent to commit a larceny or any felony carries with it a substantial risk that force will be used against the person or property of another.” Therefore first degree burglary under California law is a “crime of violence” for purposes of sentence enhancement under guideline § 4B1.1, the career offender guideline. U.S. v. Becker, 919 F.2d 568 (9th Cir. 1990).
9th Circuit concludes that unarmed robbery constitutes crime of violence under career criminal section. (525) Guidelines § 4B1.1 increases the sentence of defendants who are career criminals, a determination that turns in part on whether past offenses were crimes of violence. Defendant argued that his two prior convictions for bank robbery under 18 U.S.C. § 2113(a) should not be counted as crimes of violence because he neither carried a gun nor harmed anyone during the robberies. Judges Schroeder, Hug, and Skopil disagreed. Noting with disapproval that defendant’s argument would require sentencing courts to hold “satellite factual hearings” on the facts underlying past convictions, the court instead analyzed the case by reviewing the statute of conviction for congruence with the guidelines requirement that a crime of violence have as “an element the use, attempted use, or threatened use of physical force against the person of another.” Because 18 U.S.C. § 2113(a) required force, violence, or intimidation to support conviction, the statute defines a crime of violence. The sentencing court discharged its rule 11 responsibilities by advising defendant of the maximum statutory penalty for his crime, even though the court did not advise defendant that he might be sentenced as a career criminal. U.S. v. Selfa, 918 F.2d 749 (9th Cir. 1990).
10th Circuit finds that second degree burglary qualifies as crime of violence under career offender guideline. (525) Defendant asserted that his two prior Missouri State convictions for second degree burglary were not crimes of violence because they did not require as an element of the offense that an innocent person be present in the structure or that a physical injury occur. The 10th Circuit disagreed, finding that whether an offense constitutes a crime of violence is a question of federal law and therefore the court may look beyond the elements of the offense. The court agreed with three other circuit courts that have addressed the issue, holding that burglary of a dwelling is a crime of violence within the career offender section. To hold otherwise would frustrate the guidelines policy of uniformity in sentencing by allowing criminals with similar records to receive vastly different sentences simply because their past crimes were defined differently by different states. U.S. v. Brunson, 907 F.2d 117 (10th Cir. 1990).
11th Circuit holds downward departure cannot be based upon lack of actual violence in career offender’s prior convictions. (525) The district court determined that even if defendant should be classified as a career offender, it would depart downward since defendant’s prior “crimes of violence” did not involve actual violence and no injury resulted. The 11th Circuit rejected this as a ground for a downward departure, finding that the Sentencing Commission considered the distinction between the use of force and the lesser threat of force when it formulated the career offender guidelines. The district court also departed on the grounds that sentencing defendant as a career offender would result in an excessive sentence. The 11th Circuit rejected this as a ground for departure, finding that a court cannot depart because it believes a sentence is excessive. U.S. v. Gonzalez-Lopez, 911 F.2d 542 (11th Cir. 1990).or enhancement in addition to what defendant could have received under § 924(e), there was “no double enhancement.” U.S. v. O’Neal, 937 F.2d 1369 (9th Cir. 1991).
11th Circuit affirms that robbery is crime of violence for career offender purposes. (525) The 11th Circuit affirmed the district court’s determination that defendant’s instant offense — robbery — was a crime of violence for career offender purposes. Section 4B1.2(1)(i), comment note 2, lists robbery as a crime of violence. U.S. v. Graham, 931 F.2d 1442 (11th Cir. 1991).
11th Circuit holds upward departure to treat defendant as a career offender was proper. (525) Defendant qualified for the career offender guidelines, § 4B1.1, in every way except that his numerous prior and present bank robberies and an escape had been combined in two proceedings under Rule 20(a), Fed. R. Crim. P. Guideline § 4A1.2(a)(2) provides that prior sentences in related cases shall be treated as one sentence and that cases are “related” if they were consolidated for trial or sentencing. Thus under the guidelines, defendant had only one prior conviction and one present conviction. However, since the eleven bank robberies and an escape had occurred at different times in two different states, the 11th Circuit upheld an upward departure to treat defendant as a career offender: “We do not believe that the Commission intended that someone with a history such as [defendant’s] should be treated as having only one prior conviction, solely because he is permitted to take advantage of Rule 20(a)’s procedural device.” U.S. v. Dorsey, 888 F.2d 79 (11th Cir. 1989).
11th Circuit rules that burglary of a dwelling is a “crime of violence” under the career offender guidelines. (525) The career offender section of the guidelines, 4B1.2, defines “crime of violence” as it is defined in 18 U.S.C. § 16; this is, any “offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. The commentary to guideline 4B1.1 specifically recognizes that the burglary of a dwelling constitutes a crime of violence. The Eleventh Circuit held that this conclusion was “well founded,” because “the burglary of a dwelling by its nature creates a substantial risk of physical force.” U.S. v. Davis, 881 F.2d 973 (11th Cir. 1989).
D.C. Circuit holds that, absent request, court need not review facts underlying prior crimes of violence. (525) Defendant argued that, before finding he was a career offender, the district court should have looked at the facts underlying his prior robberies to determine whether they were actually crimes of violence. The D.C. Circuit rejected the argument. A district court does have discretion to determine that particular prior offenses were not crimes of violence even if, in general, those offenses are violent and are listed as such by the commentary. However, there is no obligation to review the underlying facts in the absence of a defendant’s request to do so. Here, defense counsel made no such request. U.S. v. Bradshaw, 935 F.2d 295 (D.C. Cir. 1991).
Washington District Court holds that felon’s possession of a firearm is not a crime of violence for career offender purposes. (525) Defendant, who had two prior violent felonies, was convicted of being a felon in possession of a firearm. The District Court held that this was not a crime of violence, despite the 9th Circuit’s opinion in U.S. v. O’Neal, 910 F.2d 663 (9th Cir. 1990), which defined a crime of violence under earlier guidelines as a felony which by its nature involves a substantial risk that physical force may be used. In contrast, the current guidelines define a crime of violence as an offense “that presents a serious potential risk of physical injury to another.” Here, there was no conduct presenting a serious potential risk of physical injury. Police officers searching defendant’s residence on an unrelated charge found the unloaded firearm under a mattress in a bedroom. Defendant made no attempt to use or take possession of the firearm, and no ammunition was found. U.S. v. Coble, 756 F.Supp. 470 (E.D. Wash. 1991).
New York District Court departs upward because defendant did not technically qualify as a career offender. (525) The district court stated that if it had been permitted to consider the underlying circumstances, it would have found that defendant’s possession of the firearm was a crime of violence. It found this a sufficient basis to depart upward from criminal history category IV to criminal history category VI. The court also found that defendant possessed the weapon while engaged in drug trafficking, and rejected defendant’s suggestion that the extent of the departure should be determined by analogy to the guidelines’ two points for possession of a weapon during a drug transaction. To a 30-month sentence the district court added the five-year sentence that Congress made applicable to a defendant who used a weapon in the course of committing a drug offense, and sentenced defendant to 90 months. U.S. v. Hernandez, 753 F.Supp. 1191 (S.D.N.Y. 1990).
New York District Court rules that possession of a firearm by a felon is not a crime of violence. (525) Disagreeing with the 9th Circuit’s opinion in U.S. v. O’Neal, 910 F.2d 663 (9th Cir. 1990), the Southern District of New York ruled that the offense of being a felon in possession of a firearm was not a crime of violence. Although the underlying circumstances did involve violence, the court ruled that it was barred from considering those circumstances. Therefore the court could not sentence defendant as a career offender. U.S. v. Hernandez, 753 F.Supp. 1191 (S.D.N.Y. 1990).
Illinois district court holds that possession of a firearm is not a crime of violence for career offender purposes and departs downward. (525) As of March 1989, the guidelines incorporated the definition of crime of violence contained in 18 U.S.C. § 16. Under that statute, possession of a firearm by a felon is not a crime of violence. Accordingly, District Judge Hart, of the Northern District of Illinois, calculated the defendant’s career offender sentence under guideline 4B1 based on the “offense statutory maximum” for the other offense of which he was convicted, possession of cocaine. See application note 2 to § 4B1.1 effective Nov. 1, 1989. The court then departed downward to the mandatory minimum because treating the defendant as a career offender overrepresented the seriousness of the defendant’s criminal history. U.S. v. Nichols, 740 F.Supp. 1332 (N.D. Ill. 1990).
11th Circuit holds residential burglary qualifies as crime of violence for career offender section. (525) A drug defendant was convicted and sentenced under § 4B1.1, the career offender section. He appealed, claiming that the district court erred in concluding that his prior residential burglary conviction was a crime of violence. He did not challenge a prior drug offense. The 11th Circuit affirmed, holding that a residential burglary was indeed a crime of violence, given the substantial risk of physical force posed by that offense. The court relied upon § 4B1.1. application note 1 to that section, as well as traditional definitions of the crime of burglary. Thus, the burglary and the prior drug offense did satisfy the career offender section requirements. U.S. v. Davis, 881 F.2d 973 (11th Cir. 1989).
D.C. Circuit holds convictions for robbery and armed violence may constitute predicate convictions under career offender section. (525) The D.C. Circuit held that although a defendant’s prior convictions were “crimes of violence” under the terms of § 4B1.2(1) (career offender) and state law, the district court should have inquired into the facts and circumstances of those offenses before classifying the defendant as a career offender. Thus, the sentence was vacated and remanded for inquiry. U.S. v. Baskin, 886 F.2d 383 (D.C. Cir. 1989).
Indiana District Court finds that defendant’s threatening letters were “crimes of violence” under career offender guidelines. (525) Defendant was convicted of threatening the life of the President. She argued that her prior convictions for sending threatening letters were simply “bizarre threats that were never intended to be carried out” and therefore did not constitute “crimes of violence” within the meaning of 18 U.S.C. § 16(a) and the “career offender” section of the guidelines, 4B1.1. The District Court of Indiana rejected the argument, finding defendant to be a career offender because “[r]ightly or wrongly, Congress included offenses that require the threatened use of force, and the court must apply that definition.” U.S. v. Poff, 723 F.Supp. 79 (N.D. Ind. 1989).