U.S. v. Morrison, 91-10491
Decision Date | 29 July 1992 |
Docket Number | No. 91-10491,91-10491 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Dennis Jay MORRISON, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Will B. Mattly, Asst. U.S. Atty., Reno, Nev., for plaintiff-appellee.
Lawrence D. Wishart, Reno, Nev., for defendant-appellant.
Appeal from the United States District Court for the District of Nevada.
Before: TANG, BEEZER, and KOZINSKI, Circuit Judges.
Dennis Jay Morrison appeals the sentence imposed after his guilty plea to bank robbery, in violation of 18 U.S.C. § 2113(a). Morrison contends that the district court erred by sentencing him as a career offender because his prior conviction for aiding and abetting malicious destruction by use of explosives, in violation of 18 U.S.C. § 844(i), was not a crime of violence within the meaning of U.S.S.G. § 4B1.1. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo the district court's application of the career offender provisions of the Sentencing Guidelines. United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1118, 113 L.Ed.2d 226 (1991). To be sentenced as a career offender, a defendant must have at least two prior felony convictions for crimes of violence or controlled substance offenses. U.S.S.G. § 4B1.1. A crime of violence includes "any offense under federal or state law punishable by imprisonment for a term exceeding one year that ... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(1)(ii).
Here, the prior malicious destruction conviction involved the fire bombing of a truck. Morrison contends that offenses that involve use of explosives are not crimes of violence unless they also involve conduct that presents a serious potential risk of physical injury to another, and that the malicious destruction offense did not present such a risk.
Morrison cites Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), for the proposition that, for purposes of sentencing provisions such as section 4B1.2(1)(ii), all burglaries are not crimes of violence. See Taylor, 495 U.S. at 598-602, 110 S.Ct. at 2158-2160 ( ); United States v. Sherman, 928 F.2d 324, 326-27 (9th Cir.) (same categorical approach applies in interpretation of section 4B1.2(1)(ii)), cert. denied, --- U.S. ----, 112 S.Ct. 133, 116 L.Ed.2d 100 (1991). Arguing by analogy, Morrison contends that not all crimes involving use of explosives are crimes of violence. He contends that he was convicted under a part of 18 U.S.C. § 844(i) that governs explosives offenses involving only damage to property, and therefore he was not convicted of an offense involving serious potential risk of physical injury to another. See 18 U.S.C. § 844(i) ( ).
We read Taylor to hold that while not all crimes resembling burglary are burglary, once a crime has been defined as burglary, it necessarily is a crime of violence. See Taylor, 495 U.S. at 597, 110 S.Ct. at 2157 () (18 U.S.C. § 924(e), which provides that a prior conviction is a crime of violence if it "is burglary") . Consistent with the categorical approach adopted by the...
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