United States v. Wood

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0136P (6th Cir.)

File Name: 00a0136p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



UNITED STATES OF AMERICA,



Plaintiff-Appellee,





No. 98-2243

v.



>

JEROME L. WOOD, 

Defendant-Appellant. 

1

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 98-80147—Lawrence P. Zatkoff, Chief District Judge.

Argued: December 10, 1999

Decided and Filed: April 17, 2000

Before: JONES, COLE, and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Arthur Jay Weiss, ARTHUR JAY WEISS &

ASSOCIATES, Farmington Hills, Michigan, for Appellant.

David J. Debold, ASSISTANT UNITED STATES

ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:

Arthur Jay Weiss, ARTHUR JAY WEISS & ASSOCIATES,

Farmington Hills, Michigan, for Appellant. David J. Debold,

ASSISTANT UNITED STATES ATTORNEY, Detroit,

Michigan, for Appellee.

1

2 United States v. Wood No. 98-2243 No. 98-2243 United States v. Wood 7

_________________ III.

OPINION We conclude that Alabama’s robbery in the third degree is

_________________ a “crime of violence” because robbery is an enumerated

offense and because the statutory definition for the offense

NATHANIEL R. JONES, Circuit Judge. Jerome Wood has as an element the use, attempted use, or threatened use of

appeals the “career offender” enhancement of his sentence, physical force against the person of another. The district

which the district court imposed following Wood’s guilty plea court thus properly determined that Wood is a “career

to armed bank robbery. Specifically, Wood challenges the offender” under the Sentencing Guidelines. Accordingly, we

district court’s determination that his prior Alabama state AFFIRM the district court’s judgment.

conviction for robbery in the third degree qualifies as one of

the two “predicate acts” required for career offender

enhancement. Wood argues that his Alabama offense is not

a “crime of violence” within the meaning of the career

offender provision of the Sentencing Guidelines, and that the

district court erred in enhancing his sentence. For the

following reasons, we reject Wood’s argument and AFFIRM

the district court’s judgment.

I.

Jerome Wood, along with his cousin Jimmie Jackson, was

arrested in 1998 for allegedly robbing a bank. Wood was

charged with armed bank robbery in violation of 18 U.S.C.

§§ 2113(a) and (d). Wood initially pleaded not guilty but

later entered into a Rule 11 plea agreement. The presentence

report detailed Wood’s lengthy criminal record, including

breaking and entering an occupied dwelling in 1978, grand

theft in 1980, another grand theft in 1984 (with Jimmie

Jackson), larceny over $100 in 1991 (with Jimmie Jackson),

domestic violence in 1992, robbery in the third degree in

1993, possession of drug paraphernalia (crack pipe) in 1997,

and another armed robbery in 1998, ten days after the instant

offense (with Jimmie Jackson). The report also noted that in

1998, Wood was suspected, although ultimately not

prosecuted, in a number of other bank robberies and

aggravated robberies.

The probation officer who prepared the presentence report

recommended a “career offender” enhancement under

U.S.S.G. § 4B1.1 after determining that Wood had two prior

6 United States v. Wood No. 98-2243 No. 98-2243 United States v. Wood 3

robbery, however, the offense still clearly meets Wilson’s convictions for crimes of violence. The probation officer

second criteria. If an offense is not one of the specifically recommended a final offense level of 31, which reflected a

enumerated crimes of violence, a court’s inquiry is then three-level reduction for Wood’s acceptance of responsibility.

limited to an examination of the statutory elements of the The corresponding sentencing range was 188-235 months.

defendant’s prior offense. See United States v. Arnold, 58 Wood reserved the right to challenge the applicability of the

F.3d 1117, 1124 (6th Cir. 1995). With this “categorical career offender guideline.

approach” to determining whether a prior offense constitutes

a crime of violence, only if the statute does not clearly The district court ultimately adopted the probation officer’s

establish that the offense involves the “use, attempted use, or recommendation, finding that Wood had two prior

threatened use of physical force” may the court then look at convictions for crimes of violence - the 1978 breaking and

the charge in the indictment to which the defendant pled entering and the 1993 robbery in the third degree.1 The court

guilty or was adjudged guilty to determine if the offense sentenced him to the bottom of his guideline range (188

involved a serious potential risk of physical injury to others. months).

See id. In the case of a guilty plea, the district court may also

consider the plea agreement relating to the prior offense. Id. II.

According to the Alabama Criminal Code, effective January This Court reviews de novo a lower court’s determination

1, 1990, a person commits robbery in the third degree if in the that a defendant is a “career offender” for sentencing

course of committing a theft he: purposes. See United States v. Garza, 999 F.2d 1048, 1051

(6th Cir. 1993). A defendant qualifies as a career offender for

(1) uses force against the person of the owner or any sentencing purposes if, inter alia, the defendant has at least

person present with intent to overcome his physical two prior felony convictions of either a crime of violence or

resistance or physical power of resistance; or a controlled substance. U.S.S.G. § 4B1.1. According to

Wood, the district court erroneously counted his 1993

(2) threatens the imminent use of force against the person Alabama state conviction for robbery in the third degree as a

of the owner or any person present with intent to compel “crime of violence” for sentencing purposes. We disagree.

acquiescence to the taking of or escaping with the

property. A “crime of violence” is defined by the Sentencing

Guidelines as:

Ala. Code. § 13A-8-43 (1993). The statutory definition

clearly indicates that Alabama’s robbery in the third degree

offense has as an element “the use, attempted use, or 1

threatened use of physical force against a person.” There is The government states that although the breaking and entering

offense occurred almost 20 years prior to the instant offense, Wood

simply no ambiguity in the language of the Alabama statute: skipped bond and was not apprehended again in that jurisdiction until 12

to be guilty of robbery in the third degree a defendant must years later. Thus, his 183-day sentence was imposed within the 10-year

either use force or threaten the imminent use of force against window for prior sentences of less than 13 months. See U.S.S.G.

a person sometime during the commission of a theft. Wood’s ' 4A1.2(e). Wood concedes that this conviction qualifies as a crime of

argument that robbery in the third degree is not a crime of violence for career offender sentencing purposes.

violence because it could be committed without force Wood=s 1998 armed robbery conviction in state court, however, could

not qualify as one of the two career offender predicates because the

therefore is meritless. conviction occurred after Wood committed the instant offense. See

U.S.S.G. ' 4B1.2(c).

4 United States v. Wood No. 98-2243 No. 98-2243 United States v. Wood 5

[A]ny offense under federal or state law punishable by address whether the offense is one of the specifically

imprisonment for a term exceeding one year that -- (1) enumerated crimes of violence, but instead focuses on the

has as an element the use, attempted use, or threatened statutory elements of the offense. Wood contends that the

use of physical force against the person of another, or (2) Alabama statute proscribes conduct which does not

is burglary of a dwelling, arson, or extortion, involves necessarily have to involve violence, threatened or actual,

use of explosives, or otherwise involves conduct that “against the person of another” as required by U.S.S.G.

presents a serious potential risk of physical injury to § 4B1.2(a). Rather, argues Wood, the robbery offense can be

another. committed even though the force or threat of force can be

directed towards the perpetrator’s flight as opposed to the

U.S.S.G. § 4B1.2(a). The commentary clarifies this person of another. Wood concludes that for this reason the

definition: Alabama statute is an improper predicate for a § 4B1.2

enhancement.

“Crime of violence” includes murder, manslaughter,

kidnapping, aggravated assault, forcible sex offenses, Wood misses a critical point. Robbery is one of the

robbery, arson, extortion, extortionate extension of enumerated crimes of violence. See U.S.S.G. § 4B1.2,

credit, and burglary of a dwelling. Other offenses are comment. (n. 2). The Sentencing Guidelines do not

included as crimes of violence if (A) that offense has as distinguish between first, second, or third degrees of offenses.

an element the use, attempted use, or threatened use of Furthermore, the language in Wilson is written in the

physical force against the person of another, or (B) the disjunctive, see 168 F.3d at 927; therefore, it is not necessary

conduct set forth (i.e., expressly charged) in the count of for Wood’s prior conviction to meet all three criteria

which the defendant was convicted . . . by its very nature, articulated in Wilson as a means of determining a “crime of

presented a serious potential risk of physical injury to violence.” Thus, if a prior conviction satisfies any of the

another. three criteria it is a crime of violence for sentencing purposes.

Wood’s conviction appears to meet the first criteria because

U.S.S.G. § 4B1.2, comment. (n.1)(emphasis added). “robbery” is among those enumerated in the Sentencing

Guidelines as a “crime of violence.”

This circuit has interpreted § 4B1.2 and its commentary as

authorizing three ways in which a prior conviction could be However, a state’s decision to label certain criminal

considered a “crime of violence:” 1) if the conviction is for a conduct “robbery” may not always be dispositive of whether

crime that is among those specifically enumerated in the the conduct constitutes a “crime of violence” under the

guidelines; 2) if it is for a crime that, although not specifically Sentencing Guidelines. Cf. Taylor v. United States, 495 U.S.

enumerated, has as an element of the offense the use, 575, 590-92 (1990) (concluding that sentencing enhancements

attempted use, or threatened use of physical force; or 3) if, for prior burglary convictions pursuant to 18 U.S.C. § 924(e)

although neither specifically enumerated nor involving must depend on a uniform federal definition of “burglary”

physical force as an element of the offense, the crime rather than on the definition of burglary adopted by the state

involved conduct posing a serious potential risk of physical of conviction, and also noting that there is a general

injury to another. See United States v. Wilson, 168 F.3d 916, presumption against interpreting federal criminal laws so as

927 (6th Cir. 1999). to make their application dependent on state law). Even

assuming that Alabama’s robbery in the third degree

Wood argues that his prior conviction for robbery in the somehow does not fall under the enumerated offense of

third degree does not meet any of these criteria. He does not