Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

MEMORANDUM^** 

Timothy Batten appeals his sentence pursuant to the United States Sentencing Guidelines ("Guidelines") following his guilty plea for bank robbery, in violation of 18 U.S.C. § 2113(a). Batten contends that the district court erred by sentencing him as a career offender pursuant to U.S.S.G. Sec. 4B1.1 because his prior conviction for mailing a threat to kill the President was not a "crime of violence" within the meaning of the career offender provision. We have jurisdiction under 28 U.S.C. § 1291 and affirm the sentence.

This court reviews de novo the district court's determination that a defendant is a career offender under the Guidelines. United States v. Williams, 891 F.2d 212, 214 (9th Cir. 1989), cert. denied, 110 S. Ct. 1496 (1990). A defendant is a career offender and subject to a enhanced sentence if:

(1) the defendant was at least eighteen years of age at the time of the instant offense; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. Sec. 4B1.1. A crime of violence under the Guidelines includes any offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another...." U.S.S.G. Sec. 4B1.2 (emphasis added). In determining whether an offense constitutes a "crime of violence," the district court must apply a categorical analysis by examining the statutory language defining the offense. United States v. Becker, 919 F.2d 568, 570 (9th Cir. 1990), cert. denied, 111 S. Ct. 1118 (1991). The underlying circumstances of the offense of conviction are irrelevant for the purposes of determining career offender status. See id.

Here, Batten contends that his prior conviction for mailing a threat to kill the President, in violation of 18 U.S.C. § 871, was not a "crime of violence." 18 U.S.C. § 871 provides, in part:

"Whoever knowingly and willfully deposits for conveyance in the mail ... any letter ... containing any threat to take the life of ..., or to inflict bodily harm upon the President of the United States ... shall be fined not more than $1000 or imprisoned not more than five years, or both." 18 U.S.C. § 871(a).

An essential element of an offense under section 871 is the threat to kill or injure the President. U.S.S.G. Sec. 4B1.2(1) (i) defines a "crime of violence" as an offense that has as an element the threatened use of force against another person. Therefore, a person convicted of mailing a threat to kill the president under section 871 has been convicted of a "crime of violence" within the meaning the Guidelines. See United States v. McCaleb, 908 F.2d 176, 177 (7th Cir. 1990) (offense under section 871 is "crime of violence" under career offender provision); Cf. United States v. Selfa, 918 F.2d 749, 751 (9th Cir.) (unarmed robbery under 18 U.S.C. § 2113(a) is "crime of violence"), cert. denied, 111 S. Ct. 521 (1990). The district court did not err by classifying Batten as a career offender. See Selfa, 918 F.2d at 752.

AFFIRMED.