Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 282 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Rodney ROWSEY, Defendant-Appellant.

No. 90-30064.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 18, 1990.* Decided Dec. 20, 1990.

Before GOODWIN, Chief Judge, and SCHROEDER and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Ronald Rowsey appeals his sentence under the Sentencing Guidelines following his conviction by guilty plea for four counts of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d), one count of use of a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c), and one count of firearm possession after conviction for at least three violent felonies in violation of 18 U.S.C. §§ 922(g) (1) and 924(e). Rowsey was sentenced to three hundred months imprisonment and five years supervised release.

Rowsey contends that the district court erred by sentencing him as a career offender under U.S.S.G. Sec. 4B1.1 because his prior Alaska state conviction for burglary of a dwelling, which did not meet the common law definition of burglary in that he was not alleged to have committed it in the nighttime, was not a prior violent felony conviction. Rowsey also contends that the facts of this particular burglary conviction do not support the determination that it was a crime of violence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The district court's determination that Rowsey was a career offender, as an interpretation of the Guidelines, is reviewed de novo. United States v. Becker, No. 89-50240, slip op. at 14343 (9th Cir. November 20, 1990); United States v. Williams, 891 F.2d 212, 214 (9th Cir. 1989), cert. denied, 110 S. Ct. 1496 (1990).

The Sentencing Guidelines define the term "career offender" as follows:

A defendant is a career offender if (1) the defendant was at least eighteen years old 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. The term "crime of violence" is defined as follows:

The term "crime of violence" means any offense under federal or state law punishable by imprisonment for a term exceeding one year that--(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) 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. Sec. 4B1.2(1).

First degree burglary under California law, which includes all burglaries of inhabited dwellings but does not include the element of nighttime entry, is a crime of violence for purposes of the career offender provisions of the Guidelines because it "carries with it a substantial risk that force will be used against the person or property of another." Becker, No. 89-50240, slip op. at 14345-50. Accordingly, the lack of the common law element of nighttime entry does not preclude Rowsey's prior conviction for burglary of a dwelling in violation of Alaska Stat. Sec. 11.20.080 (repealed 1978) from constituting a crime of violence under U.S.S.G. Secs. 4B1.2 and 4B1.2(1) (ii).

This court "takes a categorical approach" and does not look to the specific conduct that occasions a prior conviction, but only to the statutory definition of the crime. Becker, No. 89-50240, slip op. at 14343-44; United States v. McDougherty, No. 89-50245, slip op. at 14710 (9th Cir. November 28, 1990); United States v. Selfa, No. 89-10309, slip op. at 15005 (9th Cir. December 7, 1990). Accordingly, Rowsey's contention that his particular burglary conviction was not a crime of violence because the "dwelling" that he entered was actually an unoccupied house undergoing remodeling also lacks merit.

We therefore affirm Rowsey's classification as a career offender and his sentence enhancement.

AFFIRMED.

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4