United States v. Jamie Rabb ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-11078 SEPTEMBER 17, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00196-CR-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMIE RABB,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(September 17, 2007)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Jamie Larell Rabb appeals the 151-month sentence he received following his
guilty plea to knowingly and intentionally possessing with the intent to distribute
crack cocaine in violation of 21 U.S.C. § 841(a)(1), and being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). On appeal, Rabb argues that the
district court incorrectly classified his 1995 conviction for discharging a firearm
into a dwelling as a crime of violence, for the purposes of the career offender
provision of U.S.S.G. § 4B1.1. Rabb bases this argument on the statute defining
his offense, § 13A-11-61(a) of the Alabama Code, and its distinction between
discharges in occupied dwellings and discharges in unoccupied dwellings, for
sentencing purposes. We review the preliminary determination that a prior
conviction qualifies as a “crime of violence” de novo. United States v. Ortiz-
Delgado, 451 F.3d 752, 754 (11th Cir. 2006). After careful review, we affirm.
A defendant is classified as a career offender if the defendant was at least 18
years of age at the time of the commission of the instant offense, the instant offense
was a crime of violence or a controlled substance offense, and the defendant has at
least two prior convictions for crimes of violence or controlled substance offenses.
U.S.S.G. § 4B1.1(a). Section 4B1.2, in turn, defines the term “crime of violence”
as including, inter alia, “any offense punishable by a term of imprisonment
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(a).
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In United States v. McGill, 450 F.3d 1276, 1280 (11th Cir. 2006), we
observed that the definition of conduct that presents “a serious potential risk of
physical injury to another,” within the meaning of § 4B1.2(a)(2), is broadly
interpreted “to include crimes that do not fit neatly into a category of hostile,
aggressive acts.” We noted that “the specific language of § 4B1.2(a)(2) concerns
the potential risk of physical injury rather than the actual use of force against
another. . .” Id. at 1281. In determining whether a felony is a crime of violence,
for purposes of § 4B1.2(a)(2), we need consider only whether the conduct
proscribed creates a substantial risk of physical injury to another. Id. at 1282. We
need not find a high probability of harm to another person, but rather a mere
possibility that harm to another person could occur is enough under the Guideline.
United States v. Searcy, 418 F.3d 1193, 1197 (11th Cir. 2005), cert. denied, 126
S.Ct. 1107 (2006).
The Alabama statute under which Rabb was convicted provides that “[n]o
person shall shoot or discharge a firearm, explosive or other weapon which
discharges a dangerous projectile into any occupied or unoccupied dwelling or
building or railroad locomotive or railroad car, aircraft, automobile, truck or
watercraft in this state.” Ala. Code § 13A-11-61(a) (emphasis added). The statute
makes no distinction between occupied and unoccupied dwellings, for purposes of
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defining the crime. Although the statute goes on to make the discharge into an
occupied dwelling a Class B felony, while the same act into an unoccupied
dwelling is a Class C felony, the distinction is made for sentencing purposes only.
See Ala. Code § 13A-11-61. Thus, a defendant commits the offense proscribed by
§ 13A-11-61, whether the dwelling is occupied or not, and the proscribed offense
is a crime of violence, within the meaning of U.S.C. § 4B1.2(a)(2), because there is
a potential risk of physical injury, which is the only showing our caselaw requires.
We are unpersuaded by any of Rabb’s other arguments. Accordingly, we affirm.
AFFIRMED.
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