United States v. Wilson , 12 F. App'x 172 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4806
LEON WILSON, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(CR-00-52)
Submitted: May 22, 2001
Decided: June 19, 2001
Before WILKINS, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Kevin B. Burgess, HAMILTON, BURGESS, YOUNG & POLLARD,
Fayetteville, West Virginia, for Appellant. Rebecca A. Betts, United
States Attorney, John L. File, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WILSON
OPINION
PER CURIAM:
Leon Wilson, Jr., appeals his 71-month sentence for possession of
a firearm by a convicted felon, 18 U.S.C.A. §§ 922(g)(1), 924(a)(2)
(West Supp. 2000). Wilson claims that his base offense level was
improperly set at 24, based on his having two prior felony convictions
for crimes of violence. He contends first that the prior offenses were
not crimes of violence. Second, Wilson asserts that, because the
offenses were related, they should count only as one prior felony con-
viction. We affirm.
A defendant convicted of being a felon in possession of a firearm
is assigned a base offense level of 24 if he has "at least two prior fel-
ony convictions of . . . a crime of violence." U.S. Sentencing Guide-
lines Manual § 2K2.1(a)(2) (1998). In 1994 Wilson was sentenced in
Michigan to five years probation on two counts of attempted third
degree criminal sexual conduct. The district court determined that
these convictions qualified as the requisite two predicate violent felo-
nies.
We agree with the district court that attempted third degree sexual
assault in Michigan constitutes a "crime of violence" under the guide-
lines. See USSG § 4B1.2(a)(2). Using a categorical approach (looking
first to the fact of conviction, then to the definition of the prior
offense) to decide whether the Michigan offenses were crimes of vio-
lence was not possible because of the statute’s ambiguity. The district
court therefore made its determination based upon the charging
document—here, the indictment. See United States v. Kirksey, 138
F.3d 120, 122-24 (4th Cir. 1998). The indictment, which charged Wil-
son with three separate counts of first degree criminal sexual conduct,
stated that Wilson had engaged in sexual intercourse with a minor,
age 13-14. The district court concluded that such activity presented
a serious risk of injury, including pregnancy and disease. Because the
Michigan indictment charged conduct that presented "a serious poten-
tial risk of physical injury to another," USSG § 4B1.2(a)(2), the dis-
trict court did not err in finding that the two Michigan offenses were
crimes of violence. See also United States v. Sherwood, 156 F.3d 219,
UNITED STATES v. WILSON 3
221-22 (1st Cir. 1998); United States v. Coronado-Cervantes, 154
F.3d 1242 (10th Cir. 1998).
The district court also correctly found that the Michigan offenses
constituted two predicate violent felonies under the guidelines. The
number of prior felony convictions for crimes of violence depends
upon whether criminal history points were assigned for each prior
conviction. USSG § 2K2.1, comment. (n.5). The Michigan sentences
were "related," USSG § 1B1.3, comment. (n.9(A)), which ordinarily
would require that they be treated as one prior sentence. USSG
§ 4A1.2(a)(1)-(2). However, because the prior sentences were for
crimes of violence, Wilson properly was assigned a second criminal
history point. USSG § 4A1.1(f). He therefore had the requisite two
prior felonies under USSG § 2K2.1(a)(2).
We therefore affirm. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before us and argument would not aid the decisional process.
AFFIRMED