United States v. Kenneth Jackson

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 99-11540
Non-Argument Calendar
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D. C. Docket No. 98-06229-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH JACKSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 5, 2000)
Before EDMONDSON, COX and HULL, Circuit Judges.
PER CURIAM:
Kenneth Jackson appeals his sentence for possession with intent to distribute
cocaine base in violation of 21 U.S.C. § 841(a)(1). Jackson argues that he was
improperly sentenced as a career offender under U.S.S.G. § 4B1.1 because one of the
prior convictions relied upon by the district court in determining Jackson’s career
offender status was not a “crime of violence” under the definition provided by
U.S.S.G. § 4B1.2(a). Our de novo review of the district court’s legal interpretation
of the Sentencing Guidelines reveals no reversible error. See United States v. Webb,
139 F.3d 1390, 1392 (11th Cir. 1998).
At sentencing, Jackson objected to the inclusion of Jackson’s prior conviction
for possession of a fire bomb, in violation of Fla. Stat. § 806.111, as a crime of
violence under U.S.S.G. § 4B1.2(a). The district court overruled the objection,
concluding that because the offense consisted of possession plus the intent that the fire
bomb be willfully and unlawfully used to damage a structure or property by fire or
explosion, the crime entailed “conduct that presents a serious potential risk of physical
injury to another” within the definition of a crime of violence. U.S.S.G. §
4B1.2(a)(2).
On appeal, Jackson argues that the offense is not a crime of violence because
it did not involve any threat to another person and because it is improper to assume
that any structure or property intended to be damaged under the statute would be in
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proximity to anyone so as to endanger another person. The Government responds that
an analysis of the statute’s elements supports the district court’s conclusion and that
Jackson’s conviction for possession of a fire bomb is analogous to other offenses
considered to be crimes of violence.
The Government has the better argument. A person who intends to damage a
structure or property by fire or explosion clearly participates in conduct that presents
a serious potential risk of physical injury to others. Even assuming that the structure
or property which is the target of a fire bomb is unoccupied, the fire or explosion
creates a danger to others. At a minimum, the fire fighters who are called to put out
a fire or deal with the aftermath of an explosion face a serious risk of physical injury.
In addition, bystanders could be injured, and the fire could spread to occupied
structures, endangering the persons in those structures. Furthermore, U.S.S.G. §
4B1.2(a) specifically lists arson as a crime of violence. Jackson’s contested offense
appears to be nothing more than a subcategory of arson that presents at least the same
potential risk of physical injury to another person as arson.
We conclude that the possession of a fire bomb with the intent to use it to
willfully damage any structure or property by fire or explosion, as defined by Fla.
Stat. § 806.111, is inherently conduct that presents a serious potential risk of physical
injury to another person. Accordingly, the district court properly concluded that
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Jackson’s conviction for possession of a fire bomb under Fla. Stat. § 806.111 was a
crime of violence for career-offender purposes.
AFFIRMED.
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