United States v. Adkison

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4337
PAULMER LEE ADKISON, a/k/a
Paulmer Lee Adkinson,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-95-167)
Submitted: September 24, 1996
Decided: November 14, 1996
Before WILKINS and LUTTIG, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Hunt L. Charach, Federal Public Defender, C. Cooper Fulton, Assis-
tant Federal Public Defender, Charleston, West Virginia, for Appel-
lant. Rebecca A. Betts, United States Attorney, Margaret A. Hickey,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Paulmer Adkison pled guilty to illegally possessing a firearm as a
convicted felon.1 The district court sentenced Adkison to a term of
seventy-seven months imprisonment with three years supervised
release and a $1000 fine. Adkison appeals his sentence, alleging that
the district court erred in finding that his prior West Virginia state
conviction for arson in the fourth degree was a crime of violence.
Finding no reversible error, we affirm.
Adkison argues that his conviction for arson in the fourth degree
was not a crime of violence because the West Virginia offense does
not contain an element that requires a fire to be set or any damage be
done to persons or property; thus, Adkison claims that he was not
convicted of arson, but only attempted arson. Accordingly, Adkison
contends that attempted arson does not satisfy the requirement of
United States Sentencing Commission, Guidelines Manual,
§ 4B1.2(1)(ii), that a serious risk of physical injury to another person
exist for his conviction to be classified as a crime of violence. We
review de novo the district court's decision that this offense is a crime
of violence.2
The federal sentencing guidelines define a "crime of violence" as
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
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1 18 U.S.C. §§ 922(g)(1), 924(a)(2) (1994).
2 See United States v. Wilson, 951 F.2d 586, 588 (4th Cir. 1991), cert.
denied, 504 U.S. 951 (1992).
2
(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.3
Adkison's distinction between arson and attempted arson is immate-
rial. Arson or attempted arson, by their very nature, pose serious
potential risk of physical injury to other persons. Just as this court
found that attempted breaking and entering presents a serious poten-
tial risk of physical injury to another, and thus constitutes a violent
felony for purposes of 18 U.S.C. § 924(e) (1994),4 Adkison's crime,
whether characterized as arson or attempted arson, jeopardized the
safety and lives of other individuals. Adkison's inability to consum-
mate the arson does not negate the risk of harm. Moreover, the only
other circuit to address this issue, the Eleventh Circuit, agrees that
attempted arson is a crime of violence.5
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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3 USSG § 4B1.2(1) (Nov. 1995).
4 United States v. Custis, 988 F.2d 1355, 1364 (4th Cir. 1993),
affirmed, 511 U.S. 485 (1994).
5 See United States v. Mendoza-Cecelia, 963 F.2d 1467, 1479 (11th
Cir.), cert. denied, 506 U.S. 964 (1992).
3