United States v. Marschinke

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________
No. 00-10917
Conference Calendar
________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL ALLEN MARSCHINKE,
Defendant-Appellant.
----------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-40-1-G
------------------------
October 1, 2001
ON PETITION FOR REHEARING
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:
IT IS ORDERED that the petition for panel rehearing is
GRANTED and the opinion previously filed in this case is
WITHDRAWN.
Paul A. Marschinke appeals from his sentence imposed for his
guilty-plea conviction of possession of a firearm by a felon, a
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He contends
that the court erred in increasing his base offense level
pursuant to U.S.S.G. § 2K2.1(a)(2), on the ground that he
allegedly had prior convictions of at least two “crimes of
No. 00-10917
-2–
violence.” He maintains that neither his 1992 breaking-and-
entering conviction in New Mexico nor his 1996 Texas conviction
of unauthorized use of a motor vehicle (“UUMV”) qualified as
“crimes of violence” under the applicable definition of that term
in § 4B1.2.
We recently held that a Texas UUMV conviction categorically
qualifies as a “crime of violence.” United States v. Jackson,
220 F.3d 635, 639 (5th Cir. 2000), cert. denied, 121 S. Ct. 1640
(2001). Moreover, the count of conviction underlying
Marschinke’s New Mexico breaking-and-entering offense expressly
charged that Marschinke broke into a private dwelling. Because
breaking into a private residence almost always presents a
“‘substantial risk that force will be used,’” see United States
v. Claiborne, 132 F.3d 253, 254 (5th Cir. 1998) (citation
omitted), the district court properly considered the New Mexico
conviction to be a “crime of violence.” See § 4B1.2(a)(2)
(“crime of violence” includes offenses that “involve[ ] conduct
that presents a serious potential risk of physical injury to
another”).
AFFIRMED.