United States v. Wood

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0136P (6th Cir.)
File Name: 00a0136p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

UNITED STATES OF AMERICA,

Plaintiff-Appellee,


No. 98-2243
v.

>
JEROME L. WOOD, 
Defendant-Appellant. 
1
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 98-80147—Lawrence P. Zatkoff, Chief District Judge.
Argued: December 10, 1999
Decided and Filed: April 17, 2000
Before: JONES, COLE, and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Arthur Jay Weiss, ARTHUR JAY WEISS &
ASSOCIATES, Farmington Hills, Michigan, for Appellant.
David J. Debold, ASSISTANT UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:
Arthur Jay Weiss, ARTHUR JAY WEISS & ASSOCIATES,
Farmington Hills, Michigan, for Appellant. David J. Debold,
ASSISTANT UNITED STATES ATTORNEY, Detroit,
Michigan, for Appellee.
1
2 United States v. Wood No. 98-2243 No. 98-2243 United States v. Wood 7
_________________ III.
OPINION We conclude that Alabama’s robbery in the third degree is
_________________ a “crime of violence” because robbery is an enumerated
offense and because the statutory definition for the offense
NATHANIEL R. JONES, Circuit Judge. Jerome Wood has as an element the use, attempted use, or threatened use of
appeals the “career offender” enhancement of his sentence, physical force against the person of another. The district
which the district court imposed following Wood’s guilty plea court thus properly determined that Wood is a “career
to armed bank robbery. Specifically, Wood challenges the offender” under the Sentencing Guidelines. Accordingly, we
district court’s determination that his prior Alabama state AFFIRM the district court’s judgment.
conviction for robbery in the third degree qualifies as one of
the two “predicate acts” required for career offender
enhancement. Wood argues that his Alabama offense is not
a “crime of violence” within the meaning of the career
offender provision of the Sentencing Guidelines, and that the
district court erred in enhancing his sentence. For the
following reasons, we reject Wood’s argument and AFFIRM
the district court’s judgment.
I.
Jerome Wood, along with his cousin Jimmie Jackson, was
arrested in 1998 for allegedly robbing a bank. Wood was
charged with armed bank robbery in violation of 18 U.S.C.
§§ 2113(a) and (d). Wood initially pleaded not guilty but
later entered into a Rule 11 plea agreement. The presentence
report detailed Wood’s lengthy criminal record, including
breaking and entering an occupied dwelling in 1978, grand
theft in 1980, another grand theft in 1984 (with Jimmie
Jackson), larceny over $100 in 1991 (with Jimmie Jackson),
domestic violence in 1992, robbery in the third degree in
1993, possession of drug paraphernalia (crack pipe) in 1997,
and another armed robbery in 1998, ten days after the instant
offense (with Jimmie Jackson). The report also noted that in
1998, Wood was suspected, although ultimately not
prosecuted, in a number of other bank robberies and
aggravated robberies.
The probation officer who prepared the presentence report
recommended a “career offender” enhancement under
U.S.S.G. § 4B1.1 after determining that Wood had two prior
6 United States v. Wood No. 98-2243 No. 98-2243 United States v. Wood 3
robbery, however, the offense still clearly meets Wilson’s convictions for crimes of violence. The probation officer
second criteria. If an offense is not one of the specifically recommended a final offense level of 31, which reflected a
enumerated crimes of violence, a court’s inquiry is then three-level reduction for Wood’s acceptance of responsibility.
limited to an examination of the statutory elements of the The corresponding sentencing range was 188-235 months.
defendant’s prior offense. See United States v. Arnold, 58 Wood reserved the right to challenge the applicability of the
F.3d 1117, 1124 (6th Cir. 1995). With this “categorical career offender guideline.
approach” to determining whether a prior offense constitutes
a crime of violence, only if the statute does not clearly The district court ultimately adopted the probation officer’s
establish that the offense involves the “use, attempted use, or recommendation, finding that Wood had two prior
threatened use of physical force” may the court then look at convictions for crimes of violence - the 1978 breaking and
the charge in the indictment to which the defendant pled entering and the 1993 robbery in the third degree.1 The court
guilty or was adjudged guilty to determine if the offense sentenced him to the bottom of his guideline range (188
involved a serious potential risk of physical injury to others. months).
See id. In the case of a guilty plea, the district court may also
consider the plea agreement relating to the prior offense. Id. II.
According to the Alabama Criminal Code, effective January This Court reviews de novo a lower court’s determination
1, 1990, a person commits robbery in the third degree if in the that a defendant is a “career offender” for sentencing
course of committing a theft he: purposes. See United States v. Garza, 999 F.2d 1048, 1051
(6th Cir. 1993). A defendant qualifies as a career offender for
(1) uses force against the person of the owner or any sentencing purposes if, inter alia, the defendant has at least
person present with intent to overcome his physical two prior felony convictions of either a crime of violence or
resistance or physical power of resistance; or a controlled substance. U.S.S.G. § 4B1.1. According to
Wood, the district court erroneously counted his 1993
(2) threatens the imminent use of force against the person Alabama state conviction for robbery in the third degree as a
of the owner or any person present with intent to compel “crime of violence” for sentencing purposes. We disagree.
acquiescence to the taking of or escaping with the
property. A “crime of violence” is defined by the Sentencing
Guidelines as:
Ala. Code. § 13A-8-43 (1993). The statutory definition
clearly indicates that Alabama’s robbery in the third degree
offense has as an element “the use, attempted use, or 1
threatened use of physical force against a person.” There is The government states that although the breaking and entering
offense occurred almost 20 years prior to the instant offense, Wood
simply no ambiguity in the language of the Alabama statute: skipped bond and was not apprehended again in that jurisdiction until 12
to be guilty of robbery in the third degree a defendant must years later. Thus, his 183-day sentence was imposed within the 10-year
either use force or threaten the imminent use of force against window for prior sentences of less than 13 months. See U.S.S.G.
a person sometime during the commission of a theft. Wood’s ' 4A1.2(e). Wood concedes that this conviction qualifies as a crime of
argument that robbery in the third degree is not a crime of violence for career offender sentencing purposes.
violence because it could be committed without force Wood=s 1998 armed robbery conviction in state court, however, could
not qualify as one of the two career offender predicates because the
therefore is meritless. conviction occurred after Wood committed the instant offense. See
U.S.S.G. ' 4B1.2(c).
4 United States v. Wood No. 98-2243 No. 98-2243 United States v. Wood 5
[A]ny offense under federal or state law punishable by address whether the offense is one of the specifically
imprisonment for a term exceeding one year that -- (1) enumerated crimes of violence, but instead focuses on the
has as an element the use, attempted use, or threatened statutory elements of the offense. Wood contends that the
use of physical force against the person of another, or (2) Alabama statute proscribes conduct which does not
is burglary of a dwelling, arson, or extortion, involves necessarily have to involve violence, threatened or actual,
use of explosives, or otherwise involves conduct that “against the person of another” as required by U.S.S.G.
presents a serious potential risk of physical injury to § 4B1.2(a). Rather, argues Wood, the robbery offense can be
another. committed even though the force or threat of force can be
directed towards the perpetrator’s flight as opposed to the
U.S.S.G. § 4B1.2(a). The commentary clarifies this person of another. Wood concludes that for this reason the
definition: Alabama statute is an improper predicate for a § 4B1.2
enhancement.
“Crime of violence” includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses, Wood misses a critical point. Robbery is one of the
robbery, arson, extortion, extortionate extension of enumerated crimes of violence. See U.S.S.G. § 4B1.2,
credit, and burglary of a dwelling. Other offenses are comment. (n. 2). The Sentencing Guidelines do not
included as crimes of violence if (A) that offense has as distinguish between first, second, or third degrees of offenses.
an element the use, attempted use, or threatened use of Furthermore, the language in Wilson is written in the
physical force against the person of another, or (B) the disjunctive, see 168 F.3d at 927; therefore, it is not necessary
conduct set forth (i.e., expressly charged) in the count of for Wood’s prior conviction to meet all three criteria
which the defendant was convicted . . . by its very nature, articulated in Wilson as a means of determining a “crime of
presented a serious potential risk of physical injury to violence.” Thus, if a prior conviction satisfies any of the
another. three criteria it is a crime of violence for sentencing purposes.
Wood’s conviction appears to meet the first criteria because
U.S.S.G. § 4B1.2, comment. (n.1)(emphasis added). “robbery” is among those enumerated in the Sentencing
Guidelines as a “crime of violence.”
This circuit has interpreted § 4B1.2 and its commentary as
authorizing three ways in which a prior conviction could be However, a state’s decision to label certain criminal
considered a “crime of violence:” 1) if the conviction is for a conduct “robbery” may not always be dispositive of whether
crime that is among those specifically enumerated in the the conduct constitutes a “crime of violence” under the
guidelines; 2) if it is for a crime that, although not specifically Sentencing Guidelines. Cf. Taylor v. United States, 495 U.S.
enumerated, has as an element of the offense the use, 575, 590-92 (1990) (concluding that sentencing enhancements
attempted use, or threatened use of physical force; or 3) if, for prior burglary convictions pursuant to 18 U.S.C. § 924(e)
although neither specifically enumerated nor involving must depend on a uniform federal definition of “burglary”
physical force as an element of the offense, the crime rather than on the definition of burglary adopted by the state
involved conduct posing a serious potential risk of physical of conviction, and also noting that there is a general
injury to another. See United States v. Wilson, 168 F.3d 916, presumption against interpreting federal criminal laws so as
927 (6th Cir. 1999). to make their application dependent on state law). Even
assuming that Alabama’s robbery in the third degree
Wood argues that his prior conviction for robbery in the somehow does not fall under the enumerated offense of
third degree does not meet any of these criteria. He does not