United States v. Bobby Eugene McGee

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No. 95-1626
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United States of America, *
*
Appellee, *
*
v. *
*
Bobby Eugene McGee, *
*
Appellant. *
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No. 95-1699
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United States of America, *
*
Appellee, *
* Appeals from the United States
v. * District Court for the
* Southern District of Iowa.
George Charles Strable, Sr., *
* [UNPUBLISHED]
Appellant. *
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No. 95-2352
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United States of America, *
*
Appellee, *
*
v. *
*
Kelly Robert Hilpipre, *
*
Appellant. *
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Submitted: April 30, 1996
Filed: May 8, 1996
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Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Bobby Eugene McGee, George Charles Strable, and Kelly Robert Hilpipre
pleaded guilty in the district court1 to conspiring to distribute and to
possessing with intent to distribute cocaine, methamphetamine, and
marijuana, in violation of 21 U.S.C. § 846. Hilpipre also pleaded guilty
to being a felon in possession of a firearm and attempting to escape from
federal custody, in violation of 18 U.S.C. §§ 922(g)(1) and 751(a). In
this consolidated appeal, McGee and Strable challenge their sentences;
Hilpipre challenges a proceeding collateral to his conviction. We affirm.
I. STRABLE
At sentencing, the district court concluded that Strable is a career
offender; granted him a two-level reduction for accepting responsibility;
granted the government's motion for a substantial-assistance departure from
the applicable Guidelines range of 168 to 210 months; found no other
grounds for departure; and sentenced Strable to 114 months in prison.
Strable contends that the district court erred in treating him as a
career offender. We disagree. As pertinent here, a defendant is a career
offender if he has at least two prior convictions of a crime of violence.
U.S.S.G. § 4B1.1. A "crime of violence" includes an offense under state
law punishable by a prison term of more than a year that "is burglary of
a dwelling . . . or otherwise involves conduct that presents a serious
potential risk of physical injury to another." U.S.S.G. § 4B1.2.
Strable's prior conviction for attempted burglary of a commercial building
qualifies as a
1
The HONORABLE RONALD E. LONGSTAFF, United States District
Judge for the Southern District of Iowa.
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crime of violence. See United States v. Hascall, 76 F.3d 902, 904 (8th
Cir. 1996) (burglary of commercial building seriously risks physical injury
to another); United States v. Carpenter, 11 F.3d 788, 790 (8th Cir. 1993),
cert. denied, 114 S. Ct. 1570 (1994) ("crime of violence" includes
attempts).
Turning to Strable's remaining contentions, the district court did
not clearly err in awarding Strable a two-level reduction for acceptance
of responsibility, rather than a three level reduction, because he
absconded for three months after agreeing to plead guilty. See United
States v. Thompson, 60 F.3d 514, 517 (8th Cir. 1995). Strable failed to
prove that he is entitled to a mitigating role reduction under U.S.S.G.
§ 3B1.2. See Thompson, 60 F.3d at 517. He did not argue to the district
court that he deserves a departure under U.S.S.G. § 4A1.3 because his
criminal history was overstated, and the court's failure to grant that
departure was not plain error. See Fritz v. United States, 995 F.2d 136,
137 (8th Cir. 1993), cert. denied, 114 S. Ct. 887 (1994). Finally, we may
not review either the district court's discretionary refusal to depart, see
United States v. Jackson, 56 F.3d 959, 960 (8th Cir. 1995), or the extent
of its substantial-assistance departure, see United States v. Goodwin, 72
F.3d 88, 91 (8th Cir. 1995).
II. MCGEE
At sentencing, the district court concluded that McGee is a career
offender, granted the government's motion for a substantial-assistance
departure, and sentenced him to 178 months in prison. On appeal, McGee
contends the district court erred in treating him as a career offender.
However, he does not contest use of two prior convictions for aggravated
robbery and attempted arson, and in any event, his two prior attempted
burglary convictions are qualifying offenses under Hascall, 76 F.3d at 903-
04, and Carpenter, 11 F.3d at 790.
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III. HILPIPRE
The district court granted the government's motion for a substantial-
assistance departure and sentenced Hilpipre to 113 months in prison. On
appeal, Hilpipre argues for the first time that his constitutional rights
were violated when he was denied appointed counsel at a state court civil
forfeiture hearing that Hilpipre alleges was a critical phase of his
subsequent federal conviction. This issue was not raised in the district
court, turns on facts not part of the district court record, and was waived
by Hilpipre's guilty plea.
The judgments of the district court are affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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