United States v. Richard Charles Besk

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-3971
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Richard Charles Besk, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: May 5, 1999
Filed: May 26, 1999
___________
Before FAGG, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
PER CURIAM.
Richard Charles Besk pleaded guilty to two counts of bank robbery by force, in
violation of 18 U.S.C. § 2113(a). Based on prior convictions for a second degree
assault, and for burglary, second degree burglary, and attempted second degree
burglary of commercial buildings, the district court1 determined Besk to be a career
offender under United States Sentencing Guidelines Manual § 4B1.1 (1997), and
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
sentenced him as such to 151 months imprisonment and three years supervised release.
On appeal, Besk challenges his classification as a career offender.
We review de novo the district court’s application of the Guidelines. See United
States v. Hascall, 76 F.3d 902, 904 (8th Cir.), cert. denied, 519 U.S. 948 (1996). A
defendant is a career offender if 1) he was at least eighteen when he committed the
instant offense, 2) the instant offense of conviction is a felony that is a drug offense or
crime of violence, and 3) the defendant has at least two prior felony convictions for
drug offenses or crimes of violence. See USSG § 4B1.1.
We conclude the district court properly sentenced Besk as a career offender.
First, it is undisputed that he was at least eighteen when he committed the instant
offenses. Second, Besk’s instant offenses under section 2113(a) are crimes of violence.
See United States v. Wright, 957 F.2d 520, 521 (8th Cir.) , cert. denied, 506 U.S. 856(1992). Third, the district court did not clearly err in determining that Besk’s prior
convictions for burglary, second degree burglary, and attempted second degree burglary
of commercial buildings qualified as predicate crimes of violence. See United States
v. Stevens, 149 F.3d 747, 749 (8th Cir.) (standard of review; concluding third-degree
burglary qualified as predicate crime of violence, as it fit within generic definition of
burglary court has adopted for purposes of applying § 4B1.1), cert. denied, 119 S. Ct.
527 (1998); Hascall, 76 F.3d at 904-05 (second-degree burglary of commercial building
is offense that “otherwise involve[s] conduct that presents a serious potential risk of
physical injury to another,” and thus is a crime of violence (internal quotations
omitted)); see also USSG § 4B1.2(a)(2) and comment. (n.1) (crime of violence includes
attempts to commit qualifying crimes). Though other circuits may hold a different view
regarding commercial burglaries, our court has clearly held them to be crimes of
violence, and any difference in views between the circuits on the issue is grist for the
Supreme Court's mill.
Accordingly, we affirm.
-2-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-