David E. Schroeder v. Norman E. Rouse

*The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3519
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
Kirk Brian Turner, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 11, 2000
Filed: April 19, 2000
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Before McMILLIAN and FAGG, Circuit Judges, and ROSENBAUM,* District Judge.
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PER CURIAM.
Kirk Brian Turner pleaded guilty to distributing cocaine base in violation of 21
U.S.C. § 841(a)(1). The district court sentenced Turner as a career offender under
U.S. Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1, which applies when the
defendant has "at least two prior felony convictions of . . . a crime of violence," id. §
4B1.1(3), because the court concluded Turner's California conviction for shooting at

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an inhabited dwelling was a crime of violence within the meaning of § 4B1.1. Turner
appeals his sentence, challenging this conclusion.
Section 4B1.2(a) of the Sentencing Guidelines defines a "crime of violence" for
the purposes of § 4B1.1 as "any offense under federal or state law . . . that has as an
element the use, attempted use or threatened use of physical force against the person
of another, or . . . otherwise involves conduct that presents a serious risk of physical
injury to another." Id. § 4B1.2(a). Turner contends his California offense was just a
crime against property rather than a crime of violence as defined in U.S.S.G. §
4B1.2(a). We disagree.
In 1994, Turner was convicted of violating § 246 of the California Penal Code,
which provided: "Any person who shall maliciously and willfully discharge a firearm
at an inhabited dwelling . . . is guilty of felony . . . . As used in this section, 'inhabited'
means currently being used for dwelling purposes, whether occupied or not." The
conviction resulted from Turner's discharge of a gun in a house occupied by Turner's
girlfriend following an angry confrontation with her. We agree with the district court
that Turner's conviction was for a crime of violence within the meaning of § 4B1.1.
See United States v. Weinert, 1 F.3d 889, 891 (9th Cir. 1993) (per curiam) (shooting
at an inhabited dwelling in violation of Cal. Penal Code § 246 is a crime of violence
within the meaning of U.S.S.G. § 4B1.1). We thus affirm Turner's sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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