United States of America v. Jerome L. Wood

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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 S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
J EROME L. W OOD ,
Defendant-Appellant.
;>

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No. 98-2243
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.

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2 United States v. Wood No. 98-2243
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OPINION
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NATHANIEL R. JONES, Circuit Judge. Jerome Wood
appeals the “career offender” enhancement of his sentence,
which the district court imposed following Wood’s guilty plea
to armed bank robbery. Specifically, Wood challenges the
district court’s determination that his prior Alabama state
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
No. 98-2243 United States v. Wood 7
III.
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
has as an element the use, attempted use, or threatened use of
physical force against the person of another. The district
court thus properly determined that Wood is a “career
offender” under the Sentencing Guidelines. Accordingly, we
AFFIRM the district court’s judgment.

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6 United States v. Wood No. 98-2243
robbery, however, the offense still clearly meets Wilson’s
second criteria. If an offense is not one of the specifically
enumerated crimes of violence, a court’s inquiry is then
limited to an examination of the statutory elements of the
defendant’s prior offense. See United States v. Arnold, 58
F.3d 1117, 1124 (6th Cir. 1995). With this “categorical
approach” to determining whether a prior offense constitutes
a crime of violence, only if the statute does not clearly
establish that the offense involves the “use, attempted use, or
threatened use of physical force” may the court then look at
the charge in the indictment to which the defendant pled
guilty or was adjudged guilty to determine if the offense
involved a serious potential risk of physical injury to others.
See id. In the case of a guilty plea, the district court may also
consider the plea agreement relating to the prior offense. Id.
According to the Alabama Criminal Code, effective January
1, 1990, a person commits robbery in the third degree if in the
course of committing a theft he:
(1) uses force against the person of the owner or any
person present with intent to overcome his physical
resistance or physical power of resistance; or
(2) threatens the imminent use of force against the person
of the owner or any person present with intent to compel
acquiescence to the taking of or escaping with the
property.
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
threatened use of physical force against a person.” There is
simply no ambiguity in the language of the Alabama statute:
to be guilty of robbery in the third degree a defendant must
either use force or threaten the imminent use of force against
a person sometime during the commission of a theft. Wood’s
argument that robbery in the third degree is not a crime of
violence because it could be committed without force
therefore is meritless.
No. 98-2243 United States v. Wood 3
1The government states that although the breaking and entering
offense occurred almost 20 years prior to the instant offense, Wood
skipped bond and was not apprehended again in that jurisdiction until 12
years later. Thus, his 183-day sentence was imposed within the 10-year
window for prior sentences of less than 13 months. See U.S.S.G.
' 4A1.2(e). Wood concedes that this conviction qualifies as a crime of
violence for career offender sentencing purposes.
Wood=s 1998 armed robbery conviction in state court, however, could
not qualify as one of the two career offender predicates because the
conviction occurred after Wood committed the instant offense. See
U.S.S.G. ' 4B1.2(c).
convictions for crimes of violence. The probation officer
recommended a final offense level of 31, which reflected a
three-level reduction for Wood’s acceptance of responsibility.
The corresponding sentencing range was 188-235 months.
Wood reserved the right to challenge the applicability of the
career offender guideline.
The district court ultimately adopted the probation officer’s
recommendation, finding that Wood had two prior
convictions for crimes of violence - the 1978 breaking and
entering and the 1993 robbery in the third degree.1 The court
sentenced him to the bottom of his guideline range (188
months).
II.
This Court reviews de novo a lower court’s determination
that a defendant is a “career offender” for sentencing
purposes. See United States v. Garza, 999 F.2d 1048, 1051
(6th Cir. 1993). A defendant qualifies as a career offender for
sentencing purposes if, inter alia, the defendant has at least
two prior felony convictions of either a crime of violence or
a controlled substance. U.S.S.G. § 4B1.1. According to
Wood, the district court erroneously counted his 1993
Alabama state conviction for robbery in the third degree as a
“crime of violence” for sentencing purposes. We disagree.
A “crime of violence” is defined by the Sentencing
Guidelines as:

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4 United States v. Wood No. 98-2243
[A]ny offense under federal or state law punishable by
imprisonment for a term exceeding one year that -- (1)
has as an element the use, attempted use, or threatened
use of physical force against the person of another, or (2)
is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.
U.S.S.G. § 4B1.2(a). The commentary clarifies this
definition:
“Crime of violence” includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling. Other offenses are
included as crimes of violence if (A) that offense has as
an element the use, attempted use, or threatened use of
physical force against the person of another, or (B) the
conduct set forth (i.e., expressly charged) in the count of
which the defendant was convicted . . . by its very nature,
presented a serious potential risk of physical injury to
another.
U.S.S.G. § 4B1.2, comment. (n.1)(emphasis added).
This circuit has interpreted § 4B1.2 and its commentary as
authorizing three ways in which a prior conviction could be
considered a “crime of violence:” 1) if the conviction is for a
crime that is among those specifically enumerated in the
guidelines; 2) if it is for a crime that, although not specifically
enumerated, has as an element of the offense the use,
attempted use, or threatened use of physical force; or 3) if,
although neither specifically enumerated nor involving
physical force as an element of the offense, the crime
involved conduct posing a serious potential risk of physical
injury to another. See United States v. Wilson, 168 F.3d 916,
927 (6th Cir. 1999).
Wood argues that his prior conviction for robbery in the
third degree does not meet any of these criteria. He does not
No. 98-2243 United States v. Wood 5
address whether the offense is one of the specifically
enumerated crimes of violence, but instead focuses on the
statutory elements of the offense. Wood contends that the
Alabama statute proscribes conduct which does not
necessarily have to involve violence, threatened or actual,
“against the person of another” as required by U.S.S.G.
§ 4B1.2(a). Rather, argues Wood, the robbery offense can be
committed even though the force or threat of force can be
directed towards the perpetrator’s flight as opposed to the
person of another. Wood concludes that for this reason the
Alabama statute is an improper predicate for a § 4B1.2
enhancement.
Wood misses a critical point. Robbery is one of the
enumerated crimes of violence. See U.S.S.G. § 4B1.2,
comment. (n. 2). The Sentencing Guidelines do not
distinguish between first, second, or third degrees of offenses.
Furthermore, the language in Wilson is written in the
disjunctive, see 168 F.3d at 927; therefore, it is not necessary
for Wood’s prior conviction to meet all three criteria
articulated in Wilson as a means of determining a “crime of
violence.” Thus, if a prior conviction satisfies any of the
three criteria it is a crime of violence for sentencing purposes.
Wood’s conviction appears to meet the first criteria because
“robbery” is among those enumerated in the Sentencing
Guidelines as a “crime of violence.”
However, a state’s decision to label certain criminal
conduct “robbery” may not always be dispositive of whether
the conduct constitutes a “crime of violence” under the
Sentencing Guidelines. Cf. Taylor v. United States, 495 U.S.
575, 590-92 (1990) (concluding that sentencing enhancements
for prior burglary convictions pursuant to 18 U.S.C. § 924(e)
must depend on a uniform federal definition of “burglary”
rather than on the definition of burglary adopted by the state
of conviction, and also noting that there is a general
presumption against interpreting federal criminal laws so as
to make their application dependent on state law). Even
assuming that Alabama’s robbery in the third degree
somehow does not fall under the enumerated offense of

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