United States v. Stephen A. Walker , 32 F. App'x 169 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3260
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri
Stephen A. Walker, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 18, 2002
Filed: April 1, 2002
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Before McMILLIAN, BOWMAN, and BYE, Circuit Judges.
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PER CURIAM.
Stephen A. Walker appeals from the final judgment entered in the District
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Court for the Western District of Missouri upon his guilty plea to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
district court sentenced Walker to 120 months imprisonment and 3 years supervised
release. For reversal, Walker argues the district court erred in calculating his base
offense level under U.S.S.G. § 2K2.1(a)(2), because his prior Missouri conviction for
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The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
unlawful use of a weapon did not constitute “a crime of violence.” For the reasons
discussed below, we affirm the judgment of the district court.
In a felon-in-possession case, the base offense level is 24 “if the defendant had
at least two prior felony convictions of either a crime of violence or a controlled
substance offense.” See U.S.S.G. § 2K2.1(a)(2). Guidelines § 2K2.1 incorporates
by reference U.S.S.G. § 4B1.2’s crime-of-violence definition. See U.S.S.G. § 2K2.1,
comment. (n.5). Guidelines § 4B1.2(a)(1) and (2), respectively, define “crime of
violence” as any crime punishable by imprisonment for a term exceeding 1 year that
“has as an element the use, attempted use, or threatened use of physical force against
another person,” or “otherwise involves conduct that presents a serious potential risk
of physical injury to another.”
Assuming without deciding that the Missouri statute Walker violated could
have been committed without violence, we conclude the district court properly
considered the offense’s underlying facts. See Mo. Rev. Stat. § 571.030.1(1) (2000)
(prohibiting knowingly carrying concealed “a knife, a firearm, a blackjack or any
other weapon readily capable of lethal use”); United States v. Kind, 194 F.3d 900,
907 (8th Cir. 1999) (“Assuming this offense can sometimes be committed without
violence, we look to the facts or charging instruments underlying Kind’s offense to
determine whether it was a crime of violence.” (emphasis added)), cert. denied, 528
U.S. 1180 (2000); United States v. Wright, 957 F.2d 520, 522 (8th Cir.) (when
deciding whether offense involves conduct that presents serious potential risk of
physical injury to another, courts may examine facts underlying defendant’s
conviction to determine whether offense is “crime of violence”), cert. denied, 506
U.S. 856 (1992).
In view of the unobjected-to facts in the presentence report (PSR) describing
Walker’s prior conviction, the district court correctly determined that the conviction
constituted a predicate felony, because his offense--which involved a car chase with
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two weapons readily accessible, a subsequent flight on foot, and an ultimate arrest
yielding brass knuckles--presented a serious potential risk of physical injury to the
officers who pursued and arrested him. See U.S.S.G. § 4B1.2(a)(2); United States v.
Moore, 242 F.3d 1080, 1081 (8th Cir. 2001) (reviewing district court’s application
of Guidelines de novo and its factual findings for clear error); United States v. Wajda,
1 F.3d 731, 732 (8th Cir. 1993) (per curiam) (district court is not required to make
factual findings on matters in PSR unless defendant objects with specificity and
clarity).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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