                            ___________

                            No. 95-2266
                            ___________

United States of America,       *
                                *
         Plaintiff - Appellee, *
                                * Appeal from the United States
                                * District Court for the
     v.                         * Southern District of Iowa.
                                *
Ricky Lee Hascall,              *
                                *
         Defendant - Appellant. *


                            ___________

                  Submitted:   November 13, 1995

                      Filed: February 16, 1996
                           ___________

Before HANSEN, JOHN R. GIBSON and MURPHY, Circuit Judges.

                            ___________

JOHN R. GIBSON, Circuit Judge.


     Ricky Lee Hascall appeals the 262 month sentence he received
after pleading guilty to conspiracy to distribute methamphetamine
in violation of 21 U.S.C. § 846 (1988).       He argues that the
              1
district court erred in finding him a career offender under USSG
§ 4B1.1 (Nov. 1994).      Specifically, Hascall challenges the
determination that conspiracy to distribute methamphetamine is a
controlled substance offense under the Sentencing Guidelines, and
he contends that the district court improperly labeled two prior




     1
      The Honorable R. E. Longstaff, United States District Judge
for the Southern District of Iowa.
second-degree burglary convictions as crimes of violence because
the burglaries involved commercial properties. We affirm.


     After receiving briefs and hearing arguments, the district
court ruled that conspiracy to distribute methamphetamine was a
controlled substance offense under section 4B1.1 of the Sentencing
Guidelines. Relying primarily on United States v. Carpenter, 11
F.3d 788 (8th Cir. 1993), cert. denied, 114 S. Ct. 1570 (1994), the
court also found that second-degree burglary of a commercial
building is a crime of violence as defined in section 4B1.2. Based
on these findings, the district court determined that Hascall was
a career offender with an offense level of thirty-seven and a
criminal history category of VI. Following a three-level reduction
for acceptance of responsibility, the court determined the
sentencing range to be 262 to 327 months.      The court sentenced
Hascall to 262 months imprisonment, noting that the career offender
classification increased Hascall's sentence by more than 100 months
on both the low and high ends of the sentencing range.


     Section 4B1.1, the career offender provision of the Sentencing
Guidelines, provides:


     A defendant is a career offender if (1) the defendant was
     at least eighteen years old at the time of the instant
     offense, (2) the instant offense of conviction is a
     felony that is either a crime of violence or a controlled
     substance offense, and (3) the defendant has at least two
     prior felony convictions of either a crime of violence or
     a controlled substance offense.


     Hascall challenges the district court's findings under the
second and third requirements of section 4B1.1.     We review the
district court's application of the Sentencing Guidelines de novo.
United States v. Gullickson, 981 F.2d 344, 346 (8th Cir. 1992).


     Hascall argues that section 4B1.1 is inapplicable because
conspiracy to distribute methamphetamine is not a controlled

                               -2-
substance offense. Our circuit recently decided this question in
United States v. Mendoza-Figueroa, 65 F.3d 691, 694 (8th Cir. 1995)
(en banc), holding that drug conspiracies are included in the
career offender provisions of the Sentencing Guidelines.      Thus,
Hascall's crime satisfies the second requirement of section 4B1.1.


     Hascall argues that his two previous felony convictions for
second-degree burglary are not crimes of violence under the third
requirement of section 4B1.1. In 1985, Hascall committed second-
degree burglary in Des Moines, Iowa, when he entered a tire store
by kicking out the front door. Approximately ten months later,
Hascall pleaded guilty to second-degree burglary after he entered
a Des Moines business with the intent to remove items not belonging
to him.    He contends that these commercial burglaries are not
crimes of violence as defined by the guidelines.


     Section 4B1.2 defines a "crime of violence:"


     (1)   The term "crime of violence" means any offense
           under   federal  or   state   law  punishable   by
           imprisonment for a term exceeding one year that --

           (i)   has as an element the use, attempted use, or
                 threatened use of physical force against the
                 person of another, or

           (ii) 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.


     Our inquiry focuses on subsection (ii) of this definition.
Hascall contends that if the Sentencing Commission intended the
guidelines to include all burglaries as crimes of violence, the
Commission would not have used the phrase "burglary of a dwelling"
in the definition. The government responds that burglary is per se
a crime of violence and commercial burglary is included in the
"otherwise clause" of subsection (ii).    Hascall's second-degree

                                -3-
burglaries of commercial buildings are not "burglaries of
dwellings," so the issue narrows to whether they "otherwise
involve[ ] conduct that presents a serious potential risk of
physical injury to another." USSG § 4B1.2(1)(ii).


     Although we have not yet considered the specific question of
whether burglary of a commercial building is a crime of violence
under section 4B1.2, we have held generally that second-degree
burglary qualifies as a crime of violence under section 4B1.2.
United States v. Nimrod, 940 F.2d 1186, 1189 (8th Cir. 1991) ("the
inclusion of a prior conviction for second degree burglary in an
enhanced sentence calculation was proper"), cert. denied, 502 U.S.
1079 (1992); Carpenter, 11 F.3d at 790-91.


     Further, we have interpreted the otherwise clause in the
context of section 924(e) of the Armed Career Criminal Act. We
held that attempted second-degree burglary poses such a "serious
potential risk of physical injury" that it qualifies as a violent
felony under the otherwise clause of section 924(e). See, e.g.,
United States v. Solomon, 998 F.2d 587, 590 (8th Cir.), cert.
denied, 114 S. Ct. 639 (1993); United States v. Demint, No.
95-2690, slip op. at 4-5 (8th Cir. Jan. 26, 1996) (per curiam).
Second-degree burglary is at least as dangerous as attempted
second-degree burglary, if not more so. The otherwise clause of
section 4B1.2 is identical to the otherwise clause of section
924(e), and there is no reason to believe that second-degree
burglary in the context of the guidelines poses a lesser risk of
physical injury than it does under section 924(e). These cases
direct us to conclude that second-degree burglary of a commercial
building involves conduct that presents a serious potential risk of
physical injury to another under the otherwise clause of section
4B1.2. See United States v. Fiore, 983 F.2d 1, 4 (1st Cir. 1992),
cert. denied, 113 S. Ct. 1830 (1993).




                               -4-
      Our holdings are based partly on the generic definition of
burglary in Taylor v. United States, 495 U.S. 575, 598 (1990). In
Taylor, 495 U.S. at 577 (1990), the Supreme Court discussed the
meaning of the term burglary as used in 18 U.S.C. § 924(e).2 The
Court    held  that  for   the   purpose  of   enhancement   under
section 924(e), burglary includes a crime "having the basic
elements of unlawful or unprivileged entry into, or remaining in,
a building or structure, with intent to commit a crime." Id. at
598-99. Building or structure in this generic definition is broad
enough to include both a commercial building and a residence.


     Other circuits are divided on whether burglary of a commercial
building is a crime of violence under the Sentencing Guidelines.


     In Fiore, 983 F.2d at 4, the First Circuit held that "burglary
of a commercial building poses a potential for episodic violence so
substantial as to" be a crime of violence. After first recognizing
the specific reference to burglary of a dwelling in section 4B1.2,
the court turned its attention to the otherwise clause.         Id.
Looking to dicta in Taylor, 495 U.S. at 594, the court noted the
statement that commercial burglaries often pose a far greater risk
of harm than burglaries of dwelling places. Fiore, 983 F.2d at 4.
The First Circuit recognized its recurrent holding that commercial
burglary is a violent felony under section 924(e) of the Armed
Career Criminal Act. Id. That earlier First Circuit decisions
referred to the Armed Career Criminal Act and the interpretation of
its identically worded otherwise clause was a distinction without
a difference. Id.


      2
       The relevant portion of section 924(e) defined a violent
felony as "burglary, . . . or otherwise involv[ing] conduct that
presents a serious potential risk of physical injury to another."
Taylor, 495 U.S. at 578. Guideline section 4B1.2 defines a crime
of violence to include "burglary of a dwelling, . . . or otherwise
involv[ing] conduct that presents a serious potential risk of
physical injury to another." While the portions of the definitions
involving burglary differ, the "otherwise clause" is the same.

                               -5-
     The Tenth Circuit in United States v. Smith, 10 F.3d 724,
732-33 (1993) (per curiam), declined to follow Fiore, and held that
commercial burglary is not a crime of violence under the section
4B1.2 otherwise clause, reasoning that the Sentencing Commission
intended for the otherwise clause to be narrowly interpreted and
applied.3 The Court believed that whether the "unlawful entry of
a non-dwelling for the purpose of stealing property is regarded as
conduct which presents a `serious potential risk of physical harm
to others,' and is therefore a `crime of violence,' comes down to
a policy judgment."    Id. at 733.    A narrow interpretation was
important because of the inherent tendency of the career offender
provision to "impose severe punishments at sudden and arbitrary
junctures, in contrast to the carefully constructed, graduated
scheme of sentencing reflected in the Guidelines."      Id. at 732
(footnote omitted). Reviewing section 924(e) of the Armed Career
Criminal Act, the court explained that Congress expressly stated in
section 924(e)(2)(B)(ii) that all burglaries involve conduct that
presents a serious potential risk of physical injury to another.
Id. The Sentencing Commission had obviously declined to adopt that
view.   Id. at 733.    The Commission's definition conspicuously
omitted burglary, with the single exception of burglary of a
dwelling, and from 1989 to the present, the Commission has retained
the distinction between section 4B1.2 and section 924(e). Id.


     3
      Relying primarily on Smith, other circuits have interpreted
section 4B1.2 to exclude commercial burglaries. See, e.g., United
States v. Spell, 44 F.3d 936, 938 (11th Cir. 1995) (per curiam)
(holding that "[b]y explicitly including the burglary of a dwelling
as a crime of violence, the Guidelines intended to exclude from the
violent crime category those burglaries which do not involve
dwellings and occupied structures"); United States v. Harrison, 58
F.3d 115, 119 (4th Cir. 1995) (stating that burglaries of
commercial structures do not qualify as crimes of violence); United
States v. Jackson, 22 F.3d 583, 585 (5th Cir. 1994) (holding that
burglary of a house vacant for seven years did not pose a "serious
potential risk of physical injury" and was not a crime of violence
because "when a burglary of a building is involved, it cannot be
said that there is always a substantial risk that force will be
used").

                               -6-
     The Tenth Circuit found support in the fact that the
Sentencing Commission failed to adopt a proposed 1992 amendment to
section 4B1.2, which would have deleted the term "of a dwelling"
from the guideline.4 Smith, 10 F.3d at 733. However, the 1989
amendment to the guideline deleted an example in the Application
Notes which expressly excluded commercial burglary.5 In addition,
the Commission failed to adopt a 1993 proposed amendment that would
have embraced the Tenth Circuit's interpretation of section 4B1.2.6
We fail to see how the Commission's inconsistent path supports a
particular view on this issue. Neither the original version of the
guideline, nor the proposed amendments, provide assistance in our
analysis.   Cases applying the original version are similarly
unpersuasive. See, e.g., United States v. Talbott, 902 F.2d 1129,
1133 (4th Cir. 1990).


     We believe the   Smith interpretation of section 4B1.2 fails to
accept the identity   of the otherwise clauses in section 924(e) and
section 4B1.2. As     we have said, second-degree burglary poses a
"serious potential    risk for physical injury." We choose not to


          4
        The 1992 proposal recommended deleting the words "of a
dwelling" in order to include all burglaries. 57 Fed. Reg. 62,832,
62,856-57 (proposed Dec. 31, 1992). The Commission proposed this
change to conform the definition of a crime of violence in the
career offender guideline to the statutory definition in the armed
career criminal guideline. Id.
      5
       The original version of the Application Notes to section
4B1.2 specifically excluded burglary of a commercial building. The
Application Note stated: "Conviction for burglary of a dwelling
would be covered; conviction for burglary of other structures would
not be covered."    See USSG App. C., amendment 268.      The 1989
amendment deleted this example. Id.
      6
       In 1993, the Commission recognized the split between the
circuits and proposed that the Application Notes to section 4B1.2
be changed to read:     "The term `crime of violence' includes
burglary of a dwelling (including any adjacent outbuilding
considered part of the dwelling). It does not include other kinds
of burglary."   58 Fed. Reg. 67,522, 67,533 (proposed Dec. 21,
1993). Again, this proposal was not adopted.

                                 -7-
adopt a reading of section 4B1.2 that is inconsistent with our
understanding of the identically worded otherwise clause in section
924(e).


     The reasoning in Fiore is most convincing, and we accept it in
preference to that in Smith and those circuits adopting its
approach. Further, the analysis in Fiore is consistent with our
earlier cases, which are binding on us.      See United States v.
Olness, 9 F.3d 716, 717 (8th Cir. 1993), cert denied, 114 S. Ct.
1326 (1994).


     We conclude that the district court properly classified
Hascall's two second-degree burglaries as crimes of violence under
section 4B1.2.    His two prior convictions satisfy the final
requirement of the section 4B1.1 career offender provision.
Accordingly, we affirm the judgment of conviction and the sentence
imposed by the district court.


     A true copy.


          Attest:


               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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