                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-1174
                                  ___________

United States of America,              *
                                       *
              Appellee,                *
                                       * Appeal from the United States
      v.                               * District Court for the Eastern
                                       * District of Missouri.
Todd Scott,                            *
                                       *
              Appellant.               *
                                  ___________

                             Submitted: June 21, 2005
                                Filed: July 13, 2005
                                 ___________

Before LOKEN, Chief Judge, and MORRIS SHEPPARD ARNOLD and
      COLLOTON, Circuit Judges.
                             ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Todd Scott appeals from his conviction and sentence for being a felon in
possession of a firearm, see 18 U.S.C. § 922(g)(1). We affirm.

      Mr. Scott had earlier been convicted for stealing a car, see Mo. Rev. Stat.
§ 570.030 (1994), and the district court,1 following United States v. Sun Bear,
307 F.3d 747 (8th Cir. 2002), cert. denied, 539 U.S. 916 (2003), enhanced his

      1
       The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
sentence on the ground that this previous offense was a crime of violence, see
U.S.S.G. § 4B1.2(a)(2). Sun Bear reasoned that auto theft qualified for an
enhancement under the guideline (which provides that a crime is a "crime of
violence" if it "involves conduct that presents a serious potential risk of physical
injury to another," U.S.S.G. § 4B1.2(a)(2)), because auto theft involved a number of
serious risks that the perpetrator would offer violence to a person. Sun Bear, 307
F.3d at 752-53. We are aware that there are cases to the contrary in other circuits; but
Sun Bear rejected their reasoning and we are therefore obligated to reject Mr. Scott's
argument. See id.

       Mr. Scott directs our attention to an intervening Supreme Court case, Leocal
v. Ashcroft, 125 S. Ct. 377 (2004). The question in Leocal was whether a driving-
while-intoxicated offense was a "crime of violence" within the meaning of 18 U.S.C.
§ 16, which, as relevant here, defines such a crime as an offense "that, by its nature,
involves a substantial risk that physical force against the person ... of another may be
used in the course of committing the offense." In rejecting the government's proposed
interpretation of the statute, the Court noted that the statute required a risk that force
"be used," a phrase that contemplated an intentional resort to violence by the
perpetrator. See Leocal, 125 S. Ct. at 382-83. The offense of driving while
intoxicated, of course, does not fall in that category. The present case, on the other
hand, involves just such an offense according to the reasoning in Sun Bear. More
relevantly, the guideline applicable here does not require a risk that force be "used,"
only that there be conduct that involves a risk of "physical injury." Leocal is
therefore entirely inapposite. See Leocal, 125 S. Ct. at 383 n.7.

       Mr. Scott also maintains that the district court denied him his sixth amendment
rights because it enhanced his sentence on the basis of facts not found by a jury. This
argument is meritless. The only fact on which the district court based its
enhancement was the fact of a prior conviction, a matter on which the sixth
amendment does not require a jury to pass. See United States v. Booker, 125 S. Ct.

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738, 756 (2005). The question of whether the conviction, once found as a fact, is a
crime of violence under the guidelines is a legal question, and therefore one for a
court to decide. United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005).

      Nor do we discern any reversible error in the district court's assumption when
passing sentence on Mr. Scott that the sentencing guidelines were mandatory. While
Booker held that they were not, Mr. Scott did not raise a sixth-amendment objection
below. We therefore review the matter for plain error. Our examination of the record
reveals no reasonable probability that the district court would have imposed a lower
sentence if it had applied the correct legal rule, so Mr. Scott is not entitled to relief.
United States v. Pirani, 406 F.3d 543, 550-51 (8th Cir. 2005) (en banc).

      Affirmed. Mr. Scott's pending motion to remand for resentencing is denied.
                     ______________________________




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