                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3533
                                    ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Minnesota.
Christopher Michael Mohr,             *
                                      *
            Defendant-Appellant.      *
                                 ___________

                              Submitted: June 15, 2004
                                 Filed: August 23, 2004
                                  ___________

Before MURPHY, HEANEY, and BRIGHT, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.

       Christopher Michael Mohr pled guilty to conspiracy to distribute
methamphetamine in violation of 21 U.S.C. § 846. The district court1 concluded that
Mohr was a career offender and sentenced him to 188 months imprisonment. Mohr
appeals the district court's application of the career offender provision and its denial
of a downward departure. We affirm.




      1
       The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.
      On December 6, 2001, a confidential informant for the Stearns County Sheriff
Department made a controlled purchase of a half ounce of methamphetamine from
Mohr. The following day the informant purchased an ounce of methamphetamine
from Mohr and his codefendant, John Moen. Mohr then arranged for the informant
to purchase a quarter pound of methamphetamine from Moen, and Mohr went with
him to Moen's motel room on December 11 where the sale was completed. Officers
obtained and executed search warrants for Moen's motel room and home; the
evidence they found there included another ounce and a half of methamphetamine,
a loaded shotgun, a sawed off shotgun, and cash. They also executed a search
warrant at Mohr's home where additional evidence was obtained.

       The two men were indicted on multiple charges, and Mohr pled guilty to
conspiracy to distribute methamphetamine on April 16, 2002. About three months
later he escaped from custody while on his way to a court appearance in a different
case, but he was soon apprehended with assistance from a helicopter and infrared
detection equipment.

       Mohr was sentenced on September 30, 2003. The district court took note of
his two prior felony convictions, possession of short barreled shotguns and burglary
of an automobile repair shop, and concluded they were crimes of violence. Mohr did
not dispute that possession of a short barreled shotgun qualifies as a crime of violence
under U.S.S.G. § 4B1.2(a) (2003), see United States v. Allegree, 175 F.3d 648, 651
(8th Cir. 1999), but he argues that burglary of a commercial building does not qualify
unless the facts of the particular case were to show that the crime created a serious
potential risk of physical injury to another. The district court disagreed, ruling that
under United States v. Blahowski, 324 F.3d 592, 595-96 (8th Cir. 2003), his burglary
fit the category of crime of violence and that he was therefore a career offender.
Mohr also moved for a downward departure under U.S.S.G. § 4A1.3, arguing that his
criminal history category significantly overrepresented the seriousness of his record.
The court denied this motion, characterizing Mohr as "close to a one-man crime wave

                                          -2-
since the time he was a child." As a career offender Mohr's base offense level was
34, and his criminal history category was VI.2 The district court granted a three level
reduction for acceptance of responsibility which led to a total offense level of 31.
The resulting sentencing range was 188 to 235 months,3 and Mohr was sentenced at
the low point to 188 months.

       Mohr argues that the district court erred by considering his prior conviction for
burglary of a commercial building a crime of violence. He contends that the 1997
amendment to the commentary for U.S.S.G. § 4B1.2 requires consideration of his
actual offense conduct and that our contrary holding in Blahowski, 324 F.3d at 595-
96, failed to respond to the amendment. He also argues for the first time on appeal
that Blahowski violated the constitutional principle of separation of powers and the
case and controversy clause of Article III by legislating a new rule for future cases.
He finally contends that the district court erred by failing to depart downward because
his criminal history category substantially overrepresented the seriousness of his past
crimes.

      We review de novo the district court's conclusion that burglary of a commercial
building was a crime of violence for purposes of the career offender provision.


      2
        Since Mohr had twenty four criminal history points, he fit criminal history
category VI regardless of whether the career offender enhancement applied. His prior
convictions included theft of a motor vehicle, felony possession of a short barreled
shotgun, attempts to purchase vehicles and a stereo with forged checks, endangerment
of a child by driving while intoxicated, giving a false name to the police, third degree
burglary of an auto repair shop, receipt of stolen property, theft, and twelve counts
of driving after his license was suspended. He had also frequently violated probation
and committed this offense while on probation and in violation of his bond on a
residential burglary charge.
      3
        The government objected to the reduction for acceptance of responsibility in
light of Mohr's escape from custody on July 23, 2003, but it has not appealed.

                                          -3-
United States v. Fountain, 83 F.3d 946, 949 (8th Cir. 1996). Mohr has not previously
raised his constitutional arguments so we apply a plain error standard in considering
them. See United States v. Grap, 368 F.3d 824, 828 (8th Cir. 2004). A district court's
refusal to grant a downward departure is generally unreviewable on appeal unless
there is evidence of an unconstitutional motive or the court mistakenly believed it was
without authority to grant the departure. United States v. Gonzalez-Lopez, 335 F.3d
793, 799 (8th Cir. 2003).

       The sentencing guidelines provide that a defendant must have "at least two
prior felony convictions of either a crime of violence or a controlled substance
offense" to be considered a career offender. U.S.S.G. § 4B1.1(a)(3). The guideline
defines crime of violence as

      any 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). Burglary, whether of a dwelling or a commercial building, has
as its elements the "unlawful or unprivileged entry into, or remaining in, a building
or structure, with intent to commit a crime." Taylor v. United States, 495 U.S. 575,
598 (1990).

       Our court has reasoned that since burglary always creates a "serious potential
risk of physical injury to another," it qualifies as a crime of violence. United States
v. Hascall, 76 F.3d 902, 905 (8th Cir. 1996). See also United States v. Fiore, 983
F.2d 1, 5 (1st Cir. 1992) (burglary of a commercial building poses a potential for

                                         -4-
episodic violence so substantial as to be a crime of violence). This rule was expressly
reaffirmed in Blahowski, 324 F.3d at 595-96, a case decided after the 1997
amendment to the commentary to U.S.S.G. § 4B1.2,4 and it remains the law of the
circuit. See United States v. Wilson, 315 F.3d 972, 973-74 (8th Cir. 2003) (only the
court en banc can overrule a circuit precedent). The district court thus did not err in
concluding that Mohr's prior burglary of a commercial building was a crime of
violence for purposes of the career offender provision.5

       Mohr contends for the first time on appeal that Hascall and Blahowski were
advisory opinions which legislated a per se rule for application to future cases in
violation of Article III and separation of powers principles. He cites no authority for
the proposition that the Constitution is violated by a judicial interpretation requiring
a particular outcome in a category of cases, and he does not distinguish the circuit
precedent under which his possession of a sawed off shotgun was treated as a crime
of violence without regard to the individual circumstances of the case. See Allegree,
175 F.3d at 651. Nor does he explain how Hascall and Blahowski can be seen as


      4
       Prior to the amendment, an application note to § 4B1.2 stated that a prior
offense would qualify as a crime of violence if "the conduct set forth (i.e., expressly
charged) in the count of which the defendant was convicted . . . by its nature,
presented a serious potential risk of physical injury to another." In 1997 that
language was altered to read "in determining whether an offense is a crime of
violence . . . the offense of conviction (i.e., the conduct of which the defendant was
convicted) is the focus of inquiry." As we noted in Blahowski, "[i]f anything, the
addition of the phrase 'the offense of conviction' in the post-amendment version
emphasizes that the criminal offense itself and not the individual circumstances
surrounding the defendant's conviction is the focus of the inquiry." 324 F.3d at 596.
      5
       Mohr's case is unaffected by Blakely v. Washington, 124 S.Ct 2531, 2536
(2004), because the fact of a prior conviction need not be proved to a jury in order to
support an increase in a defendant's sentence. See also Apprendi v. New Jersey, 530
U.S. 466, 490 (2000). The only enhancement to Mohr's sentence was because of his
prior convictions.

                                          -5-
advisory opinions when both applied the sentencing guidelines in actual cases and
controversies. Mohr has not shown any clear constitutional error by the district court
in applying Hascall and Blahowski, and we find no plain error. United States v.
Gonzales, 339 F.3d 725, 728 (8th Cir. 2003).

       Mohr finally argues that the district court erred by denying his downward
departure motion because his criminal history significantly overrepresents the
seriousness of his past criminal conduct. See U.S.S.G. § 4A1.3. Although he
recognizes that a district court's refusal to depart downward is generally
unreviewable, see Gonzalez-Lopez, 335 F.3d at 799, he argues that here the district
court believed that it was without authority to depart because of its erroneous finding
that Mohr had been "close to a one-man crime wave since the time he was a child."
This argument ignores the district court's recognition at sentencing of United States
v. Senior, 935 F.2d 149, 151 (8th Cir. 1991), which held that a downward departure
is permissible if a defendant's criminal history category overstates his criminal record.
The record indicates that the district court was well aware of its authority to depart
downward, but decided that a departure was not warranted because of Mohr's
extensive criminal background. For this reason, the court's decision not to depart is
unreviewable. See United States v. Dabney, 367 F.3d 1040, 1044 (8th Cir. 2004).

      Accordingly, we affirm the judgment of the district court.

HEANEY, Circuit Judge, concurring.

      Christopher Michael Mohr’s case is an example of the misconception that the
guidelines have been successful at reducing sentencing disparities. Mohr’s sentence
is more than double that which similar defendants throughout the country would
expect to receive under the guidelines, due solely to our circuit’s interpretation of
what constitutes a “crime of violence” for purposes of the career offender
enhancement. We have adhered to the fiction that every burglary of a commercial

                                           -6-
building is a “crime of violence” as defined by the guidelines. This view has been
rejected by nearly every circuit to consider the issue, and I suggest our circuit
reconsider the matter.

       The guideline provisions concerning the career offender enhancement are well-
established, and warrant additional discussion here. As relevant to Mohr’s case, a
defendant convicted of a controlled substance offense must be treated as a career
offender, and accordingly sentenced much more severely, if he has two prior felony
convictions for crimes of violence. USSG § 4B1.1. Crimes of violence include
“burglary of a dwelling, arson, or extortion,” and those which “involve[] the use of
explosives, or otherwise involve[] conduct that presents a serious potential risk of
physical injury to another.” USSG § 4B1.2(a)(2).

       One of Mohr’s qualifying “violent” offenses was a Minnesota conviction for
burglary in third degree. See Minn. Stat. § 609.582, subd. 3. This conviction could
not be considered “burglary of a dwelling” for purposes of the career offender
enhancement. Compare Minn. Stat. § 609.582, subd. 2(a) (specifically listing the
elements of burglary in the second degree to include entering a dwelling), with Minn.
Stat. § 609.582, subd. 3 (omitting any reference to dwellings and referring only to
unlawful entry of a “building” for the offense of burglary in the third degree).
Nevertheless, Mohr’s third degree burglary conviction was considered to be a violent
offense because, as the majority notes, our court has held that “burglary always
creates a ‘serious potential risk of physical injury to another.’” Ante at 4 (quoting
United States v. Hascall, 76 F.3d 902, 905 (8th Cir. 1996)0; see also USSG
4.B1.2(a)(2) (directing sentencing courts to treat convictions as crimes of violence if
the underlying conduct created “serious potential risk of physical injury to another”).
Time and again, our circuit has reaffirmed this approach of characterizing all
burglaries as violent crimes, regardless of the underlying circumstances. See United
States v. Blahowski, 324 F.3d 592, 595 (8th Cir. 2003) (collecting cases).



                                          -7-
       Perhaps in the abstract, such an approach has some appeal. Hascall recognized
that the threat of some physical injury was inherent in the commission of any
burglary, a point beyond dispute. Hascall, 76 F.3d at 904-05. Certainly, the
guidelines themselves acknowledge this principle by specifying that burglaries of
dwellings must always be considered crimes of violence. USSG § 4B1.2(a)(2).
Notably, though, the guidelines do not mandate that sentencing courts always treat
burglaries of commercial buildings as violent crimes; they are silent on the issue.
Circuits have split on the precise meaning of this omission, but they are nearly
unanimous in holding that burglaries of commercial buildings should not generally
be treated as violent crimes. See, e.g., United States v. Wilson, 168 F.3d 916, 920
(6th Cir. 1999) (holding that while certain burglaries of a commercial building may
qualify as crimes of violence, “the burglary of a non-dwelling is not a crime of
violence per se under [the guidelines]”); United States v. Nelson, 143 F.3d 373, 374-
75 (7th Cir. 1998) (declining to adopt a per se rule that burglaries of commercial
buildings are crimes of violence); United States v. Harrison, 58 F.3d 115, 119 (4th
Cir. 1995) (declining to apply the career offender enhancement when there was no
evidence that predicate convictions involved burglaries of dwellings since “under
USSG § 4B1.2 only burglary of a dwelling constitutes a crime of violence”); United
States v. Spell, 44 F.3d 936, 938 (11th Cir. 1995) (“By 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. Smith, 10 F.3d 724, 730-34 (10th Cir. 1993)
(holding that burglary of a commercial office is not a crime of violence). Only one
circuit, save our own, has maintained that burglaries of unoccupied, commercial
buildings are always classified as violent crimes for purposes of the career offender
enhancement. See United States v. Rodriguez, 311 F.3d 435, 438-39 (1st Cir. 2002)
(reaffirming in dicta its holding in United States v. Fiore, 983 F.2d 1 (1st Cir. 1992),
that burglaries of commercial buildings are crimes of violence due to the risk of
injury associated with such conduct).



                                          -8-
       I believe our circuit–joined only by one other circuit to speak on the issue–has
far too broad a conception of what the guidelines mean by stating that violent crimes
include “conduct that presents a serious potential risk of physical injury to another.”
USSG § 4B.2(a)(2). Certainly, the risk of physical injury exists in nearly every
felony. The guidelines, however, focus on whether that risk is a serious one, not just
an abstract possibility. To my mind, our circuit’s approach, which unequivocally
holds that the risk always exists in burglaries of commercial buildings, does not
adequately consider the conduct underlying such convictions. For instance, Mohr’s
burglary conviction, or “violent crime,” was for acting as a look-out while his two
accomplices broke the office of Mohr’s former employer, the Auto Doctor, to steal
electronic equipment. Obviously, the potential risk of injury was present in the
crime, but without any indication that the business was occupied, the gravity of that
risk was not significant enough to characterize the crime as a violent one. In this
circuit, however, we ignore the reality of a defendant’s underlying conduct and
charged offense, and focus solely on the question of whether the defendant was
convicted of burglary or some derivation thereof.

       Our panel is not at liberty to overturn our prior precedent, although our court
may do so en banc. If our court fails to correct its missteps en banc and the Supreme
Court does not clarify the qualifications for predicate career offender convictions,
significant sentencing disparities will continue to exist based solely on the circuit in
which a federal defendant is sentenced.

BRIGHT, Circuit Judge, concurring.

       Based on this circuit’s precedent, I concur in the majority’s affirmance of
Mohr’s sentence. I also join in Judge Heaney’s concurrence and his objections to the
rule in this circuit making any burglary a “crime of violence” for the purposes of the
career offender enhancement under the sentencing guidelines. In addition, I write



                                          -9-
separately to reemphasize my views on this issue as stated in my dissent in United
States v. Blahowski, 324 F.3d 592, 598-99 (8th Cir. 2003) (Bright, J., dissenting).

      The United States Supreme Court may wish to review the issue of whether the
burglary of a commercial building categorically meets the definition of a crime of
violence for the purposes of the career offender enhancement. Mohr may wish to file
an appropriate petition seeking a resolution of the circuit split in the law on this issue.
                        ______________________________




                                           -10-
