                   UNITED STATES COURT OF APPEALS
Filed 7/5/96
                                TENTH CIRCUIT
                             _____________________

 UNITED STATES OF AMERICA,

      Plaintiff-Appellee,

 v.                                                    No. 96-7023
                                                   (D.C. No. CR-95-51)
 AMOS ELMER PERKINS,                                 (E.D. Oklahoma)

      Defendant-Appellant.
                             _____________________

                            ORDER AND JUDGMENT *
                             _____________________

Before BRORBY, EBEL and HENRY, Circuit Judges.
                      _____________________




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Amos Perkins pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g). He was sentenced to 65 months imprisonment.

In determining his sentence, Mr. Perkins received a base offense level of 20

because he had a prior conviction for a crime of violence. See USSG

§2K2.1(a)(4)(A). On appeal Mr. Perkins contends:

             Oklahoma's manslaughter statute does not include as an
      essential element the 'use, attempted use, or threatened use of
      physical force against the person of another,' and is, therefore,
      ambiguous, requiring the federal sentencing court to look beyond the
      statutory count of conviction to determine whether violation of
      Oklahoma's manslaughter statute is a 'crime of violence' for purposes
      of sentencing enhancement under U.S.S.G. §2K2.1(a)(4)(A).

The district court rejected the above argument and found:

            [A] crime of violence is defined in Section 4B1.2 of the
      guidelines as any offense under federal or state law punishable by
      imprisonment for a term exceeding one year that has, as an element,
      the use, attempted use, or threatened use of physical force against the
      person of another.

            The commentary to the guidelines goes on to identify
      manslaughter specifically as a crime of violence without regard to
      underlying intent or lack thereof.

We agree with the district court's findings and affirm.



      The Sentencing Guidelines define a crime of violence as:

            (1) ... any offense under federal or state law punishable by
      imprisonment for a term exceeding one year that

                   (i)    has as an element the use,

                                         -2-
                          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.

USSG §4B1.2. The applicable commentary lists manslaughter among ten

specific offenses which by definition are considered crimes of violence under the

guidelines. USSG §4B1.2, comment. (n.2). Relying on the commentary to the

guidelines is "essential in correctly interpreting and uniformly applying the

guidelines on a national basis." United States v. Rutter, 897 F.2d 1558, 1561

(10th Cir.), cert. denied, 498 U.S. 829 (1990).



      Mr. Perkins does not dispute that he has three prior state convictions of

first degree manslaughter for which he served a term of imprisonment greater than

one year. Instead, he claims the Oklahoma statute which defines first degree

manslaughter encompasses conduct that might not present serious potential risk of

injury to others. Because of the statute's ambiguity, Mr. Perkins contends the

government needed to produce the charging papers and court documents related to

the findings of guilt in the manslaughter cases to determine whether the

conviction was for a crime of violence.

                                          -3-
      Although the government did not produce the above mentioned documents,

it did provide unchallenged evidence at the sentencing hearing and in the

presentence report that the manslaughter convictions stemmed from a car accident

in which three passengers were killed while Mr. Perkins was driving while under

the influence of alcohol. We are persuaded by the government's arguments that

driving a car with three passengers on public roads while under the influence of

alcohol constitutes conduct which presents "a serious risk of physical injury to

others."



      For the above stated reasons the district court's order is AFFIRMED.

                                       Entered for the Court

                                       WADE BRORBY
                                       United States Circuit Judge




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