Appeal from the United States District Court for the Southern District of Illinois.
No. 94 CR 40014--J. Phil Gilbert, Chief Judge.
Before CUMMINGS, EASTERBROOK, and ROVNER, Circuit Judges.
Shawn D. Rutherford pled guilty to bank robbery, a violation of 18 U.S.C. sec. 2113(a), and possession of a firearm by a felon, a violation of 18 U.S.C. sec. 922(g). The district court found that Rutherford had two previous convictions for crimes of violence, rendering him a career offender under U.S.S.G. sec. 4B1.1. *fn1 The career offender guideline gave Rutherford an offense level of 29 and a criminal history category of VI, yielding a sentencing range of 151 to 188 months. If Rutherford had not qualified as a career offender, he would have had an offense level of 21 and a criminal history category of V, resulting in a sentencing range of 70 to 87 months. The district court imposed a sentence of 188 months of imprisonment and three years of supervised release.
On appeal, Rutherford argues that his 1993 conviction in an Alabama state court for first-degree assault does not qualify as a crime of violence. *fn2 He was convicted of assault for "driving a motor vehicle under the influence of alcohol and causing serious bodily injury to the person of another with the motor vehicle." Presentence Report at 9. *fn3 Rutherford contends that the definition of crime of violence under the career offender guideline does not encompass vehicular assault.
I. Definition of "Crime of Violence" Under the Career Offender Guideline
Section 4B1.2 of the Guidelines defines "crime of violence" for the purposes of the career offender guideline. Under sec. 4B1.2(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."
Application Note 2 to sec. 4B1.2 requires that we limit our inquiry to "the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted." Application Note 2; United States v. Lee, 22 F.3d 736, 738 (7th Cir. 1994). *fn4
First-degree assault is a felony in Alabama, Ala. Code sec. 13A-6-20(b), and Rutherford received a sentence of five years of imprisonment, although he only served nine months. The offense at issue is not an offense enumerated in sec. 4B1.2(1)(ii) or in Application Note 2. *fn5 Thus, we must determine whether Rutherford's offense involved the "use, attempted use, or threatened use of physical force" under sec. 4B1.2(1)(i) or whether it presented "a serious potential risk of physical injury" under sec. 4B1.2(1)(ii).
II. Use of Force Under sec. 4B1.2(1)(i)
The government does not argue that Rutherford's offense involved the "use, attempted use, or threatened use of physical force against . . . another." Still, the argument that Rutherford used force by injuring another person in a drunk driving accident merits discussion. We begin, as we must when interpreting any statute or guideline, with the plain ...