United States v. Archer
United States v. Archer
Opinion of the Court
ORDER
Kevin Edward Archer pled guilty to bank robbery, a violation of 18 U.S.C.
We review the sentencing court’s legal conclusions de novo, while examining its factual findings for clear error. See United States v. Henderson, 209 F.3d 614, 617 (6th Cir. 2000).
The district court found that Archer was a career offender under USSG § 4B1.1, because he had prior convictions for unarmed robbery and for mailing threatening communications. Archer now argues that his prior conviction for mailing threatening communications was not a crime of violence that would support his current sentence as a career offender.
The term “crime of violence” means 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.
USSG § 4B 1.2(a) (2002) (emphasis added).
We use a categorical approach to determine whether a prior offense meets this definition, looking only to the statutory elements of the offense. United States v. Campbell, 256 F.3d 381, 395-96 (6th Cir. 2001). The federal statute under which Archer was convicted of “Mailing Threatening Communications” provided in pertinent part as follows:
Whoever knowingly so deposits or causes to be delivered as aforesaid, any communication ..., addressed to any other person and containing ... any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than five years, or both.
18 U.S.C. § 876 (West 1996) (emphasis added). This language shows that Archer’s prior conviction was a crime of violence under § 4B1.2(a)(1), as it includes the element of threatening to use physical force against the person of another. See United States v. McCaleb, 908 F.2d 176, 178 (7th Cir. 1990); United States v. Left Hand Bull, 901 F.2d 647, 649 (8th Cir. 1990).
Archer argues that his prior offense did not involve a serious risk of injury because it was less violent than the offenses that are specifically listed in § 4B1.2(a)(2) and the commentary to the guideline. However, the two subsections of § 4B1.2(a) are written in the disjunctive. Thus, we need not consider whether Archer’s prior offense involved a serious risk of injury under § 4B1.2(a)(2), as it expressly included an element of threatening to use physical force under § 4B1.2(a)(l).
Finally, Archer argues that his prior conviction did not involve a threat within the meaning of § 4B1.2(a)(l), because his incarceration greatly reduced any immediate risk to another. However, the courts have not required imminent danger to establish a threat for purposes of § 4B1.2(a)(l). See McCaleb, 908 F.2d at 178 & n. 6; Left Hand Bull, 901 F.2d at 649. Moreover, consideration of this argument would require us to look beyond the plain language of § 876 and examine the
Accordingly, the district court’s judgment is affirmed.
Reference
- Full Case Name
- United States v. Kevin Edward ARCHER
- Cited By
- 2 cases
- Status
- Published