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The Honorable Scott O. Wright, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3936

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United States of America,

Appellee,

v.

Brent James Bockes,

Appellant.

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Appeal from the United States

District Court for the Western

District of Missouri.

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Submitted: October 11, 2005 

 Filed: May 18, 2006

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Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges. 

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GRUENDER, Circuit Judge.

 Brent James Bockes appeals the sentence pronounced by the district court1

 after

his guilty plea for bank robbery. Bockes contends that tampering with a motor vehicle

is not a crime of violence as defined by U.S. Sentencing Guidelines Manual § 4B1.2

and that his sentence was unconstitutionally pronounced under mandatory sentencing

guidelines. We affirm.
2

“Crime of violence” is defined in § 4B1.2(a) as:

[A]ny 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.

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I. BACKGROUND

Bockes pled guilty to four counts of bank robbery by intimidation in violation

of 18 U.S.C. § 2113(a). The district court sentenced Bockes as a career offender,

finding that a 2002 Missouri conviction for burglary in the second degree and a 1995

Missouri conviction for tampering with a motor vehicle in the first degree were both

crimes of violence as defined by U.S.S.G. § 4B1.2.2

 Upon application of the career

offender guideline, Bockes’s total offense level was 29 and his criminal history

category was VI, yielding a guidelines sentencing range of 151 to 188 months.

Absent the career offender guideline, Bockes’s total offense level would have been

25 and his criminal history category still would have been VI, yielding a guidelines

range of 110 to 137 months. The district court, applying the guidelines in a

mandatory fashion, pronounced a sentence of 151 months. Bockes objected to the

application of the guidelines at sentencing, citing Blakely v. Washington, 542 U.S. 296

(2004). However, the district court also pronounced an identical alternative sentence

of 151 months “if the guidelines do not apply.”

Bockes appeals his sentence, arguing that (1) tampering with a motor vehicle

is not a crime of violence, and (2) his sentence was unconstitutionally pronounced

under mandatory guidelines.
3

Because the definition of “crime of violence” in § 4B1.2 is virtually identical

to the definition of “violent felony” in 18 U.S.C. § 924(e), we apply our precedent

regarding whether a conviction under a particular statute is a violent felony for §

924(e) purposes to the question of whether a conviction under that statute is a crime

of violence for § 4B1.2 purposes. United States v. Levering, 431 F.3d 289, 294 (8th

Cir. 2005); United States v. Sprouse, 394 F.3d 578, 580 (8th Cir. 2005) (“Because the

definitions of crime of violence and violent felony are identical, the same analysis

applies in determining whether [the defendant’s] convictions fall within the conduct

defined.”).

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II. DISCUSSION

A. Tampering with a Motor Vehicle as a Crime of Violence

We review de novo whether a prior conviction constitutes a crime of violence

under the sentencing guidelines. United States v. Kendrick, 423 F.3d 803, 809 (8th

Cir. 2005). Under Missouri law, a person commits the crime of tampering with a

motor vehicle if “[h]e or she knowingly receives, possesses, sells, alters, defaces,

destroys or unlawfully operates an automobile . . . or other motor-propelled vehicle

without the consent of the owner thereof.” Mo. Rev. Stat. § 569.080.1(2). The statute

thus criminalizes both tampering by operation and tampering by possession.

We have held that a subset of activity criminalized by this statute, tampering by

operation, is a “violent felony” for purposes 18 U.S.C. § 924(e) and, thus, a crime of

violence for purposes of § 4B1.2.3

 United States v. Johnson, 417 F.3d 990, 997-99

(8th Cir. 2005), reh’g denied, No. 04-1839 (8th Cir. May 3, 2006). In Johnson, we

recognized that tampering by operation involves exactly the same risk-creating

elements as theft or attempted theft of a vehicle, which we held to be crimes of

violence in United States v. Sun Bear, 307 F.3d 747, 753 (8th Cir. 2002). Like vehicle

theft, tampering by operation “creates the risk of a violent confrontation with the

vehicle’s owner or with law enforcement, places the criminal in control of a

potentially deadly or dangerous weapon, . . . and makes it likely that ‘the thief may be
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pursued, or perceive a threat of pursuit, and drive recklessly, turning any pursuit into

a high-speed chase with potential harm to innocent people, to the police, and to the

thief himself.’” Id. at 999 (quoting Sprouse, 394 F.3d at 580-81). Because the

Missouri statute is overinclusive, we applied the categorical approach developed in

Shepard v. United States, 544 U.S. 13 (2005), and Taylor v. United States, 495 U.S.

575 (1990), to determine if the conduct underlying the conviction fell within the

statutory category of tampering by operation. Because the charging document stated

that Johnson’s conduct involved tampering by operation, we held that his conviction

qualified as a crime of violence. Johnson, 417 F.3d at 997-99.

After Johnson was decided, our court en banc revisited the definition of

“violent felony” found in 18 U.S.C. § 924(e) (and by implication the definition of

“crime of violence” in § 4B1.2) in United States v. McCall, 439 F.3d 967 (8th Cir.

2006) (en banc). In McCall, we held that a finding of “serious potential risk” within

the meaning of § 924(e)(2)(B)(ii) requires that, although physical injury need not be

an element of the offense, “the inherent potential for harm must be present, if not in

every violation, at least in a substantial portion of the circumstances made criminal by

the statute.” Id. at 972. We have since affirmed that the potential for harm described

in Johnson continues to qualify tampering by operation under the Missouri statute as

a crime of violence after McCall. United States v. Adams, 442 F.3d 645, 646-47 (8th

Cir. 2006); cf. United States v. Livingston, 442 F.3d 1082, 1087 (8th Cir. 2006)

(following the reasoning of McCall and Johnson to hold that “breaking or entering a

vehicle does not cross the line into what constitutes a violent felony” due to the

“difference in the dangers inherent in operating a vehicle as opposed to merely

possessing a vehicle”).

In this case, the Presentence Investigation Report (“PSR”) cited the charging

document underlying the 1995 tampering conviction to show that Bockes “knowingly

and without consent of the owner possessed and unlawfully operated a motor vehicle.”

The charging document, of course, is acceptable documentary evidence as
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Determining whether a prior conviction is a “crime of violence” for § 4B1.2

purposes is a question of law, not a question of fact found by the judge. United States

v. Turnbough, 425 F.3d 1112, 1114 (8th Cir. 2005) (“We have consistently rejected

the applicability of Booker to the legal determination of whether a prior conviction

may be categorized as a crime of violence.”).

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contemplated by Shepard. See 544 U.S. at 26. Although Bockes objected to the

characterization of the conviction in the PSR as a crime of violence, he did not object

to the underlying facts recited from the charging document. Because Bockes did not

object and this is “a case where the PSR described conduct derived from documents

Taylor or Shepard permit,” the Government was not obliged “to introduce at

sentencing the documentary evidence Taylor or Shepard requires.” McCall, 439 F.3d

at 974. Therefore, the district court did not err in finding that Bockes’s conviction for

tampering by operation under the Missouri statute is a crime of violence for § 4B1.2

purposes.

B. Use of Mandatory Sentencing Guidelines

Because Bockes preserved his challenge to the use of mandatory guidelines

with a timely Blakely objection to the sentencing court, we review for harmless error.

See United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc). Bockes’s

sentencing guidelines range was ultimately determined solely from his status as a

career offender with no enhancements based on judge-found facts,4

 so the error in

using mandatory guidelines is not of constitutional magnitude. United States v.

Londondio, 420 F.3d 777, 791 (8th Cir. 2005). Therefore, to prove harmless error, the

government bears the burden of demonstrating that no grave doubt exists as to

whether the defendant would have received a more favorable sentence under an

advisory guidelines system. United States v. Perez-Ramirez, 415 F.3d 876, 878 (8th

Cir. 2005). We have found this burden met “where the district court states at
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sentencing that it would impose the same alterative sentence if the Guidelines were

deemed invalid.” United States v. Craiglow, 432 F.3d 816, 819 (8th Cir. 2005).

In this case, the Government asked the district court to impose an alternative

sentence “between the minimum and maximum of statutory punishment” to apply in

the event the guidelines-based sentence was invalidated. In response, the district court

pronounced an identical alternative sentence of 151 months “if the guidelines do not

apply.” While brief, this exchange is sufficient to show that no grave doubt exists as

to whether Bockes would have received a more favorable sentence absent Booker

error. See Craiglow, 432 F.3d at 819 (“Grave doubt does not exist even if the district

court’s alternative sentence assumes the Guidelines to be wholly unconstitutional and

not advisory.”); United States v. Thompson, 403 F.3d 533, 535-36 (8th Cir. 2005)

(holding, where “the district court insulated [the defendant’s] sentence by announcing

an identical alternative sentence should the Guidelines be held completely

unconstitutional,” that the district court’s pronouncement of an identical alternative

sentence “renders any remand futile”). Therefore, we find the district court’s use of

mandatory guidelines harmless in this instance.

III. CONCLUSION

We conclude that the district court did not err in finding that tampering with a

motor vehicle by operation is a crime of violence as defined by U.S.S.G. § 4B1.2 and

that the district court’s use of mandatory sentencing guidelines was rendered harmless

by the pronouncement of an identical alternative sentence. Therefore, we affirm the

sentence imposed by the district court.

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