UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4806

LEON WILSON, JR.,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

David A. Faber, District Judge.

(CR-00-52)

Submitted: May 22, 2001

Decided: June 19, 2001

Before WILKINS, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Kevin B. Burgess, HAMILTON, BURGESS, YOUNG & POLLARD,

Fayetteville, West Virginia, for Appellant. Rebecca A. Betts, United

States Attorney, John L. File, Assistant United States Attorney,

Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Leon Wilson, Jr., appeals his 71-month sentence for possession of

a firearm by a convicted felon, 18 U.S.C.A. §§ 922(g)(1), 924(a)(2)

(West Supp. 2000). Wilson claims that his base offense level was

improperly set at 24, based on his having two prior felony convictions

for crimes of violence. He contends first that the prior offenses were

not crimes of violence. Second, Wilson asserts that, because the

offenses were related, they should count only as one prior felony conviction. We affirm. 

A defendant convicted of being a felon in possession of a firearm

is assigned a base offense level of 24 if he has "at least two prior felony convictions of . . . a crime of violence." U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (1998). In 1994 Wilson was sentenced in

Michigan to five years probation on two counts of attempted third

degree criminal sexual conduct. The district court determined that

these convictions qualified as the requisite two predicate violent felonies. 

We agree with the district court that attempted third degree sexual

assault in Michigan constitutes a "crime of violence" under the guidelines. See USSG § 4B1.2(a)(2). Using a categorical approach (looking

first to the fact of conviction, then to the definition of the prior

offense) to decide whether the Michigan offenses were crimes of violence was not possible because of the statute’s ambiguity. The district

court therefore made its determination based upon the charging

document—here, the indictment. See United States v. Kirksey, 138

F.3d 120, 122-24 (4th Cir. 1998). The indictment, which charged Wilson with three separate counts of first degree criminal sexual conduct,

stated that Wilson had engaged in sexual intercourse with a minor,

age 13-14. The district court concluded that such activity presented

a serious risk of injury, including pregnancy and disease. Because the

Michigan indictment charged conduct that presented "a serious potential risk of physical injury to another," USSG § 4B1.2(a)(2), the district court did not err in finding that the two Michigan offenses were

crimes of violence. See also United States v. Sherwood, 156 F.3d 219,

2 UNITED STATES v. WILSON
221-22 (1st Cir. 1998); United States v. Coronado-Cervantes, 154

F.3d 1242 (10th Cir. 1998). 

The district court also correctly found that the Michigan offenses

constituted two predicate violent felonies under the guidelines. The

number of prior felony convictions for crimes of violence depends

upon whether criminal history points were assigned for each prior

conviction. USSG § 2K2.1, comment. (n.5). The Michigan sentences

were "related," USSG § 1B1.3, comment. (n.9(A)), which ordinarily

would require that they be treated as one prior sentence. USSG

§ 4A1.2(a)(1)-(2). However, because the prior sentences were for

crimes of violence, Wilson properly was assigned a second criminal

history point. USSG § 4A1.1(f). He therefore had the requisite two

prior felonies under USSG § 2K2.1(a)(2).

We therefore affirm. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials

before us and argument would not aid the decisional process. 

AFFIRMED

UNITED STATES v. WILSON 3