United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3951WMKC

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United States of America, *

*

Appellee, *

* On Appeal from the

v. * United States District Court

* for the Western District

* of Missouri.

Glenn G. Reynolds, *

*

Appellant. *

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Submitted: June 10, 1997

 Filed: June 19,

1997

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Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and

WOLLMAN, Circuit Judge.

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RICHARD S. ARNOLD, Chief Judge.

In this case we again reaffirm the rule of this Circuit that seconddegree burglary
 The Hon. Howard F. Sachs, United States District Judge for the Western

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District of Missouri.

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is a "crime of violence" for sentencing purposes under Section 4B1.2(1)(ii)

of the Sentencing Guidelines. 

I.

Glenn G. Reynolds, a convicted felon, was charged with possession of

several firearms, in violation of 18 U.S.C. §922(g)(1). The statutory

maximum sentence is ten years. 18 U.S.C. §924(a)(2). Reynolds pleaded

guilty. As originally computed in the presentence report, his adjusted

offense level was 19. With a Criminal History Category of VI, this offense

level produces a guideline range of five years and three months to 6 1⁄2

years. The District Court determined, however, that one of Reynolds's

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many previous convictions, a 1986 second-degree burglary, should be treated

as a "crime of violence." Reynolds concededly had one other such

conviction, so this decision meant that he would be classified as a "career

offender" under U.S.S.G. §4B1.1. This classification produced a sentencing

range of seven years and eight months to nine years and seven months. The

Criminal History Category was unchanged. 

The District Court imposed a sentence of eight years and four months

(100 months), followed by three years' supervised release, a fine of

$3,000, to be paid in installments, and the mandatory special assessment

of $50. 
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II.

The question presented is how to classify Reynolds's second-degree

burglary conviction. Because this issue has been thoroughly ventilated in

previous opinions of this Court, we shall keep our discussion brief. 

United States v. Nimrod, 940 F.2d 1186, 1188 (8th Cir. 1991), holds

that second-degree burglary in violation of Missouri law qualifies a

defendant as a career offender under §4B1.1. The holding was not limited

to "a special subclass of burglaries that involve especially dangerous

conduct." Id. at 1188-89. United States v. Hascall, 76 F.3d 902 (8th

Cir. 1996), makes it clear that this holding applies to burglaries of

commercial buildings (as is the case here). The convictions at issue in

Hascall were under Iowa law, but that difference doesn't matter, because

one of the bases of Hascall is Taylor v. United States, 495 U.S. 575, 598

(1990), adopting, for related purposes, a "generic definition [one might

almost say a per se definition] of burglary." 76 F.3d at 904. It is the

generic elements of burglary that matter - unlawful entry into a building

to commit a crime - not the details of particular state statutes or the

special circumstances of individual cases. 

We are bound by Nimrod and Hascall. The latter opinion, in

particular, discusses and rejects, at some length, most of the arguments

made by Reynolds in this case. Appellant argues that Hascall is wrong, but

we are not at liberty to consider that argument. One panel may not

overrule another. 

Appellant also cites United States v. Fountain, 83 F.3d 946, 950 (8th

Cir. 1996), as authorizing a different approach. In Fountain, he says,

this Court examined the
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particulars of the conduct underlying the burglary conviction before

deciding that it amounted to a "crime of violence." The point is not

insubstantial, but it is ultimately unavailing. The text of the relevant

part of Fountain reads as follows: 

As indicated, Fountain was convicted of

burglarizing a garage. The burglary in question

was in progress when interrupted by the

homeowner, an off-duty police officer. Fountain

and his accomplice were armed with a loaded

revolver, which was pointed at the

officer/homeowner. The officer/homeowner then

fired his weapon at the burglars and they fled. 

Under the circumstances, we have no difficulty

finding that the incident "otherwise involves

conduct that presents a serious potential risk of

physical injury to another." See United States v.

Hascall, 76 F.3d 902, 904 (8th Cir. 1996) (seconddegree burglary of a commercial building qualifies

as a crime of violence under section 4B1.2); see

also United States v. Cornelius, 931 F.2d 490, 493

(8th Cir. 1991) (use of weapon signifies a crime

of violence).

83 F.3d at 950.

We think this passage is best understood as an alternative

holding, something like this: "The generic theory of Hascall controls,

but even if it didn't, this was still a 'crime of violence' because of

what happened during this particular burglary." To read this passage as

disavowing the generic or per se approach of Hascall would be to

attribute to the Fountain Court a sub silentio overruling of Hascall in

a paragraph that itself cites Hascall with approval. As we have said

many times, most recently in this very opinion, one panel may not

overrule another, and we believe the Fountain panel was as well aware of

that rule as we are.
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We add, though it is not necessary, that this result makes sense

even if we were to consider the particulars of Reynold's underlying

conduct in the present case. The building he burglarized was a

commercial structure, not a dwelling, and no one was there at the time. 

The building belonged to his employer. It was Reynolds's place of work. 

We accept his statement that he did not intend to harm anyone, and that

he would not have broken into the building if he had thought that

someone was inside. This is all beside the point. The relevant portion

of U.S.S.G. §4B1.2(1)(ii) defines "crime of violence" to include

"conduct that presents a serious potential risk of physical injury to

another." (Emphasis ours). That no one was injured in fact is not

dispositive. Breaking into a building by its very nature involves a

"serious potential risk of physical injury," either to someone who

happens to be in the building, or to someone, for example a police

officer, who happens to pass by while the crime is being committed. 

Reynolds did not and could not know, ex ante, that no one was in the

building, or that no one would happen upon him. 

Affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.