___________ No. 95-1626

___________ United States of America, * * Appellee, * * v. * * Bobby Eugene McGee, * * Appellant. *

___________ No. 95-1699

___________ United States of America, * * Appellee, * * Appeals from the United States v. * District Court for the * Southern District of Iowa. George Charles Strable, Sr., * * [UNPUBLISHED] Appellant. *

__________ No. 95-2352

___________ United States of America, * * Appellee, * * v. * * Kelly Robert Hilpipre, * * Appellant. *

___________ Submitted: April 30, 1996 Filed: May 8, 1996

___________

### The HONORABLE RONALD E. LONGSTAFF, United States District 1 

### Judge for the Southern District of Iowa. -2- Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________
PER CURIAM. Bobby Eugene McGee, George Charles Strable, and Kelly Robert Hi lpipre pleade d guilty in the district court to conspiring to distribute and t o 1 possessing with intent to distribute cocaine, methamphetamine, an d marijuana, in violati on of 21 U.S.C. § 846. Hilpipre also pleaded guilty to being a felon in p ossession of a firearm and attempting to escape from federal c ustody, in violation of 18 U.S.C. §§ 922(g)(1) and 751(a). I n this consolidated appeal, McGee and Strable challenge their sentences ; Hilpipre challenges a proceeding collateral to h is conviction. We affirm.

I. STRABLE At sentencing, the district court co ncluded that Strable is a career offender; granted him a two-level reduction for accepting responsibility; granted the government's motion for a substantial-assistance departure fro m the applicable Guidelines range of 168 to 210 months; found no othe r grounds for departure; and sentenced Strable to 114 months in prison.

Strable c ontends that the district court erred in treating him as a career offender. We disagree. As pertinent her e, a defendant is a career offender if he has at least two prior convictions of a crime of violence. U.S.S.G. § 4B1.1. A "crime of violence" includes an offense under state lawpunishable by a prison term of more than a year that "is burglary of
a dwelling . . . or otherwise involves conduct that presents a seriou s poten tial risk of physical injury to another." U.S.S.G. § 4B1.2
. Strable's prior conviction for attempted burglar y of a commercial building qualifies as a

### -3-

crime o f violence. See United States v. Hascall , 76 F.3d 902, 904 (8t h Cir. 1996) (burglary of commercial building seriously risks physical injur y to another); United States v. Carpenter , 11 F.3d788, 790 (8th Cir. 1993), cert. de nied , 114 S. Ct. 1570 (1994) ("crime of violence" include s attempts).

Tu rning to Strable's remaining contentions, the district court di d not clearly err in awarding Strable a two-level reduction for acceptance of res ponsibility, rather than a three level reduction, because h e absco nded for three months after agreeing to plead guilty. See Unite d States v. Thompson , 60 F.3d 514, 517 (8th Cir. 1995). Strable failed to prove that he is entitled to a mitigating role reduction under U.S.S.G
. § 3B1.2. See Thompso n , 60 F.3d at 517. He did not argue to the district court that he deserves a departure under U.S.S.G. § 4A1.3 because hi s criminal history was overstated, and the court's failure to grant tha t departure was not pla in error. See Fritz v. United States , 995 F.2d 136, 137 (8th Cir. 1993), cert. denied , 114 S. Ct. 88 7 (1994). Finally, we may not review either the district court's discretionary refusal to depart, se e United States v. Jack son , 56 F.3d 959, 960 (8th Cir. 1995), or the extent of its substantial-as sistance departure, see United States v. Goodwin , 72 F.3d 88, 91 (8th Cir. 1995).

II. MCGEE

At sente ncing, the district court concluded that McGee is a caree r offe nder, granted the government's motion for a substantial-assistanc e departure , and sentenced him to 178 months in prison. On appeal, McGe e contends the district court erred in treating him as a career offender
. However, he does not contest use of two prior convictions for aggravated robbe ryand attempted arson, and in any event, his two prior attempte d burglary convictions are qualifying offenses under Hascall , 76 F.3d at 903

- 04, and Carpenter , 11 F.3d at 790.

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III. HILPIPRE The district court granted the government's motion for a substa ntialassistance departure and sentenced Hilpipre to 113 months in prison. On appeal, Hilpipre argu es for the first time that his constitutional rights were violated when he was denied appointed counsel at a state court civil forf eiture hearing that Hilpipre alleges was a critical phase of hi s subsequent federal co nviction. This issue was not raised in the district court, turns on facts not part of the district court record, and was waive d by Hilpipre's guilty plea.
The judgments of the district court are affirmed.
A true copy.

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