___________

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 * [UNPUBLISHED]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.

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Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

PER CURIAM.

Bobby Eugene McGee, George Charles Strable, and Kelly Robert Hilpipre

pleaded guilty in the district court to conspiring to distribute and to

1

possessing with intent to distribute cocaine, methamphetamine, and

marijuana, in violation of 21 U.S.C. § 846. Hilpipre also pleaded guilty

to being a felon in possession of a firearm and attempting to escape from

federal custody, in violation of 18 U.S.C. §§ 922(g)(1) and 751(a). In

this consolidated appeal, McGee and Strable challenge their sentences;

Hilpipre challenges a proceeding collateral to his conviction. We affirm.

I. STRABLE

At sentencing, the district court concluded 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 from

the applicable Guidelines range of 168 to 210 months; found no other

grounds for departure; and sentenced Strable to 114 months in prison.

Strable contends that the district court erred in treating him as a

career offender. We disagree. As pertinent here, 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

law punishable by a prison term of more than a year that "is burglary of

a dwelling . . . or otherwise involves conduct that presents a serious

potential risk of physical injury to another." U.S.S.G. § 4B1.2.

Strable's prior conviction for attempted burglary of a commercial building

qualifies as a
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crime of violence. See United States v. Hascall, 76 F.3d 902, 904 (8th

Cir. 1996) (burglary of commercial building seriously risks physical injury

to another); United States v. Carpenter, 11 F.3d 788, 790 (8th Cir. 1993),

cert. denied, 114 S. Ct. 1570 (1994) ("crime of violence" includes

attempts).

Turning to Strable's remaining contentions, the district court did

not clearly err in awarding Strable a two-level reduction for acceptance

of responsibility, rather than a three level reduction, because he

absconded for three months after agreeing to plead guilty. See United

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 Thompson, 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 his

criminal history was overstated, and the court's failure to grant that

departure was not plain error. See Fritz v. United States, 995 F.2d 136,

137 (8th Cir. 1993), cert. denied, 114 S. Ct. 887 (1994). Finally, we may

not review either the district court's discretionary refusal to depart, see

United States v. Jackson, 56 F.3d 959, 960 (8th Cir. 1995), or the extent

of its substantial-assistance departure, see United States v. Goodwin, 72

F.3d 88, 91 (8th Cir. 1995).

II. MCGEE

At sentencing, the district court concluded that McGee is a career

offender, granted the government's motion for a substantial-assistance

departure, and sentenced him to 178 months in prison. On appeal, McGee

contends the district court erred in treating him as a career offender.

However, he does not contest use of two prior convictions for aggravated

robbery and attempted arson, and in any event, his two prior attempted

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 substantialassistance departure and sentenced Hilpipre to 113 months in prison. On

appeal, Hilpipre argues for the first time that his constitutional rights

were violated when he was denied appointed counsel at a state court civil

forfeiture hearing that Hilpipre alleges was a critical phase of his

subsequent federal conviction. This issue was not raised in the district

court, turns on facts not part of the district court record, and was waived

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.