1The Honorable Fernando J. Gaitan, Jr., United States District Judge for the

Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-3291

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri

Michael Schutte, *

* [UNPUBLISHED]

Appellant. *

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 Submitted: June 4, 1999

 Filed: June 30, 1999

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Before WOLLMAN, Chief Judge, and McMILLIAN and HANSEN, Circuit Judges.

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PER CURIAM.

Michael Schutte appeals from the final judgment entered in the United States

District Court1 for the Western District of Missouri upon a jury verdict finding him

guilty of conspiring to manufacture methamphetamine, in violation of 21 U.S.C. § 846

(Count 1); and attempting to manufacture methamphetamine, in violation of 21 U.S.C.

§ 846 (Count 2). The district court sentenced appellant as a career offender to 360

months imprisonment and 5 years supervised release on each count, to run
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concurrently. This appeal followed. After appellate counsel moved to withdraw

pursuant to Anders v. California, 396 U.S. 738 (1967), we granted Schutte permission

to file a pro se supplemental brief, but he has not done so. Counsel raises three issues

in the Anders brief: (1) Schutte was improperly classified as a career offender, because

his prior state conviction for stealing from the person did not qualify as a “crime of

violence” triggering career offender status; (2) the district court improperly included

in his criminal history two prior municipal court convictions; and (3) it would not have

been possible to manufacture methamphetamine with the chemicals involved in his

offense. For the following reasons, we affirm.

We review de novo the district court&s application of the Guidelines. See United

States v. Hascall, 76 F.3d 902, 903-04 (8th Cir.) (standard of review), cert. denied, 519

U.S. 948 (1996). A defendant is a career offender if (1) the defendant was at least

eighteen when he or she committed the instant offense, (2) the instant offense is a

felony that is a drug offense or crime of violence, and (3) the defendant has at least two

prior felony convictions for drug offenses or crimes of violence. See U.S.S.G. § 4B1.1

(1998).

Under the applicable Guidelines, a “crime of violence” is any offense that has

“as an element the use, attempted use, or threatened use of physical force” or that “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.”

See U.S.S.G. § 4B1.2(a)(1), (2) (1998). We believe Schutte’s stealing-from-the-person

conviction “involve[d] conduct that presents a serious potential risk of physical injury

to another” and thus qualified as a crime of violence. Schutte does not dispute the

description of underlying conduct in the presentence report: Schutte pointed a firearm

at the victim and took his jacket, Schutte’s accomplice held a sharp object against the

victim’s back, and Schutte pointed the gun at the victim as the victim fled. See

U.S.S.G. § 4B1.2, comment. (nn.1 & 2) (1998); United States v. Wright, 957 F.2d 520,

522 (8th Cir.), cert. denied, 506 U.S. 856 (1992).
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As to the issue of inclusion of the drug-paraphernalia and concealed-weapon

convictions in his criminal history, any error is harmless because the district court

correctly classified Schutte as a career offender, and thus he faces the same sentence,

win or lose. See U.S.S.G. § 4B1.1 (1998) (career offender’s criminal history category

in every case is category VI); United States v. Darden, 70 F.3d 1507, 1548-49 n.17

(8th Cir. 1995), cert. denied, 517 U.S. 1149, 518 U.S. 1026 (1996).

Last, to the extent Schutte is contending that the government failed to prove an

essential element of his attempt-to-manufacture-methamphetamine conviction, the

government did not need to prove Schutte could have manufactured methamphetamine

with the precursor chemicals as to which the government adduced evidence; it needed

to show only that he intended to manufacture methamphetamine and committed an act

constituting a substantial step toward that offense. See United States v. Wagner, 884

F.2d 1090, 1095-96 (8th Cir. 1989), cert. denied, 494 U.S. 1088 (1990).

Upon review of the record in accordance with Penson v. Ohio, 488 U.S. 75, 80

(1988), we find no non-frivolous issues. 

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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