FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 17, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-11078

Non-Argument Calendar

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D. C. Docket No. 06-00196-CR-001

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JAMIE RABB, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Alabama

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(September 17, 2007)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Jamie Larell Rabb appeals the 151-month sentence he received following his

guilty plea to knowingly and intentionally possessing with the intent to distribute

crack cocaine in violation of 21 U.S.C. § 841(a)(1), and being a felon in possession
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of a firearm in violation of 18 U.S.C. § 922(g)(1). On appeal, Rabb argues that the

district court incorrectly classified his 1995 conviction for discharging a firearm

into a dwelling as a crime of violence, for the purposes of the career offender

provision of U.S.S.G. § 4B1.1. Rabb bases this argument on the statute defining

his offense, § 13A-11-61(a) of the Alabama Code, and its distinction between

discharges in occupied dwellings and discharges in unoccupied dwellings, for

sentencing purposes. We review the preliminary determination that a prior

conviction qualifies as a “crime of violence” de novo. United States v. OrtizDelgado, 451 F.3d 752, 754 (11th Cir. 2006). After careful review, we affirm.

A defendant is classified as a career offender if the defendant was at least 18

years of age at the time of the commission of the instant offense, the instant offense

was a crime of violence or a controlled substance offense, and the defendant has at

least two prior convictions for crimes of violence or controlled substance offenses.

U.S.S.G. § 4B1.1(a). Section 4B1.2, in turn, defines the term “crime of violence”

as including, inter alia, “any offense punishable by a term of imprisonment

exceeding one year 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.” U.S.S.G. § 4B1.2(a). 
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In United States v. McGill, 450 F.3d 1276, 1280 (11th Cir. 2006), we

observed that the definition of conduct that presents “a serious potential risk of

physical injury to another,” within the meaning of § 4B1.2(a)(2), is broadly

interpreted “to include crimes that do not fit neatly into a category of hostile,

aggressive acts.” We noted that “the specific language of § 4B1.2(a)(2) concerns

the potential risk of physical injury rather than the actual use of force against

another. . .” Id. at 1281. In determining whether a felony is a crime of violence,

for purposes of § 4B1.2(a)(2), we need consider only whether the conduct

proscribed creates a substantial risk of physical injury to another. Id. at 1282. We

need not find a high probability of harm to another person, but rather a mere

possibility that harm to another person could occur is enough under the Guideline.

United States v. Searcy, 418 F.3d 1193, 1197 (11th Cir. 2005), cert. denied, 126

S.Ct. 1107 (2006). 

The Alabama statute under which Rabb was convicted provides that “[n]o

person shall shoot or discharge a firearm, explosive or other weapon which

discharges a dangerous projectile into any occupied or unoccupied dwelling or

building or railroad locomotive or railroad car, aircraft, automobile, truck or

watercraft in this state.” Ala. Code § 13A-11-61(a) (emphasis added). The statute

makes no distinction between occupied and unoccupied dwellings, for purposes of
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defining the crime. Although the statute goes on to make the discharge into an

occupied dwelling a Class B felony, while the same act into an unoccupied

dwelling is a Class C felony, the distinction is made for sentencing purposes only.

See Ala. Code § 13A-11-61. Thus, a defendant commits the offense proscribed by

§ 13A-11-61, whether the dwelling is occupied or not, and the proscribed offense

is a crime of violence, within the meaning of U.S.C. § 4B1.2(a)(2), because there is

a potential risk of physical injury, which is the only showing our caselaw requires.

We are unpersuaded by any of Rabb’s other arguments. Accordingly, we affirm.

AFFIRMED.