The Honorable Carol E. Jackson, United States District Judge for the Eastern 1 District of Missouri. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3565

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Darren Terrel Davis, * * [UNPUBLISHED] Defendant - Appellant. *

___________ Submitted: January 27, 1998 Filed: February 10, 1998

___________ Before FAGG, BEAM, and HANSEN, Circuit Judges.

___________ PER CURIAM. Darren Terrel Davis challenges the district court & s imposition of a 160-month 1 sentence after he pleaded guilty to possessing cocaine with intent to distribute, i n violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). We affirm.
For re versal, Davis first argues that the district court erred in not granting hi s motion for a downward departure. As we conclude the district court & s statements at-2-

sentencing evince a recognition of its authority to depart, we will not review the court & s refusal to depart. See United States v. Hall , 7 F.3d 1394, 1396 (8th Cir. 1993). Davis nex t argues that the district court violated due process when it enhanced his sentence pursuant to the career-offe nder provision, see U.S. Sentencing Guidelines Manua l§ 4B1.1 (1997), based on three Missouri convictions for second-degre e bu rglary. Specifically, he argues that, because Missouri law defines second-degre e burglary as one in which the dwelling is not occupied by an inhabitant when the crime is committed, second-degree burglary in Missouri is not a violent crime. We reject this argument for the reason tha t the Sentencing Guidelines' definition of crime of violence makes "burglary of a dwelli ng" a crime of violence without regard to wheth er or not the dwelling is occupied at the time of the burglary, unlike th e distinction drawn in Mi ssouri law. U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) (1997); United States v. McCl enton , 53 F.3d 584, 588 (3rd Cir.), cert. denied , 116 S. Ct. 330 (1995). All three of Davis's Missouri second deg ree burglary convictions were for burglarie s of an inhabitable structure, and his counsel conceded before the district court that "[i]n fac t, this is a crime that involves a burglary of a dwelling when no one is inside the dwelling." Trans. Sent. p. 11, ll. 2-4. We also reject this argument for the reasons stated i n United States v. Reynolds , 116 F.3d 328, 329 (8th Cir. 1997) (holding that second-degree burglary in violation of Missouri law qualifies defendant as career offender under Guidel ines; adding that, even if no one was present within building when defendant committed crime, seriou s potentia lrisk of physical injury to another was present and thus crime was violent)
. See a lso U.S. Sentencing Guidelines Manual § 4B1.2(a) (1997) (defining crime o f violence as, among other things, “conduct that presents a serious potential risk o f physical injury to another”).-3-

Accordingly, the district court & s judgment is affirmed. Davis's objection to the denial of his request for oral argument is overruled. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.