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* [UNPUBLISHED]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, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). We affirm.

For reversal, Davis first argues that the district court erred in not granting his

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 next argues that the district court violated due process when it enhanced

his sentence pursuant to the career-offender provision, see U.S. Sentencing Guidelines

Manual § 4B1.1 (1997), based on three Missouri convictions for second-degree

burglary. Specifically, he argues that, because Missouri law defines second-degree

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 that the Sentencing Guidelines' definition

of crime of violence makes "burglary of a dwelling" a crime of violence without regard

to whether or not the dwelling is occupied at the time of the burglary, unlike the

distinction drawn in Missouri law. U.S. Sentencing Guidelines Manual § 4B1.2(a)(2)

(1997); United States v. McClenton, 53 F.3d 584, 588 (3rd Cir.), cert. denied, 116 S.

Ct. 330 (1995). All three of Davis's Missouri second degree burglary convictions were

for burglaries of an inhabitable structure, and his counsel conceded before the district

court that "[i]n fact, 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 in 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 Guidelines; adding that, even

if no one was present within building when defendant committed crime, serious

potential risk of physical injury to another was present and thus crime was violent).

See also U.S. Sentencing Guidelines Manual § 4B1.2(a) (1997) (defining crime of

violence as, among other things, “conduct that presents a serious potential risk of

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.