NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 10a0114n.06

No. 08-4174

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JERMAINE MCBEE,

Defendant-Appellant.

)

)

)

)

)

)

)

)

)

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OHIO

Before: GIBBONS, SUTTON and WHITE, Circuit Judges.

SUTTON, Circuit Judge. Jermaine McBee challenges his 262-month sentence—and most

particularly his status as a career offender. We affirm. 

McBee pleaded guilty (1) to possession of crack cocaine with the intent to distribute it and

(2) to being a felon in possession of a firearm. See 21 U.S.C. § 841(a)(1), (b)(1)(A); 18 U.S.C.

§ 922(g)(1). Over McBee’s objection, the district court determined that he had at least two prior

felony convictions of “a crime of violence,” making him a career offender. See U.S.S.G. § 4B1.1.

After further adjustments, the court calculated an advisory guidelines range of 262–327 months. The

court sentenced him to 262 months of incarceration and to 5 years of supervised release.

McBee claims that his prior burglary conviction under Ohio law, see O.R.C. § 2911.12(A)(4),

does not amount to a crime of violence. Yet we recently held otherwise in United States v. Skipper,
No. 08-4174

United States v. McBee

- 2 -

552 F.3d 489, 493 (6th Cir. 2009). Skipper, it is true, involved plain-error review, id. at 491, but step

one of the plain-error inquiry turns on whether any error occurred, and we found no error in treating

§ 2911.12(A)(4) as a crime of violence, id. at 493. The reality that McBee preserved an objection

in his case, while Skipper did not preserve one in his, thus does not help McBee.

Supplementing his counsel’s efforts, McBee filed a pro se letter brief describing the facts of

his burglary conviction and attempting to show that his crime was not a typical burglary. What

matters, however, are not the facts of the burglary but the reality that they led to a § 2911(A)(4)

conviction. In applying the career offender guidelines, we take a categorical approach to the inquiry,

focusing on the elements of the statute of conviction, not the underlying facts of the defendant’s prior

case. See Shepard v. United States, 544 U.S. 13, 17 (2005); United States v. Montanez, 442 F.3d

485, 489 (6th Cir. 2006).

McBee does not dispute that his felonious assault conviction counts as a second felony crime

of violence. All told, these two crimes of violence plus the instant controlled-substance offense

make him a career offender. See U.S.S.G. § 4B1.1. We thus need not decide whether two additional

convictions amounted to crimes of violence. Cf. United States v. Rone, 147 F. App’x 490, 492 (6th

Cir. 2005); United States v. Herrera, 375 F.3d 399, 406–07 (6th Cir. 2004). 

McBee separately challenges the substantive reasonableness of his sentence. But we have

no authority to address this issue because he waived the right to appeal the reasonableness of a
No. 08-4174

United States v. McBee

- 3 -

within-guidelines sentence in his plea agreement. See United States v. Dillard, 438 F.3d 675, 685

(6th Cir. 2006).

For these reasons, we affirm.