United States v. Kenneth Jackson

199 F.3d 1279

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 5, 2000
• Docket: 99-11540
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 99-11540 Non-Argument Calendar ________________________

D. C. Docket No. 98-06229-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH JACKSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________ (January 5, 2000)

Before EDMONDSON, COX and HULL, Circuit Judges.

PER CURIAM: Kenneth Jackson appeals his sentence for possession with intent to distribute

cocaine base in violation of 21 U.S.C. § 841(a)(1). Jackson argues that he was

improperly sentenced as a career offender under U.S.S.G. § 4B1.1 because one of the

prior convictions relied upon by the district court in determining Jackson’s career

offender status was not a “crime of violence” under the definition provided by

U.S.S.G. § 4B1.2(a). Our de novo review of the district court’s legal interpretation

of the Sentencing Guidelines reveals no reversible error. See United States v. Webb,

139 F.3d 1390, 1392 (11th Cir. 1998).

At sentencing, Jackson objected to the inclusion of Jackson’s prior conviction

for possession of a fire bomb, in violation of Fla. Stat. § 806.111, as a crime of

violence under U.S.S.G. § 4B1.2(a). The district court overruled the objection,

concluding that because the offense consisted of possession plus the intent that the fire

bomb be willfully and unlawfully used to damage a structure or property by fire or

explosion, the crime entailed “conduct that presents a serious potential risk of physical

injury to another” within the definition of a crime of violence. U.S.S.G. §

4B1.2(a)(2).

On appeal, Jackson argues that the offense is not a crime of violence because

it did not involve any threat to another person and because it is improper to assume

that any structure or property intended to be damaged under the statute would be in

2 proximity to anyone so as to endanger another person. The Government responds that

an analysis of the statute’s elements supports the district court’s conclusion and that

Jackson’s conviction for possession of a fire bomb is analogous to other offenses

considered to be crimes of violence.

The Government has the better argument. A person who intends to damage a

structure or property by fire or explosion clearly participates in conduct that presents

a serious potential risk of physical injury to others. Even assuming that the structure

or property which is the target of a fire bomb is unoccupied, the fire or explosion

creates a danger to others. At a minimum, the fire fighters who are called to put out

a fire or deal with the aftermath of an explosion face a serious risk of physical injury.

In addition, bystanders could be injured, and the fire could spread to occupied

structures, endangering the persons in those structures. Furthermore, U.S.S.G. §

4B1.2(a) specifically lists arson as a crime of violence. Jackson’s contested offense

appears to be nothing more than a subcategory of arson that presents at least the same

potential risk of physical injury to another person as arson.

We conclude that the possession of a fire bomb with the intent to use it to

willfully damage any structure or property by fire or explosion, as defined by Fla.

Stat. § 806.111, is inherently conduct that presents a serious potential risk of physical

injury to another person. Accordingly, the district court properly concluded that

3 Jackson’s conviction for possession of a fire bomb under Fla. Stat. § 806.111 was a

crime of violence for career-offender purposes.

AFFIRMED.