United States v. Marschinke

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 1, 2001
• Docket: 00-10917
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________

No. 00-10917 Conference Calendar ________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PAUL ALLEN MARSCHINKE,

Defendant-Appellant.

---------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CR-40-1-G ------------------------ October 1, 2001

ON PETITION FOR REHEARING

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for panel rehearing is

GRANTED and the opinion previously filed in this case is

WITHDRAWN.

Paul A. Marschinke appeals from his sentence imposed for his

guilty-plea conviction of possession of a firearm by a felon, a

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He contends

that the court erred in increasing his base offense level

pursuant to U.S.S.G. § 2K2.1(a)(2), on the ground that he

allegedly had prior convictions of at least two “crimes of No. 00-10917 -2–

violence.” He maintains that neither his 1992 breaking-and-

entering conviction in New Mexico nor his 1996 Texas conviction

of unauthorized use of a motor vehicle (“UUMV”) qualified as

“crimes of violence” under the applicable definition of that term

in § 4B1.2.

We recently held that a Texas UUMV conviction categorically

qualifies as a “crime of violence.” United States v. Jackson,

220 F.3d 635, 639 (5th Cir. 2000), cert. denied, 121 S. Ct. 1640

(2001). Moreover, the count of conviction underlying

Marschinke’s New Mexico breaking-and-entering offense expressly

charged that Marschinke broke into a private dwelling. Because

breaking into a private residence almost always presents a

“‘substantial risk that force will be used,’” see United States

v. Claiborne, 132 F.3d 253, 254 (5th Cir. 1998) (citation

omitted), the district court properly considered the New Mexico

conviction to be a “crime of violence.” See § 4B1.2(a)(2)

(“crime of violence” includes offenses that “involve[ ] conduct

that presents a serious potential risk of physical injury to

another”).

AFFIRMED.