UNITED STATES COURT OF APPEALS
Filed 7/5/96
TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-7023
(D.C. No. CR-95-51)
AMOS ELMER PERKINS, (E.D. Oklahoma)
Defendant-Appellant.
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ORDER AND JUDGMENT *
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Before BRORBY, EBEL and HENRY, Circuit Judges.
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After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Amos Perkins pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). He was sentenced to 65 months imprisonment.
In determining his sentence, Mr. Perkins received a base offense level of 20
because he had a prior conviction for a crime of violence. See USSG
§2K2.1(a)(4)(A). On appeal Mr. Perkins contends:
Oklahoma's manslaughter statute does not include as an
essential element the 'use, attempted use, or threatened use of
physical force against the person of another,' and is, therefore,
ambiguous, requiring the federal sentencing court to look beyond the
statutory count of conviction to determine whether violation of
Oklahoma's manslaughter statute is a 'crime of violence' for purposes
of sentencing enhancement under U.S.S.G. §2K2.1(a)(4)(A).
The district court rejected the above argument and found:
[A] crime of violence is defined in Section 4B1.2 of the
guidelines as any offense under federal or state law punishable by
imprisonment for a term exceeding one year that has, as an element,
the use, attempted use, or threatened use of physical force against the
person of another.
The commentary to the guidelines goes on to identify
manslaughter specifically as a crime of violence without regard to
underlying intent or lack thereof.
We agree with the district court's findings and affirm.
The Sentencing Guidelines define a crime of violence as:
(1) ... any offense under federal or state law punishable by
imprisonment for a term exceeding one year that
(i) has as an element the use,
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attempted use, or threatened
use of physical force against
the person of another, or
(ii) is burglary of a dwelling,
arson, or extortion, involves
use of explosives, or otherwise
involves conduct that presents
a serious potential risk of
physical injury to another.
USSG §4B1.2. The applicable commentary lists manslaughter among ten
specific offenses which by definition are considered crimes of violence under the
guidelines. USSG §4B1.2, comment. (n.2). Relying on the commentary to the
guidelines is "essential in correctly interpreting and uniformly applying the
guidelines on a national basis." United States v. Rutter, 897 F.2d 1558, 1561
(10th Cir.), cert. denied, 498 U.S. 829 (1990).
Mr. Perkins does not dispute that he has three prior state convictions of
first degree manslaughter for which he served a term of imprisonment greater than
one year. Instead, he claims the Oklahoma statute which defines first degree
manslaughter encompasses conduct that might not present serious potential risk of
injury to others. Because of the statute's ambiguity, Mr. Perkins contends the
government needed to produce the charging papers and court documents related to
the findings of guilt in the manslaughter cases to determine whether the
conviction was for a crime of violence.
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Although the government did not produce the above mentioned documents,
it did provide unchallenged evidence at the sentencing hearing and in the
presentence report that the manslaughter convictions stemmed from a car accident
in which three passengers were killed while Mr. Perkins was driving while under
the influence of alcohol. We are persuaded by the government's arguments that
driving a car with three passengers on public roads while under the influence of
alcohol constitutes conduct which presents "a serious risk of physical injury to
others."
For the above stated reasons the district court's order is AFFIRMED.
Entered for the Court
WADE BRORBY
United States Circuit Judge
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