United States v. Gregory L. Lee

MANION, Circuit Judge, concurring.

I agree with the court’s determination that, based solely on the conduct as charged in the 1975 information, Lee’s conduct did not amount to the potential risk of injury to another for purposes of the “crime of violence” sentence enhancement of U.S.S.G. § 4B1.2(1). I write separately to emphasize that our opinion should not be read as categorically ruling that prior convictions for theft can never constitute a crime of violence. Rather, as the court points out, had the theft information expressly set out the aggressive steps Lee and the others took in pinning the victim’s arms behind her back and snatching her purse, then we would surely have a crime of violence. But the information before us contained no such detail and, as correctly set out by the court, a district court is not at liberty, pursuant to Application Note 2(B) of § 4B1.2(1), to look beyond the facts expressly charged in the information or indictment in determining whether to boost the defendant’s base offense level. Therefore I join the court’s conclusion that the district court’s application of the § 4B1.2(1) enhancement was in error.