concurring.
Christopher Michael Mohr’s case is an example of the misconception that the guidelines have been successful at reducing sentencing disparities. Mohr’s sentence is more than double that which similar defendants throughout the country would expect to receive under the guidelines, due solely to our circuit’s interpretation of what constitutes a “crime of violence” for purposes of the career offender enhancement. We have adhered to the fiction that every burglary of a commercial building is a “crime of violence” as defined by the guidelines. This view has been rejected by nearly every circuit to consider the issue, and I suggest our circuit reconsider the matter.
The guideline provisions concerning the career offender enhancement are well-established, and warrant additional discussion here. As relevant to Mohr’s case, a defendant convicted of a controlled substance offense must be treated as a career offender, and accordingly sentenced much more severely, if he has two prior felony convictions for crimes of violence. USSG § 4B1.1. Crimes of violence include “burglary of a dwelling, arson, or extortion,” and those which “involve! ] the use of explosives, or otherwise involve!] conduct that presents a serious potential risk of physical injury to another.” USSG § 4B 1.2(a) (2).
One of Mohr’s qualifying “violent” offenses was a Minnesota conviction for burglary in third degree. See Minn.Stat. § 609.582, subd. 3. This conviction could not be considered “burglary of a dwelling” for purposes of the career offender enhancement. Compare Minn.Stat. § 609.582, subd. 2(a) (specifically listing the elements of burglary in the second degree to include entering a dwelling), with Minn.Stat. § 609.582, subd. 3 (omitting any reference to dwellings and referring only to unlawful entry of a “building” for the offense of burglary in the third degree). Nevertheless, Mohr’s third degree burglary conviction was considered to be a violent offense because, as the majority notes, our court has held that “burglary always creates a ‘serious potential risk of physical injury to another.’ ” Ante at 860 (quoting United States v. Hascall, 76 F.3d 902, 905 (8th Cir.1996)); see also USSG 4B1.2(a)(2) (directing sentencing courts to treat convictions as crimes of violence if the underlying conduct created “serious potential risk of physical injury to another”). Time and again, our circuit has reaffirmed this approach of characterizing all burglaries as violent crimes, regardless of the underlying circumstances. See United States v. Blahowski, 324 F.3d 592, 595 (8th Cir.2003) (collecting cases).
Perhaps in the abstract, such an approach has some appeal. Hascall recognized that the threat of some physical injury was inherent in the commission of any burglary, a point beyond dispute. Hascall, 76 F.3d at 904-05. Certainly, the guidelines themselves acknowledge this principle by specifying that burglaries of dwellings must always be considered crimes of violence. USSG § 4B1.2(a)(2). Notably, though, the guidelines do not mandate that sentencing courts always treat burglaries of commercial buildings as violent crimes; they are silent on the issue. Circuits have split on the precise meaning of this omission, but they are nearly unanimous in holding that burglaries of commercial buildings should not generally be treated as violent crimes. See, e.g., United States v. Wilson, 168 F.3d 916, 920 (6th Cir.1999) (holding that while certain burglaries of a commercial building may qualify as crimes of violence, “the burglary of a non-dwelling is not a crime of violence per se under [the guidelines]”); United States v. Nelson, 143 F.3d 373, *863374-75 (7th Cir.1998) (declining to adopt a per se rule that burglaries of commercial buildings are crimes of violence); United States v. Harrison, 58 F.3d 115, 119 (4th Cir.1995) (declining to apply the career offender enhancement when there was no evidence that predicate convictions involved burglaries of dwellings since “under USSG § 4B1.2 only burglary of a dwelling constitutes a crime of violence”); United States v. Spell, 44 F.3d 936, 938 (11th Cir.1995) (“By explicitly including the burglary of a dwelling as a crime of violence, the Guidelines intended to exclude from the violent crime category those burglaries which do not involve dwellings and occupied structures.”); United States v. Smith, 10 F.3d 724, 730-34 (10th Cir.1993) (holding that burglary of a commercial office is not a crime of violence). Only one circuit, save our own, has maintained that burglaries of unoccupied, commercial buildings are always classified as violent crimes for purposes of the career offender enhancement. See United States v. Rodriguez, 311 F.3d 435, 438-39 (1st Cir.2002) (reaffirming in dicta its holding in United States v. Fiore, 983 F.2d 1 (1st Cir.1992), that burglaries of commercial buildings are crimes of violence due to the risk of injury associated with such conduct).
I believe our circuit-joined only by one other circuit to speak on the issue-has far too broad a conception of what the guidelines mean by stating that violent crimes include “conduct that presents a serious potential risk of physical injury to another.” USSG § 4B1.2(a)(2). Certainly, the risk of physical injury exists in nearly every felony. The guidelines, however, focus on whether that risk is a serious one, not just an abstract possibility. To my mind, our circuit’s approach, which unequivocally holds that the risk always exists in burglaries of commercial buildings, does not adequately consider the conduct underlying such convictions. For instance, Mohr’s burglary conviction, or “violent crime,” was for acting as a look-out while his two accomplices broke the office of Mohr’s former employer, the Auto Doctor, to steal electronic equipment. Obviously, the potential risk of injury was present in the crime, but without any indication that the business was occupied, the gravity of that risk was not significant enough to characterize the crime as a violent one. In this circuit, however, we ignore the reality of a defendant’s underlying conduct and charged offense, and focus solely on the question of whether the defendant was convicted of burglary or some derivation thereof.
Our panel is not at liberty to overturn our prior precedent, although our court may do so en banc. If our court fails to correct its missteps en banc and the Supreme Court does not clarify the qualifications for predicate career offender convictions, significant sentencing disparities will continue to exist based solely on the circuit in which a federal defendant is sentenced.