DUHÉ, Circuit Judge:
The appellant challenges the district court's application of Sentencing Guidelines §§ 4B1.1 and 4B1.2, the "career offender" provisions, to enhance his sentence for firearm possession by a convicted felon. Finding no error, we affirm.
Facts and Proceedings Below
Convicted felon Gary Goodman left a pool hall armed with a bottle of tequila and proceeded to the home of a female companion. At the home of his companion's neighbor, several people had gathered for a backyard barbecue. Appearing very drunk, Goodman entered the backyard area and engaged in a heated argument with one of the guests regarding a stolen truck. Although the hostess spoke no English, she became upset by the tone of the argument and asked Goodman to leave. He complied with her request and drove off.
Goodman returned to the backyard party thirty minutes later after retrieving a .38 caliber pistol from his home. Goodman pulled the pistol from his pocket and pointed it at the group gathered in the backyard.
Undaunted and anxious to retrieve his lost pistol, Goodman returned home once more to secure a .22 caliber rifle. He returned to the scene of the evening's prior activities only to find that the party-goers had dispersed. Still intoxicated, Goodman left for the last time and went in his vehicle in search of some friends to assist him in retrieving the pistol. En route, he ran a stop sign and careened into a ditch. The investigating highway patrol officer performed a field sobriety test, issued Goodman a DWI citation, and took him into custody.
Goodman was indicted for two counts of being a convicted felon in possession of a firearm in violation of 18 U.S.C. 922(g).
Standard of Review
The standard of review regarding guideline sentencing is statutorily defined. Goodman's sentence must be upheld unless he demonstrates that it was imposed in violation of the law, as a result of an incorrect application of the guidelines, or was outside the range of the applicable guidelines and was unreasonable. 18 U.S.C. § 3742(e); United States v. Ebertowski, 896 F.2d 906 (5th Cir.1990). This
"A Crime of Violence"
U.S.S.G. § 4B1.1 permits the imposition of an enhanced sentence if the defendant is a "career offender." The guidelines define "career offender" as someone who (1) is at least eighteen years old at the time of the instant offense, (2) commits a felony which is either a crime of violence or a controlled substance offense, and (3) has at least two prior violent felony or controlled substance convictions. U.S.S.G. § 4B1.2 incorporates the definition for "crime of violence" contained in 18 U.S.C. § 16.
The question of whether possession of a firearm by a convicted felon constitutes a "crime of violence" is one of first impression in this circuit. The conclusions of other courts in this regard, however, are persuasive. In United States v. Thompson, 891 F.2d 507 (4th Cir.1989), cert. den., ___ U.S. ___, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990), the court considered whether pointing a gun at a person, a violation of a South Carolina penal statute, was a crime of violence. The court concluded that this is an act which by its nature involves a substantial risk of the attendant use of physical force or violence. Citing South Carolina cases in which the pointing of a firearm was generally accompanied by acts of physical violence, the court stated that their conclusion "derives from common sense." Thompson, 891 F.2d at 509.
In United States v. Williams, 892 F.2d 296 (3d Cir.1989), cert. den., ___ U.S. ___, 110 S.Ct. 3221, 110 L.Ed.2d 668 (1990), the court specifically addressed whether a violation of 18 U.S.C. § 922(g) was a crime of violence for the purpose of enhanced sentencing. While intoxicated, Williams had entered the home of his sister, pointed a loaded gun at his brother-in-law, and fired the gun while chasing his brother-in-law through the house. Drawing an analogy to the examples given in the Commentary, the court concluded that "possessing a gun while firing it ... is a crime of violence." Williams, 892 F.2d at 304.
Relying on Williams, the Seventh Circuit in United States v. McNeal, 900 F.2d 119 (7th Cir.1990) concluded that possession of a firearm, where the evidence indicated it had been fired, constituted a crime of violence under § 4B1.1. The court acknowledged two district court cases, United States v. Johnson, 704 F.Supp. 1398 (E.D.
Under U.S.S.G. § 1B1.3(b), "[t]o determine the ... applicability of the career offender and criminal livelihood guidelines, the court shall consider all conduct relevant to a determination of the factors enumerated in [§ 4B1.1 and 4B1.2]." The Background to the Commentary indicates that "conduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range."
The evidence indicates that Goodman, in an intoxicated and agitated state, became involved in an altercation with a pistol, was disarmed, and later returned to the scene of the scuffle with another weapon, the .22 caliber rifle. By his own admission, he was en route to recover the pistol, armed with the rifle and presumably prepared to use it, when fate intervened and sent him careening into a ditch. Considering Goodman's intent at the time of his apprehension, this court is unwilling to require Goodman's potential victims to wait until the trigger is pulled before we consider his act a "crime of violence." We find no error in the district court's use of the career offender enhancement.
For the foregoing reasons, the judgment of the district court is
As these authorities imply, the district court need not make specific findings with regard to undisputed facts, or facts not challenged in the objections to the PSR. In his objections, Goodman requested that the court "take into consideration his intent at the time of the altercation with the Mexican males," apparently referring to the incident involving the .38 caliber pistol only. At the evidentiary hearing, after the district court judge announced his findings regarding only the .38 caliber pistol, and after some unrelated objections were dismissed, Goodman's attorney stated, "[a]ll of our issues have been addressed by the court." The evidence regarding Goodman's intent to use the .22 caliber rifle, based on Goodman's admissions to the highway patrolman, established facts relating to Goodman's plans to use the .22 rifle in retrieving his lost pistol. These facts are contained in the record and were apparently uncontested. We find remand unnecessary.