Jаmes Lonczak appeals his 120-month sentence imposed following his guilty plea to two counts of arson on the public domain, in violation of 18 U.S.C. § 1855 (1988). Lonc-zak contends the district court erred by sentencing him as a career offender under United States Sentenсing Guidelines (“U.S.S.G.”) §§ 4B1.1 and 4B1.2 (Nov. 1989). He argues that his prior felony conviction on June 7, 1965 for child stealing, in violation of California Penal Code § 278 (1901 Cal.Stat. Ch. 106 § 1) (repealed 1976), was not a “crime of violence.” We have jurisdiction under 28 U.S.C. § 1291 (1988) and 18 U.S.C. § 3742 (1988), and we affirm.
The district court’s determination that Lonczak is a career offender requires an interpretation of the guidelines, and is therefore reviewed de novo.
United States v. Becker,
Under the guidelines in effect at Lonczak’s sentencing on December 18, 1989, “crime of violence” is defined as follows:
*181 (1) The term “crime of violence” means any offense under federal or state law punishable by imprisonment for a term exceeding one year that—
(i) has as an element the use, 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.
U.S.S.G. § 4B1.2(l)(i) & (ii) (Nov. 1989).
At the time of Lonczak’s 1965 conviction for child stealing, California Penal Code § 278 рrovided:
Every person who maliciously, forcibly, or fraudulently takes or entices away any minor child with intent to detain and conceal such child from its parent, guardian, or any other person having the lawful charge of such child, is punishable by imprisonment in the state prison not exceeding twenty years.
Cal.Penal Code § 278 (1901 Cal.Stat. Ch. 106 § 1) (repealed 1976). 1
Under this statute, a defendant could be convicted of child stealing without the use, attempted use, or threatened use of force against another. Thus, on its face, the statute does not satisfy the definition of a “crime of violence” under section 4B1.2(l)(i).
See United States v. Potter,
The application notes to U.S.S.G. § 4B1.2 in effect at Lonczak’s sentencing state that if the offense is not one of the enumerated crimes of violence, 3 and does not have as an element thе use, attempted use, or threatened use of physical force against another, the offense qualifies as a crime of violence if “the conduct set forth in the count of which the defendant was convicted involved the use of explosives, or, by its nаture, presented a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2, comment, (n. 2) (Nov. 1, 1989) (emphasis added).
In
United States v. Sahakian,
We consider whether Lonczak’s 1965 California conviction for child stealing satisfies the “conduct” prоng of the analysis. This involves an examination of the conduct charged in the count of conviction. Id. The *182 language of the November 1, 1991 clarifying amendment to Application Note 2 supports this interpretation. Id. The 1991 amendment states that:
[T]he conduct set forth (ie., expressly charged) in the count of which the defendant was сonvicted ... by its nature, presented a serious potential risk of physical injury to another. Under this section, the conduct of which the defendant was convicted is the focus of inquiry.
U.S.S.G. § 4B1.2, comment, (n. 2) (Nov. 1, 1991) (emphasis added). 4
We were not provided with the indictment in Lonczak’s 1965 сhild-stealing conviction. We know, however, that he was convicted of child stealing under California Penal Code § 278 (1901 CaLStat. Ch. 106 § 1) (repealed 1976). His conviction under this statute means that the conduct with which he was charged had to be conduct in violation of the statute. Under the statute, this conduct was either maliciously, forcibly, or fraudulently taking or enticing away a child with intent to detain and conceal the child from its parent, guardian or other person having lawful charge of the child. The conduct described by this statute is conduсt which “presents a serious potential risk of physical injury to another” under the “otherwise” clause of U.S.S.G. § 4B1.2(l)(ii) (Nov. 1989).
This analysis is consistent with our analysis in
United States v. Huffhines,
Because we can determine by looking at the child-stealing statute under which Lonc-zak was convicted that his charged conduct had to present a serious potential risk of physical injury to another, we nеed not examine the indictment that led to his 1965 conviction.
Cf. Sahakian,
Our determination that Lonczak’s 1965 conviction of child stealing is a conviction of a “crime of violence” under U.S.S.G. § 4B1.2(l)(ii) is also supported by our discussion of the
Armed
Career Criminal Act, 18 U.S.C. § 924(e), in
United States v. Sherbon-dy,
In
Sherbondy,
we held that the underlying facts of a conviction should not be examined to determine whether California Penal Code § 136.1(c)(1) (1988) (preventing or dissuading
*183
a witness from testifying) is a “violеnt felony” for purposes of sentence enhancement under section 924(e)(2)(B).
Sherbondy,
In
Wilborn v. Superior Court of Humboldt County,
Lonczak’s conduct in either maliciously, forcibly, or fraudulently taking or enticing away the child victim, with intent to detain or conceal the child from its parent or guardian, in violation of California Penal Code § 278 offers the same serious potential risk of physical injury to the stolen child as kidnapping does to a kidnapped person. We hold, therefore, that Lonczak’s сonviction for child stealing as defined in the former California Penal Code § 278 (1901 Cal.Stat. Ch. 106 § 1) (repealed 1976) is a crime of violence for purposes of determining career offender status under U.S.S.G. § 4B1.2(l)(ii). 7
The district court did not err in sentencing Lonczak as a careеr offender under U.S.S.G. §§ 4B1.1 and 4B1.2 (Nov. 1989).
AFFIRMED.
Notes
. The current version of California Penal Code § 278 was enacted in 1976 and amended in 1976, 1983 and 1984. It provides:
Every person, not having a right of custody, who maliciously takes, detains, conceals, or entices away, any minor child with intent to detain or сonceal that child from a person, guardian, or public agency having the lawful charge of the child shall be punished by imprisonment in the state prison for two, three or four years, a fine of not more than ten thousand dollars ($10,000), or both, or imprisonment in a county jаil for a period of not more than one year, a fine of not more than one thousand dollars ($1,000), or both.
Cal.Penal Code § 278 (West 1988 & Supp.1993).
. At Lonczak’s sentencing hearing, the government argued that the court should consider the underlying facts of Lonczak’s child-stealing conviction. The district court did not indicate whether it took the underlying facts into account. As we state hereafter, the underlying facts of Lonczak's child-stealing conviction are not at issue in a determination whether it was a "crime of violence” under U.S.S.G. § 4B1.2(l)(ii).
United States v. Robinson,
." 'Crime of violence’ includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.” U.S.S.G. § 4B1.2, comment, n. 2 (Nov. 1989).
. While this application note was not in effect at Lonczak's sentencing, it is proper for a reviewing court interpreting the guidelines to consider amendment language that the Commission states is intended to clarify the meaning of a guideline provision.
See United States v. Restrepo,
. The commentary to U.S.S.G. § 4B1.4, the armed career criminal provision to the guidelines, states that "[i]t is to be noted that the definitions of violent felony’ and ‘serious drug offense' in 18 U.S.C. § 924(e)(2) are not identical to the definitions of ‘crime of violence’ and ‘controlled substance offense’ used in § 4B1.1 (Career Offender)...." U.S.S.G. § 4B1.4, comment. n. 1 (Nov. 1990). 18 U.S.C. § 924(e)(2) reads in pertinent part:
(B) the term ‘‘violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructivе device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, extortion, involves the use of exрlosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B)(i) & (ii) (emphasis added). The emphasized portions of the text indicate the points where section 924(e)(2)(B) differs from section 4B1.2(l)(i) & (ii). Another difference between the guidelines and section 924(e)(2)(B) is gleaned from the commentary to section 4B1.2. The commentary includes aiding and abetting, conspiring, and attempting to commit ‘‘crimes of violence” and “controlled substance offenses.” U.S.S.G. § 4B1.2, comment. *183 n. 1 (Nov. 1990). However, as illustrated above, the basic definition of "violent felony” under section 924(e)(2)(B)(i) & (ii) is identical to the definition of "crime of violence” under U.S.S.G. § 4B1.2(l)(i) & (ii).
Although section 924(e) does not include the commentary language directing the court to focus upon the defendant's chаrged conduct found in U.S.S.G. § 4B1.2, that commentary does not alter the basic analysis of what kind of conduct constitutes a crime of violence.
. As noted in note 3, supra, kidnapping is a predicate crime for career offender status under application note 2 to section 4B1.2.
. At the time of Lonczak's conviction, California treated child stealing in the context of parental custody or visitation rights by court order under California Penal Code § 279 (1965 Cal.Stat. Ch. 194 § 1) (repealed 1976). That crime was a misdemeanor. The version of section 278 under which Lonczak was convicted was interpreted to extend to a parent not having lawful physical charge of the minor.
People
v.
Irwin,