United States v. Jermaine McBee
364 F. App'x 991
6th Cir.
2010
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UNITED STATES of America, Plaintiff-Appellee, v. Jermaine McBEE, Defendant-Appellant.

No. 08-4174.

United States Court of Appeals, Sixth Circuit.

Feb. 22, 2010.

365 Fed. Appx. 665

Before: GIBBONS, SUTTON and WHITE, Circuit Judges.

SUTTON, Circuit Judge.

Jermaine McBee challenges his 262-month sentence—and most particularly his status as a career offender. We affirm.

McBee pleaded guilty (1) to possession of crack cocaine with the intent to distribute it and (2) to being a felon in possession of a firearm. See 21 U.S.C. § 841(a)(1), (b)(1)(A); 18 U.S.C. § 922(g)(1). Over McBee‘s objection, the district court determined that he had at least two prior felony convictions of “a crime of violence,” making him a career offender. See U.S.S.G. § 4B1.1. After further adjustments, the court calculated an advisory guidelines range of 262-327 months. The court sentenced him to 262 months of incarceration and to 5 years of supervised release.

McBee claims that his prior burglary conviction under Ohio law, see O.R.C. § 2911.12(A)(4), does not amount to a crime of violence. Yet we recently held otherwise in . Skipper, it is true, involved plain-error review, , but step one of the plain-error inquiry turns on whether any error occurred, and we found no error in treating § 2911.12(A)(4) as a crime of violence, . The reality that McBee preserved an objection in his case, while Skipper did not preserve one in his, thus does not help McBee.

Supplementing his counsel‘s efforts, McBee filed a pro se letter brief describing the facts of his burglary conviction and attempting to show that his crime was not a typical burglary. What matters, however, are not the facts of the burglary but the reality that they led to a § 2911.12(A)(4) conviction. In applying the career offender guidelines, we take a categorical approach to the inquiry, focusing on the elements of the statute of conviction, not the underlying facts of the defendant‘s prior case. See ; .

McBee does not dispute that his felonious assault conviction counts as a second felony crime of violence. All told, these two crimes of violence plus the instant controlled-substance offense make him a career offender. See U.S.S.G. § 4B1.1. We thus need not decide whether two additional convictions amounted to crimes of violence. Cf. ; .

McBee separately challenges the substantive reasonableness of his sentence. But we have no authority to address this issue because he waived the right to appeal the reasonableness of a within-guidelines sentence in his plea agreement. See .

For these reasons, we affirm.