United States Court of Appeals

                             FOR THE EIGHTH CIRCUIT




                               ________________

                                No. 96-3951WMKC
                               ________________


United States of America,               *
                                        *
            Appellee,                   *
                                        *   On Appeal from the
       v.                               *   United States District Court
                                        *   for the Western District
                                        *   of Missouri.
Glenn G. Reynolds,                      *
                                        *
            Appellant.                  *

                                  ___________

                           Submitted:   June 10, 1997

                                                 Filed:                June 19,
1997
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and
      WOLLMAN, Circuit Judge.
                              ___________

RICHARD S. ARNOLD, Chief Judge.


       In this case we again reaffirm the rule of this Circuit that second-
degree burglary
is a "crime of violence" for sentencing purposes under Section 4B1.2(1)(ii)
of the Sentencing Guidelines.


                                          I.


         Glenn G. Reynolds, a convicted felon, was charged with possession of
several       firearms, in violation of 18 U.S.C. §922(g)(1).     The statutory
maximum sentence is ten years.         18 U.S.C. §924(a)(2).   Reynolds pleaded
guilty.        As originally computed in the presentence report, his adjusted
offense level was 19.       With a Criminal History Category of VI, this offense
level produces a guideline range of five years and three months to 6 ½
years.        The District Court1   determined, however, that one of Reynolds's
many previous convictions, a 1986 second-degree burglary, should be treated
as   a   "crime of violence."         Reynolds concededly had one other such
conviction, so this decision meant that he would be classified as a "career
offender" under U.S.S.G. §4B1.1.       This classification produced a sentencing
range of seven years and eight months to nine years and seven months.       The
Criminal History Category was unchanged.


         The District Court imposed a sentence of eight years and four months
(100 months), followed by three years' supervised release, a fine of
$3,000, to be paid in installments, and the mandatory special assessment
of $50.




          The Hon. Howard F. Sachs, United States District Judge for the Western
          1

District of Missouri.
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                                           II.

     The question presented is how to classify Reynolds's second-degree
burglary conviction.      Because this issue has been thoroughly ventilated in
previous opinions of this Court, we shall keep our discussion brief.


     United States v. Nimrod, 

, 1188 (8th Cir. 1991), holds
that second-degree burglary in violation of Missouri law qualifies a
defendant as a career offender under §4B1.1.            The holding was not limited
to "a special subclass of burglaries that involve especially dangerous
conduct."    

      United States v. Hascall,       

(8th
Cir. 1996), makes it clear that this holding applies to burglaries of
commercial buildings (as is the case here).             The convictions at issue in
Hascall were under Iowa law, but that difference doesn't matter, because
one of the bases of Hascall       is Taylor v. United States, 

, 598
(1990), adopting, for related purposes, a "generic definition [one might
almost say a per se definition] of 

.   It is the
generic elements of burglary that matter - unlawful entry into a building
to commit a crime - not the details of particular state statutes or the
special circumstances of individual cases.


     We     are   bound   by   Nimrod    and Hascall.     The   latter   opinion,   in
particular, discusses and rejects, at some length, most of the arguments
made by Reynolds in this case.          Appellant argues that Hascall is wrong, but
we are not at liberty to consider that              argument.    One panel may not
overrule another.


     Appellant also cites United States v. Fountain, 

, 950 (8th
Cir. 1996), as authorizing a different approach.             In Fountain, he says,
this Court examined the




                                           -3-
particulars of the conduct underlying the burglary conviction before
deciding that it amounted to a "crime of violence."      The point is not
insubstantial, but it is ultimately unavailing.   The text of the relevant
part of Fountain reads as follows:


                 As indicated, Fountain was convicted of
           burglarizing a garage. The burglary in question
           was in progress when interrupted by the
           homeowner, an off-duty police officer. Fountain
           and his accomplice were armed with a loaded
           revolver, which was pointed at the
           officer/homeowner. The officer/homeowner then
           fired his weapon at the burglars and they fled.
           Under the circumstances, we have no difficulty
           finding that the incident "otherwise involves
           conduct that presents a serious potential risk of
           physical injury to another." See United States v.
           Hascall, 

, 904 (8th Cir. 1996) (second-
           degree burglary of a commercial building qualifies
           as a crime of violence under section 4B1.2); see
           also United States v. Cornelius, 

, 493
           (8th Cir. 1991) (use of weapon signifies a crime
           of 

.


     We think this passage is best understood as an alternative
holding, something like this:   "The generic theory of Hascall controls,
but even if it didn't, this was still a 'crime of violence' because of
what happened during this particular burglary."   To read this passage as
disavowing the generic or per se approach of Hascall would be to
attribute to the Fountain Court a sub silentio overruling of Hascall in
a paragraph that itself cites Hascall with approval.   As we have said
many times, most recently in this very opinion, one panel may not
overrule another, and we believe the Fountain panel was as well aware of
that rule as we are.




                                     -4-
     We add, though it is not necessary, that this result makes sense
even if we were to consider the particulars of Reynold's underlying
conduct in the present case.    The building he burglarized was a
commercial structure, not a dwelling, and no one was there at the time.
The building belonged to his employer.    It was Reynolds's place of work.
We accept his statement that he did not intend to harm anyone, and that
he would not have broken into the building if he had thought that
someone was inside.   This is all beside the point.   The relevant portion
of U.S.S.G. §4B1.2(1)(ii) defines "crime of violence" to include
"conduct that presents a serious potential risk of physical injury to
another."   (Emphasis ours).   That no one was injured in fact is not
dispositive.   Breaking into a building by its very nature involves a
"serious potential risk of physical injury," either to someone who
happens to be in the building, or to someone, for example a police
officer, who happens to pass by while the crime is being committed.
Reynolds did not and could not know, ex ante, that no one was in the
building, or that no one would happen upon him.


     Affirmed.


     A true copy.


            Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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