02-1301 U.S. v. Cole

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“As the district court concluded here, discharging a firearm is an inherently risky act. Even though shots were not aimed at a particular person, the actions of the mob could easily have caused an injury; the case law is replete with examples of bystanders being hurt by ricocheting bullets.”

“Because of the inherent risks associated with firearms, courts have concluded that firing-or in some cases even pointing-a firearm constitutes a crime of violence. See United States v. Chapple, 942 F.2d 439, 441 (7th Cir. 1991); United States v. McNeal, 900 F.2d 119, 121 (7th Cir. 1990); see also United States v. Rutledge, 33 F.3d 671, 674 (6th Cir. 1994) (firing gun in direction of coworker, even though in jest, constituted crime of violence because it placed coworker in imminent danger of serious injury); United States v. Thompson, 891 F.2d 507, 510 (4th Cir. 1989) (pointing firearm at another person constituted crime of violence because risk of physical force was ‘invariably present’). The state charging document here alleges that Mr. Cole, along with others, used ‘force and violence’ to shoot out the car windows. The mere act of firing at a vehicle poses some inherent risk to others, for how could the shooter be sure that the vehicle is unoccupied?

“The state transcript shows that other people were present in the area at the time of the shooting; the incident occurred after a fight, and there were other people near enough to identify Mr. Cole as the shooter. Accordingly, Mr. Cole’s mob action offense posed a ‘serious potential risk of physical injury to another’ and therefore constitutes a crime of violence. See U.S.S.G. sec. 4B1.2(a).”

Affirmed.

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Ripple, J.