F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 3 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 03-2032
v. (D.C. No. CR-01-1714)
RUBEN GARCIA HERNANDEZ, (D. New Mexico)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and HARTZ , Circuit Judges.
Defendant Ruben Garcia Hernandez pleaded guilty to an indictment
charging him with being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). The district court sentenced
Defendant to 180 months’ imprisonment and five years’ supervised release under
18 U.S.C. § 924(e)(1), which subjects a person “who violates section 922(g) . . .
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
and has three previous convictions . . . for a violent felony” to a minimum of
fifteen years’ imprisonment. He now appeals his sentence. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
Defendant’s indictment and presentence report listed the following
convictions for violent felonies: burglary, on February 2, 1968; sexual
penetration and false imprisonment, on September 30, 1977; aggravated assault,
on September 28, 1985; and escape from jail, on December 15, 1985. See 18
U.S.C. § 924(e)(2)(B) (defining “violent felony” as “any crime 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 or . . . otherwise involves conduct that presents a
serious potential risk of physical injury to another”); United States v. Moudy, 132
F.3d 618, 620 (10th Cir. 1998) (holding that a felony escape, violent or not, is
necessarily a “violent felony” for the purposes of § 924(e), given the threat of
injury it poses to others). Besides finding that § 924(e) applied, the district court
also determined that Defendant was an armed career criminal under § 4B1.4 of
the United States Sentencing Guidelines, which designates a person subject to an
enhanced sentence under § 924(e) as an “armed career criminal.”
Defendant directed defense counsel to file a notice of appeal on his behalf,
on the ground that the district court incorrectly determined that he was a career
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criminal under U.S.S.G. § 4B1.1. Specifically, Defendant contends that the
district court should not have counted his prior convictions for (i) criminal sexual
penetration, because he had served his time for that conviction and completed a
post-incarceration probation; and (ii) escaping from jail, because that should not
count as a violent felony.
Defense counsel has filed an Anders brief indicating his belief that the case
affords no non-frivolous issues for appeal. See Anders v. California, 386 U.S.
738, 744 (1967). Although Anders entitles the defendant to raise additional
points in response to counsel’s Anders brief, Defendant has made no such filing.
Agreeing with counsel that Defendant’s claims are frivolous, we GRANT
counsel’s request to withdraw and DISMISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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