F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 26 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 03-3177
v. District of Kansas
MICHAEL WAYNE WRIGHT, (D.C. No. 02-CR-40146–001-JAR)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL , MURPHY , and McCONNELL , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument.
Defendant-Appellant Michael Wayne Wright challenges application of the
career offender provisions of U.S.S.G. § 4B1.1 to his case. Mr. Wright pleaded
guilty to distribution of approximately 113.4 grams of a mixture containing
This order and judgment is not binding precedent, except under the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.
methamphetamine. At sentencing, over Defendant’s objection, the district court
found that as a result of prior convictions for aggravated escape and aggravated
assault, Defendant qualified for career offender status under the Sentencing
Guidelines. The court sentenced Mr. Wright to 188 months imprisonment.
Judgment was entered on June 23, 2003, and Defendant appeals.
To determine whether Defendant qualified as a “career offender,” the
district court properly considered the requirements of U.S.S.G. § 4B1.1. Under
that section, Mr. Wright
is a career offender if (1) he was at least eighteen years old at the
time he committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of violence or
a controlled substance; and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a controlled
substance.
U.S.S.G. § 4B1.1(a). At issue here is whether Mr. Wright’s prior felony
conviction for aggravated escape was a “crime of violence.”
The term “crime of violence” is defined in U.S.S.G. § 4B1.2(a) as:
[A]ny offense under federal or state law, punishable by imprisonment
for a term exceeding one year that --
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another or,
(2) 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.
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Id. (emphasis added). U.S.S.G. § 4B1.2, comment. n.1, lists ten offenses which
are each, by definition, a “crime of violence.” “Escape” is not included in that
listing. However, the guidelines provide that other non-listed offenses constitute
crimes of violence where “the conduct set forth ( i.e. , expressly charged) in the
count of which the defendant was convicted . . . by its nature, presented a serious
potential risk of physical injury to another.” U.S.S.G. § 4B1.2, comment. n.1.
This Court has repeatedly held that prison escape constitutes a “crime of
violence” because it “involves conduct that presents a serious potential risk of
physical injury to another.” United States v. Gosling , 39 F.3d 1140, 1142-43
(10th Cir. 1994); a ccord United States v. Springfield , 196 F.3d 1180, 1185 (10th
Cir. 1999) ; United States v. Moudy , 132 F.3d 618, 620 (10th Cir. 1998); United
States v. Mitchell , 113 F.3d 1528, 1533 (10th Cir. 1997).
Defendant acknowledges the force of these precedents, but submits that
“the rule of the cases is contrary to the wording and intent of the career offender
guideline.” Appellant’s Br. 8. We are not persuaded, but even if we were, we
would be bound by the earlier decisions of this Court. United States v.
Ensminger , 174 F.3d 1143, 1146-47 (10th Cir. 1999). Defendant offers no basis
for distinguishing these precedents, and we perceive none.
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The judgment of the United States District Court for the District of Kansas,
is therefore, AFFIRMED .
Entered for the Court,
Michael W. McConnell
Circuit Judge
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