F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 8, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 05-5068
v. (N.D. of Okla.)
DONALD LEE WARREN, (D.C. No. CR-04-166-TCK)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **
Defendant-Appellant Donald Lee Warren pled guilty in the Northern
District of Oklahoma to one count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Finding that Warren’s prior convictions
placed him under the applicable provision of the Armed Career Criminal Act
(ACCA), the district court sentenced Warren to a term of imprisonment of 188
*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
months. On appeal, Warren argues that the district court erred in applying the
ACCA.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742, we affirm.
I. Background
Warren pled guilty to one count of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). 1
At sentencing, the district court found that
Warren had been previously convicted of three violent felonies and therefore
qualified as an armed career criminal under the ACCA, 18 U.S.C. § 924(e). In
particular, the court stated that Warren’s prior convictions for one count of
second degree burglary and two counts of escape served as predicate offenses
under the ACCA. 2
Warren objected at sentencing to the classification of his prior burglary
conviction as a predicate offense, arguing that the government had not produced
Because Warren does not dispute the facts underlying this conviction, we
1
need not discuss them here.
2
The district court noted that Warren had a prior conviction as a juvenile
for arson and expressed some doubt as to whether the particular facts of that
conviction would qualify it as a predicate offense under the ACCA. The court
nonetheless used the arson conviction as a predicate crime, reasoning that
Warren’s two convictions for escape and one conviction for second-degree
burglary were sufficient by themselves to satisfy 18 U.S.C. § 924(e) . Because we
find that the district court did not err in classifying Warren’s three convictions for
burglary and escape as violent felonies, we need not address whether the district
court was correct with regard to the arson conviction.
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evidence of a “generic” burglary, i.e. “an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to commit a crime.”
Taylor v. United States , 495 U.S. 575, 598 (1990). He further objected at
sentencing to his two prior escape convictions. Again, he argues the government
had not produced evidence that either escape was a crime of violence which can
serve as a predicate offense under the ACCA. He raises both arguments here.
II. Analysis
We review de novo a district court’s decision to impose a sentence
enhancement under the ACCA. United States v. Moudy , 132 F.3d 618, 619 (10th
Cir. 1998).
A. Burglary Conviction
Warren first argues the district court erred in classifying his burglary
conviction under the ACCA as a predicate offense since the government failed to
establish on the record that the burglary in question involved all elements of the
“generic” offense. He suggests the charging document detailing the burglary was
never presented to the district court.
The Supreme Court recently reiterated that a district court, when making an
inquiry under the ACCA, may refer “to the terms of the charging document, the
terms of a plea agreement or transcript of colloquy between judge and defendant
in which the factual basis for the plea was confirmed by the defendant, or to some
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comparable judicial record of this information” to determine whether a defendant
who pled “guilty to burglary defined by a nongeneric statute necessarily admitted
elements of the generic offense.” Shepard v. United States , 125 S. Ct. 1254, 1263
(2005).
Here, both parties concede that Oklahoma’s burglary statute is
“nongeneric,” meaning that the facts of the underlying offense must be reviewed
to determine whether it constitutes a crime of violence. Therefore, the district
court necessarily had to refer to one of the required judicial documents to
conclude whether Warren’s plea admitted elements of generic burglary. Although
Warren contends that the district court did not consider any such documents, the
record is to the contrary. The district court stated, “There is a second degree
burglary in Wagoner County, CFR-88-65, and as the government has indicated,
there is information from the charging document that it was a grocery store, a
Safeway store entered with intent to commit a felony, specifically, apparently a
shopping cart full of cigarettes and beer. That’s . . . a crime of violence.” Tr. of
Sentencing 9–10.
Thus, because the district court reviewed the applicable charging document
and found that Warren’s burglary conviction involved all elements of the
“generic” offense, the court did not err in concluding that such conviction could
serve as a predicate crime under the ACCA.
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B. Escape Convictions
Warren next argues that although this circuit has repeatedly held that
escape convictions are properly classified as violent felonies, sentencing courts
should nonetheless be required to cross a minimal evidentiary threshold before
using such convictions to enhance a sentence under the ACCA. He suggests that
the reasoning of the Supreme Court’s recent opinion in Shepard , 125 S. Ct. at
1257–58, acknowledging the distinction between “generic” and “nongeneric”
burglary statutes, should be extended to the escape statute at issue here. Since the
Oklahoma statute defines “escape” broadly to include both escape from jail as
well as mere failure to timely return to an institution following a work detail, he
contends the government should be required to prove the latter form of escape is a
violent felony. 3
We disagree with this reading of Shepard .
3
The Oklahoma escape statute states in pertinent part:
B. Any person who is an inmate in the custody of the Department of Corrections
who escapes from said custody, either while actually confined in a correctional
facility, while assigned to an alternative to incarceration authorized by law, while
assigned to the Preparole Conditional Supervision Program . . . or while permitted
to be at large as a trusty, shall be guilty of a felony punishable by imprisonment
of not less than two (2) years nor more than seven (7) years.
C. For the purposes of this section, an inmate assigned to an alternative to
incarceration authorized by law or to the Preparole Conditional Supervision
Program shall be considered to have escaped if the inmate cannot be located
within a twenty-four hour period or if he or she fails to report to a correctional
facility or institution, as directed. This includes any person escaping by
(continued...)
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The holding in Shepard relies on the Supreme Court’s earlier opinion in
Taylor v. United States , 495 U.S. 575 (1990), where the Court originally
described this distinction with respect to burglary statutes. In Taylor , the
Supreme Court held
[A]n offense constitutes “burglary” for purposes of a § 924(e) sentence
enhancement if either its statutory definition substantially corresponds
to “generic” burglary, or [in the case of a “nongeneric” burglary statute]
the charging paper and jury instructions actually required the jury to
find all the elements of generic burglary in order to convict the
defendant.
495 U.S. at 602.
Shepard , which reinforced the Court’s earlier holding in Taylor , does not
call into doubt any of our jurisprudence classifying all escapes as violent felonies
for purposes of the ACCA. 4
We have repeatedly held, post- Taylor , that every
escape scenario is a violent felony, regardless of whether violence is actually
involved. United States v. Moore , 401 F.3d 1220, 1226 (10th Cir. 2005); Moudy ,
(...continued)
3
absconding from an electronic monitoring device or absconding after removing an
electronic monitoring device from their body.
Okla. Stat. tit. 21, § 443(B), (C) (2005).
4
The question in Shepard was not whether the Supreme Court’s distinction
between “generic” and “nongeneric” burglary statutes for purposes of the ACCA
was still applicable; the question before the Court was “whether a sentencing
court can look to police reports or complaint applications to determine whether an
earlier guilty plea necessarily admitted, and supported a conviction for, generic
burglary.” Shepard, 125 S. Ct. at 1257.
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132 F.3d at 620; United States v. Gosling , 39 F.3d 1140, 1141–43 (10th Cir.
1994). In short, “[u]nder § 924(e)(2)(B)(ii), an escape always constitutes conduct
that presents a serious potential risk of physical injury to another.” Moore , 401
F.3d at 1226 (emphasis added) (citation and quotation marks omitted).
Therefore, the district court did not err in finding that Warren’s two prior
convictions for escape served as predicate offenses under the ACCA.
III. Conclusion
Accordingly, for the reasons stated above, we AFFIRM.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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