United States v. Delgado

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
April 9, 2009
No. 08-40859
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN DELGADO,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas
No. 2:08-CR-104-2

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*

Juan Delgado appeals his guilty-plea conviction of conspiracy to possess
with intent to distribute marihuana, for which he was sentenced as a career

*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-40859

offender under U.S.S.G. § 4B1.1. He contends that his previous conviction of es-
cape, which he alleges resulted from his walking away from a halfway house, is
not a crime of violence (“COV”) for purposes of sentencing him as a career of-
fender.
Delgado moves to supplement the record on appeal with copies of his es-
cape indictment and the presentence report used when sentencing him for es-
cape. The motion is GRANTED.
In United States v. Ruiz, 180 F.3d 675, 676 (5th Cir. 1999), we rejected an
argument that a walkaway escape from a community treatment center or correc-
tion center does not qualify as a COV. The Supreme Court recently distin-
guished a state offense of failing to report for periodic imprisonment from the
offense of escape, stating that “[t]he behavior that . . . underlies a failure to re-
port would seem less likely to involve a risk of physical harm than the less pas-
sive, more aggressive behavior underlying an escape from custody.” Chambers
v. United States, 129 S. Ct. 687, 687, 691 (2009). We read Chambers as consis-
tent with Ruiz, and Delgado’s escape conviction is a COV.
The government moves to strike its brief and remand for reconsideration
in light of Chambers, which the government contends suggests that walkaway
escapes are not COV’s. Because Chambers is consistent with Ruiz, no remand
is necessary, and the motion is DENIED.
AFFIRMED. MOTION TO SUPPLEMENT GRANTED. MOTION TO
STRIKE BRIEF AND REMAND DENIED.