United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted October 19, 2006 Decided November 14, 2006
No. 05-3140
UNITED STATES OF AMERICA,
APPELLEE
V.
WALE ADEWANI,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00066-01)
Gregory B. English, appointed by the court, was on the brief
for appellant.
Kenneth L. Wainstein, U.S. Attorney at the time the brief
was filed, and Roy W. McLeese, III, Elizabeth Trosman, and
Patricia A. Heffernan, Assistant U.S. Attorneys, were on the
brief for appellee.
Before: RANDOLPH, GARLAND, and GRIFFITH, Circuit
Judges.
GARLAND, Circuit Judge: Wale Adewani, who was
convicted of unlawful possession of a firearm and ammunition
2
by a convicted felon, raises two issues on appeal. His first and
principal contention is that the district court erred in treating his
prior felony convictions for escape as “crime[s] of violence”
under the United States Sentencing Guidelines. We have
previously held that escape is a crime of violence within the
meaning of the Guidelines, United States v. Thomas, 361 F.3d
653, 660 (D.C. Cir. 2004), vacated on other grounds, 543 U.S.
1111 (2005), and we reaffirm that holding here. Adewani’s
second contention is that there was insufficient evidence to
sustain his conviction. We disagree and therefore affirm the
judgment of the district court.1
I
In United States v. Booker, the Supreme Court held that the
enhancement of a defendant’s sentence pursuant to a set of
mandatory sentencing guidelines, based on facts not submitted
to the jury, violates the Sixth Amendment. 543 U.S. 220, 244
(2005); see United States v. Mejia, 448 F.3d 436, 452 (D.C. Cir.
2006). To remedy this constitutional defect, the Court severed
the provisions of the Sentencing Reform Act that made the U.S.
Sentencing Guidelines mandatory, thereby rendering them
“effectively advisory.” Booker, 543 U.S. at 245. Under the new
sentencing regime, a sentencing court is required “to consider
Guidelines ranges” applicable to the defendant, but is permitted
“to tailor the sentence in light of other statutory concerns as
well.” Id. at 245-46; see United States v. Coumaris, 399 F.3d
343, 351 (D.C. Cir. 2005). Adewani’s sentencing hearing was
conducted post-Booker, and the district court appropriately
employed the Guidelines in an advisory fashion. Adewani’s
only quarrel with his sentence is his contention that the court
1
This case was considered on the record from the United States
District Court for the District of Columbia and on the briefs by the
parties. See FED. R. APP. P. 34(a)(2); D.C. CIR. R. 34(j).
3
incorrectly calculated his base offense level under the
Guidelines.
The relevant guideline for the felon-in-possession statute
that Adewani violated, 18 U.S.C. § 922(g)(1), provides that a
defendant’s base offense level is 24 “if the defendant committed
any part of the instant offense subsequent to sustaining at least
two felony convictions of . . . a crime of violence.” U.S.
SENTENCING GUIDELINES MANUAL § 2K2.1(a)(2) (2002). For
purposes of this guideline, the term “crime of violence” is
defined in Guideline § 4B1.2(a). See id. § 2K2.1 cmt. n.5.2 It is
undisputed that Adewani had two prior felony convictions for
escape from an institution in violation of the District of
Columbia Code.
The district court determined that Adewani’s prior escape
convictions constituted crimes of violence within the meaning
of § 4Bl.2(a)(2), and it therefore concluded that his base offense
level was 24. The guidelines range for a defendant with that
2
Section 4B1.2(a) states:
The term “crime of violence” means any 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.
U.S.S.G. § 4B1.2(a) (emphasis added).
4
offense level and Adewani’s criminal history is 77 to 96 months.
After departing downward from the guidelines range, the district
court sentenced him to 71 months in prison. Contending that his
escape convictions were for walking away from halfway houses,
Adewani disputes their characterization as crimes of violence
and argues that his base offense level and corresponding
sentence should have been substantially lower.
In Thomas, we considered the consolidated appeals of three
defendants, each of whom objected to the enhancement of his
sentence based on the designation of a prior escape offense --
including escape from an institution under the D.C. Code -- as
a “crime of violence” under § 4B1.2(a). We concluded that, “as
a category,” “the offense of escape is a crime of violence within
the meaning of Guideline § 4B1.2(a),” regardless of the facts of
the specific case. Thomas, 361 F.3d at 660. In so holding, we
joined nine other circuits, all of which had reached the same
conclusion. In Adewani’s case, the district court followed
Thomas in determining that Adewani’s prior convictions were
for crimes of violence.
Adewani contends that we are not bound by Thomas in light
of that case’s subsequent history. The three defendants in
Thomas filed a petition for certiorari with the Supreme Court,
objecting to their sentences both on the ground that the crime of
escape does not constitute a crime of violence within the
meaning of the Sentencing Guidelines, and on the same Sixth
Amendment ground advanced by the defendants in Booker,
which had not yet been decided by the Supreme Court. See
Petition for Writ of Certiorari at 9-16, Thomas v. United States,
543 U.S. 1111 (2005) (No. 04-6811). After the Court issued its
opinion in Booker, it granted certiorari in Thomas, vacated the
judgment, and remanded the case to this court “for further
consideration in light of United States v. Booker.” Thomas v.
United States, 543 U.S. 1111 (2005). Adewani contends that, as
5
a consequence, Thomas is “no longer controlling precedent” on
the escape issue in this circuit. Appellant’s Br. 11.
Even if the Supreme Court’s vacatur had marked the end of
the history of the Thomas case, we would still follow Thomas’
holding that escape constitutes a crime of violence. When the
Supreme Court vacates a judgment of this court without
addressing the merits of a particular holding in the panel
opinion, that holding “continue[s] to have precedential weight,
and in the absence of contrary authority, we do not disturb” it.
Action Alliance of Senior Citizens of Greater Philadelphia v.
Sullivan, 930 F.2d 77, 83 (D.C. Cir. 1991); see Edmond v. U.S.
Postal Serv. Gen. Counsel, 949 F.2d 415, 424 n.17 (D.C. Cir.
1991). As the order vacating the judgment in Thomas remanded
the case “for further consideration in light of” Booker, and as
Booker did not address the escape issue, the Supreme Court’s
one-paragraph vacatur gives no cause for questioning our
holding on that issue.
In the period since we released our opinion in Thomas, the
remaining two circuits have weighed in on the escape issue. In
United States v. Winn, 364 F.3d 7 (1st Cir. 2004), the First
Circuit joined us in concluding that escape is a crime of
violence, bringing the total number of circuits so holding to
eleven. In United States v. Piccolo, 441 F.3d 1084 (9th Cir.
2006), the Ninth Circuit took the opposite position, making it the
lone proponent of that view. The decision in Piccolo is not
“contrary authority” within the meaning of Action Alliance, as
Adewani contends. The Ninth Circuit’s decisions do not bind
us, and Piccolo’s principal rationales were previously rejected
in Thomas.
In any event, the vacatur issued by the Supreme Court did
not mark the end of the Thomas case. On remand to this court,
one of the three defendants, Andrew Cook, withdrew his Booker
6
claim. Thereafter, we directed the reinstatement of our 2004
judgment (in the consolidated Thomas case) as to Cook, see
United States v. Thomas, No. 02-3073 (D.C. Cir. May 11, 2005),
and we expressly affirmed the district court’s judgment as to
Cook “in accordance with [our 2004 Thomas] opinion,” United
States v. Cook, 161 F. App’x 7 (D.C. Cir. May 10, 2005).3 We
thus reinstated Thomas’ holding -- that the crime of escape is
categorically a crime of violence within the meaning of the
Sentencing Guidelines -- as the law of the case and of the
circuit.4 We follow that holding here and affirm the sentencing
determination of Adewani’s trial judge.
II
Adewani’s second contention, that there was insufficient
evidence to support his conviction, is also unavailing. The
evidence presented by the government showed, inter alia, the
following: that approaching police officers observed Adewani
3
On the same remand from the Supreme Court, another of the
three defendants, Dale Smith, filed an unopposed motion to remand
the case to the district court for resentencing. In response, we issued
a judgment partially affirming the judgment of the district court, again
“in accordance with the opinion” in Thomas, and remanded the case
for resentencing. United States v. Cook, 161 F. App’x 7 (D.C. Cir.
May 10, 2005). The third defendant, Lawrence Thomas, sought and
was granted a remand of the record to the district court pursuant to our
opinion in United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005).
United States v. Thomas, No. 02-3073 (D.C. Cir. May 11, 2005).
4
After we reinstated our judgment against Cook, he filed a second
petition for certiorari (joined in by defendant Dale Smith, see supra
note 3), which again contested our holding that escape constitutes a
crime of violence. See Petition for Writ of Certiorari, Cook v. United
States, 126 S. Ct. 394 (2005) (No. 05-5677). The Supreme Court
denied the writ. 126 S.Ct. 394 (2005).
7
slouching low in the driver’s seat of a parked car, from which
emanated the strong odor of marijuana; that in response to the
officers’ order to show his hands, Adewani raised his left hand
but refused to raise his right; that after removing Adewani and
two passengers from the car, the police discovered a loaded .38-
caliber revolver protruding from the right side of the driver’s
floor mat, near the place where Adewani’s right hand had been;
and that the car’s glove compartment contained numerous
documents and photographs relating to Adewani. Considering
this record evidence “in the light most favorable to the
government,” we find that a “rational trier of fact could have
found” that Adewani constructively possessed the handgun and
its complement of ammunition. United States v. Alexander, 331
F.3d 116, 127 (D.C. Cir. 2003) (internal quotation marks
omitted); see United States v. Clark, 184 F.3d 858, 863-64 (D.C.
Cir. 1999) (finding sufficient evidence of constructive
possession of a handgun found beneath the rear of the
defendant’s car seat, where the defendant had been seen
“reaching” near that location).
III
For the foregoing reasons, the judgment of the district court
is
Affirmed.