United States v. Shelby ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 30, 2006
Charles R. Fulbruge III
Clerk
No. 05-40432
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALAN LAWRENCE SHELBY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:04-CR-138-ALL
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Alan Lawrence Shelby pleaded guilty to escape from federal
custody and was sentenced to 40 months of imprisonment, three
years of supervised release, $2,692.60 in restitution, and a $100
special assessment.
Shelby argues on appeal that the district court erred in
determining that the instant offense of escape was a crime of
violence qualifying him as a career offender under U.S.S.G.
*
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this opinion should not be published and is not precedent except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. 05-40432
-2-
§ 4B1.1. He concedes that this court held in United States v.
Ruiz, 180 F.3d 675, 677 (5th Cir. 1999), that escape constitutes
a crime of violence under U.S.S.G. § 4B1.2. He argues, however,
that Ruiz was effectively overruled by this court’s subsequent
decision in United States v. Charles, 301 F.3d 309 (5th Cir.
2002) (en banc), because Charles overruled any prior cases
conflating the guidelines “crime of violence” definition found in
§ 4B1.2 and the differing statutory “crime of violence”
definition found in 18 U.S.C. § 16. Ruiz did not conflate the
definitions of § 16 and § 4B1.2(a). Therefore, Charles did not
effectively overrule Ruiz on this basis.
AFFIRMED.