United States v. Pettigrew

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 23, 2005
Charles R. Fulbruge III
Clerk
No. 04-10976
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY BRUCE PETTIGREW,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-19-ALL-L
Before GARWOOD, JOLLY, and CLEMENT, Circuit Judges.
PER CURIAM:*
Anthony Bruce Pettigrew appeals the sentence imposed after his
guilty-plea conviction for escape. Pettigrew was sentenced as a
career offender under U.S.S.G. §§ 4B1.1 and 4B1.2 based on his
instant escape conviction and his two prior convictions for bank
robbery. Based on his career offender status the applicable
guideline range was 37 to 46 months. He was sentenced to 42
*
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opinion should not be published and is not precedent except under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.
months.
Pettigrew argues in his first point that the instant escape
conviction was not a “crime of violence” for purposes of
establishing career-offender status because it merely involved
failure to report to a Bureau of Prison facility (a half way house)
to which, as a part of his sentence, he was to report (following
his incarceration at FCI Three Rivers), and remain confined, as a
part of his federal sentence. Pettigrew concedes that in United
States v. Ruiz, 180 F.3d 657, 676-77 (5th Cir. 1999), this court
held that every escape is “by its nature” a crime of violence
because of the inherent risk that a person could be injured during
the escape or the recapture of the escapee. However, he contends
that Ruiz is factually distinguishable from his case and that the
reasoning of Ruiz was rejected in United States v. Charles, 301
F.3d 309, 313-14 (5th cir. 2002) (en banc). One panel of this
court may not overrule another. Unless Ruiz has been overruled by
the en banc opinion in Charles, we are bound by Ruiz’s holding that
escape is categorically a crime of violence under guidelines
section 4B1.2 – that “every” escape is such an offense. Ruiz at
677. While there is arguably some tension between portions of the
opinions in Charles and Ruiz, Charles, which dealt with motor
vehicle theft, does not cite or purport to overrule Ruiz and does
not even mention the offense of escape. Moreover, Charles states
that the “by its nature, presented a serious potential risk of
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physical injury to another” clause of Application Note 1 to section
4B1.2(a)(2) “calls for a categorical inclusion or exclusion of
crimes.” Charles at 314. Ruiz is best read as holding that the
crime of escape is categorically included. There is not a
sufficiently clear conflict between Charles and Ruiz to justify
this panel in departing from Ruiz on the basis that it has been
effectively overruled by Charles.1
Pettigrew has not established that the district court erred in
finding that he was a career offender.
Pettigrew, in his second and final point of error, also argues
that the district court improperly enhanced his sentence under
U.S.S.G. § 4B1.2 because he did not admit to the facts resulting in
the career offender enhancement. In United States v. Booker, 125
S.Ct. 738, 749-50 (2005), the Supreme Court held that any fact
other than a prior conviction used to enhance a sentence must be
admitted by the defendant or found by a jury. Because Pettigrew
pleaded guilty to escape, which is categorically a crime of
violence, he cannot show that the enhancement of his sentence
1
We observe in passing that most of the other circuits
(perhaps all that have spoken to it) appear to have followed Ruiz
in holding escape is categorically a crime of violence. See, e.g.,
United States v. Winn, 364 F.3d 7, 10-11 (1st Cir. 2004) (citing
cases); United States v. Thomas, 361 F.3d 653, 657-60 (D.C. Cir.
2004); United States v. Bryant, 310 F.3d 550, 554 (7th Cir. 2002).
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constituted error.2
The judgment of the district court is thus
AFFIRMED.
2
The two prior bank robbery convictions were likewise
categorically crimes of violence, as “robbery” is a specifically
named offense in Application Note 1 to § 4B1.2. As such, these
prior convictions are within the prior conviction exception to
Booker’s Sixth Amendment holding.
Pettigrew does not argue that he is entitled to resentencing
because the district court applied the guidelines on a mandatory,
rather than advisory, basis (nor did he make any such contention
below). We therefore need not address that. In any event,
reversal on the basis of such a contention would, at a minimum,
have to meet the prejudice prong of plain error review under FED.
R. CRIM. P. 52(b). The sentence here was in the upper half of the
guideline range, and there is nothing in the record to suggest that
the district court would have imposed a lesser sentence had it
treated the guidelines as merely advisory, so this standard is not
met.
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