USA vs. Pettigrew, (5th Cir. 2005)

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United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

May 23, 2005

FOR THE FIFTH CIRCUIT

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 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 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 constituted error.2 The judgment of the district court is thus AFFIRMED.

*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.

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).

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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