United States v. Mason

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 7 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-3352 (D.C. No. 95-CR-10085-ALL) MICHAEL A. MASON, (D. Kan.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY, LOGAN, and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Defendant pleaded guilty to a single charge of escape from federal custody

and was sentenced to forty months’ confinement, based on the district court’s

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. classification of defendant as a career offender under section 4B1.1 of the United

States Sentencing Guidelines (U.S.S.G.). Defendant’s sole challenge on appeal is

to the enhancement of his sentence. He contends that his offense, which was

walking away from an unsecured halfway house, does not constitute a “crime of

violence” for purposes of U.S.S.G. § 4B1.1 and, therefore, that he should not be

classified as a career offender.

“Whether a defendant was erroneously classified as a career offender is a

question of law subject to de novo review.” United States v. Mitchell, 113 F.3d

1528, 1532 (10th Cir. 1997). Our disposition of this case is governed by our

recent opinion in Mitchell, 113 F.3d at 1533, in which we held that escape, by its

very nature, is a crime of violence, even if it involves only walking away from an

unsecured correctional facility. See also United States v. Gosling, 39 F.3d 1140,

1142 (10th Cir. 1994). We, therefore, conclude that the district court did not err

in using defendant’s present escape conviction to classify him as a career

offender.

The judgment of the United States District Court for the District of Kansas

is AFFIRMED.

Entered for the Court

Wade Brorby Circuit Judge

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