United States v. Stine

122 F. App'x 103

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 12, 2005
• Docket: Nos. 04-40561, 04-40582
• Status: Published

Opinion

PER CURIAM:

*

Mikeal Glen Stine appeals the sentence imposed after a jury convicted him of aiding and abetting bank robbery and conspiracy to commit bank robbery. Stine was sentenced as a career offender under U.S.S.G. §§ 4B1.1 and 4B1.2 based on Stine’s prior federal convictions for escape. Stine argues that the escape convictions were not “crimes of violence” for purposes of establishing career-offender status.

The district court also revoked Stine’s supervised release, and the appeal of the revocation was consolidated with the appeal of the bank-robbery sentence. However, Stine waived the revocation issue by expressly declining to brief it. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993) (issues not briefed are abandoned).

Stine concedes that in United States v. Ruiz, 180 F.3d 675, 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 this court implicitly overruled Ruiz in United States v. Charles, 301 F.3d 309, 313-14 (5th Cir.2002). Charles held that theft of a motor vehicle was not, by its nature, a crime of violence, but this court has not held that escape is not, by its nature, a crime of violence. Consistent with Ruiz, all other circuits that have addressed the issue agree that escape is a crime of violence. We decline to hold that Ruiz has been implicitly overruled.

Stine contends that his 1982 Arizona conviction for conspiracy to commit sexual assault was not a crime of violence. However, he waives that issue by failing to brief it. See United States v. Reyes, 300 F.3d 555, 558 n. 2 (5th Cir.2002) (failure to provide legal or factual analysis of issue results in waiver); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987) (general arguments insufficient to preserve issues for appeal).

Stine also contends his prior convictions could not be used to increase his sentence unless they were alleged in the indictment as proved to the jury beyond a reasonable doubt. This contention is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but Stine wishes to preserve the issue for Supreme Court review in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi did not overrule Almendarez-Torres and expressly limited its holding to facts “[ojther than the fact of a prior conviction”. See Apprendi, 530 U.S. at 489-90. This court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it”. United States v. Dabeit, 231 F.3d 979, 984 (internal quotation marks and citation omitted).

The judgment of the district court is 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.