U.S. v. Delgado

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Juan DELGADO…

Court: United States Court of Appeals, Fifth Circuit

Date published: Apr 9, 2009

320 F. App'x 286 (5th Cir. 2009)

Opinion

No. 08-40859 Summary Calendar.

April 9, 2009.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for PlaintiffAppellee.

Irma Mendoza Sanjines, Corpus Christi, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, No. 2:08-CR-104-2.

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Juan Delgado appeals his guilty-plea conviction of conspiracy to possess with intent to distribute marihuana, for which he was sentenced as a career offender under U.S.S.G. § 4B1.1. He contends that his previous conviction of escape, which he alleges resulted from his walking away from a halfway house, is not a crime of violence ("COV") for purposes of sentencing him as a career offender.

Delgado moves to supplement the record on appeal with copies of his escape indictment and the presentence report used when sentencing him for escape. The motion is GRANTED.

In United States v. Ruiz, 180 F.3d 675, 676 (5th Cir. 1999), we rejected an argument that a walkaway escape from a community treatment center or correction center does not qualify as a COV. The Supreme Court recently distinguished a state offense of failing to report for periodic imprisonment from the offense of escape, stating that "[t]he behavior that . . . underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody." Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 687, 691, 172 L.Ed.2d 484 (2009). We read Chambers as consistent with Ruiz, and Delgado's escape conviction is a COV.

The government moves to strike its brief and remand for reconsideration in light of Chambers, which the government contends suggests that walkaway escapes are not COV's. Because Chambers is consistent with Ruiz, no remand is necessary, and the motion is DENIED.

AFFIRMED. MOTION TO SUPPLEMENT GRANTED. MOTION TO STRIKE BRIEF AND REMAND DENIED.