United States v. Linder , 100 F. App'x 164 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4065
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN MAURICE LINDER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-03-41)
Submitted: May 21, 2004 Decided: June 8, 2004
Before WIDENER and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Robert J. Conrad, Jr., United States Attorney, Gretchen C. F.
Shappert, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kevin Maurice Linder pled guilty to escape, 18 U.S.C.
§ 751 (2000), and was sentenced as a career offender to forty
months imprisonment. U.S. Sentencing Guidelines Manual § 4B1.1
(2003). Linder challenges the district court’s determination that
escape is a crime of violence as defined in § 4B1.2(a)(2) &
comment. (n.1). We affirm.
Linder argues on appeal that this court should reconsider
a number of its prior decisions. Linder first takes issue with
this Court’s decision in United States v. Dickerson, 77 F.3d 774,
776 (4th Cir. 1996) (holding that felony attempted escape is a
crime of violence under § 4B1.1), and challenges the categorical
approach we have adopted for determining whether an offense is a
crime of violence under the “otherwise” clause of § 4B1.2(a)(2).
Id. (quoting United States v. Johnson, 953 F.2d 110, 114-15 (4th
Cir. 1991)). Linder also contends that this court erred in
deciding United States v. Kinter, 235 F.3d 192, 195 (4th Cir. 2000)
(holding that Apprendi v. New Jersey, 530 U.S. 466 (2000), does not
apply to the sentencing guidelines). He argues that due process
requires that any fact resulting in a sentence enhancement be
proved beyond a reasonable doubt and by evidence admissible at
trial. Because a panel of this court may not overrule the decision
of a prior panel, Brubaker v. City of Richmond, 943 F.2d 1363,
1381-82 (4th Cir. 1991), his argument fails in each instance.
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Linder further maintains that the Sentencing Commission
violated the Due Process Clause by defining a crime of violence in
terms different from those used in 18 U.S.C. § 16(b) (2000).
Section 16(b) differs from § 4B1.2(a)(2) in that § 16(b) states
that a crime of violence may be “any other offense that is a felony
and that, by its nature, involves a substantial risk that physical
force against the person or property of another may be used in the
course of committing the offense,” while § 4B1.2(a)(2) provides
that a crime of violence may be an offense that “otherwise involves
conduct that presents a serious potential risk of physical injury
to another.” The commentary to § 4B1.2 clarifies the guideline by
stating that the offense may be one that, “by its nature, presented
a serious potential risk of physical injury to another.” Our prior
decisions hold that the discrepancy between § 16 and § 4B1.1 is not
significant. See United States v. Martin, 215 F.3d 470, 474 n.4
(4th Cir. 2000) (noting that, “the definition in 18 U.S.C. § 16uses operative language that is similar to that used in U.S.S.G.
§ 4B1.2(a). Thus, our determinations regarding what constitutes a
crime of violence for purposes of 18 U.S.C.A. § 16 are also
relevant [for career offender determination]”); United States v.
Wilson, 951 F.2d 586, 588 (4th Cir. 1991) (modification of
guideline language that deviated from § 16 definition of crime of
violence did not alter scope of court’s inquiry into nature of
offense).
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We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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