United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted October 19, 2006 Decided November 14, 2006

No. 05-3140

UNITED STATES OF AMERICA,

APPELLEE

V.

WALE ADEWANI,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00066-01)

Gregory B. English, appointed by the court, was on the brief

for appellant.

Kenneth L. Wainstein, U.S. Attorney at the time the brief

was filed, and Roy W. McLeese, III, Elizabeth Trosman, and

Patricia A. Heffernan, Assistant U.S. Attorneys, were on the

brief for appellee.

Before: RANDOLPH, GARLAND, and GRIFFITH, Circuit

Judges.

GARLAND, Circuit Judge: Wale Adewani, who was

convicted of unlawful possession of a firearm and ammunition
2

1

This case was considered on the record from the United States

District Court for the District of Columbia and on the briefs by the

parties. See FED. R. APP. P. 34(a)(2); D.C. CIR. R. 34(j). 

by a convicted felon, raises two issues on appeal. His first and

principal contention is that the district court erred in treating his

prior felony convictions for escape as “crime[s] of violence”

under the United States Sentencing Guidelines. We have

previously held that escape is a crime of violence within the

meaning of the Guidelines, United States v. Thomas, 361 F.3d

653, 660 (D.C. Cir. 2004), vacated on other grounds, 543 U.S.

1111 (2005), and we reaffirm that holding here. Adewani’s

second contention is that there was insufficient evidence to

sustain his conviction. We disagree and therefore affirm the

judgment of the district court.1

I

In United States v. Booker, the Supreme Court held that the

enhancement of a defendant’s sentence pursuant to a set of

mandatory sentencing guidelines, based on facts not submitted

to the jury, violates the Sixth Amendment. 543 U.S. 220, 244

(2005); see United States v. Mejia, 448 F.3d 436, 452 (D.C. Cir.

2006). To remedy this constitutional defect, the Court severed

the provisions of the Sentencing Reform Act that made the U.S.

Sentencing Guidelines mandatory, thereby rendering them

“effectively advisory.” Booker, 543 U.S. at 245. Under the new

sentencing regime, a sentencing court is required “to consider

Guidelines ranges” applicable to the defendant, but is permitted

“to tailor the sentence in light of other statutory concerns as

well.” Id. at 245-46; see United States v. Coumaris, 399 F.3d

343, 351 (D.C. Cir. 2005). Adewani’s sentencing hearing was

conducted post-Booker, and the district court appropriately

employed the Guidelines in an advisory fashion. Adewani’s

only quarrel with his sentence is his contention that the court
3

2

Section 4B1.2(a) states:

The term “crime of violence” means any offense under

federal or state law, punishable by imprisonment for a term

exceeding one year, that --

(1) has as an element the use, attempted use, or

threatened use of physical force against the person of

another, or

(2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of

physical injury to another.

U.S.S.G. § 4B1.2(a) (emphasis added).

incorrectly calculated his base offense level under the

Guidelines. 

The relevant guideline for the felon-in-possession statute

that Adewani violated, 18 U.S.C. § 922(g)(1), provides that a

defendant’s base offense level is 24 “if the defendant committed

any part of the instant offense subsequent to sustaining at least

two felony convictions of . . . a crime of violence.” U.S.

SENTENCING GUIDELINES MANUAL § 2K2.1(a)(2) (2002). For

purposes of this guideline, the term “crime of violence” is

defined in Guideline § 4B1.2(a). See id. § 2K2.1 cmt. n.5.2 It is

undisputed that Adewani had two prior felony convictions for

escape from an institution in violation of the District of

Columbia Code. 

The district court determined that Adewani’s prior escape

convictions constituted crimes of violence within the meaning

of § 4Bl.2(a)(2), and it therefore concluded that his base offense

level was 24. The guidelines range for a defendant with that
4

offense level and Adewani’s criminal history is 77 to 96 months.

After departing downward from the guidelines range, the district

court sentenced him to 71 months in prison. Contending that his

escape convictions were for walking away from halfway houses,

Adewani disputes their characterization as crimes of violence

and argues that his base offense level and corresponding

sentence should have been substantially lower.

In Thomas, we considered the consolidated appeals of three

defendants, each of whom objected to the enhancement of his

sentence based on the designation of a prior escape offense --

including escape from an institution under the D.C. Code -- as

a “crime of violence” under § 4B1.2(a). We concluded that, “as

a category,” “the offense of escape is a crime of violence within

the meaning of Guideline § 4B1.2(a),” regardless of the facts of

the specific case. Thomas, 361 F.3d at 660. In so holding, we

joined nine other circuits, all of which had reached the same

conclusion. In Adewani’s case, the district court followed

Thomas in determining that Adewani’s prior convictions were

for crimes of violence.

Adewani contends that we are not bound by Thomas in light

of that case’s subsequent history. The three defendants in

Thomas filed a petition for certiorari with the Supreme Court,

objecting to their sentences both on the ground that the crime of

escape does not constitute a crime of violence within the

meaning of the Sentencing Guidelines, and on the same Sixth

Amendment ground advanced by the defendants in Booker,

which had not yet been decided by the Supreme Court. See

Petition for Writ of Certiorari at 9-16, Thomas v. United States,

543 U.S. 1111 (2005) (No. 04-6811). After the Court issued its

opinion in Booker, it granted certiorari in Thomas, vacated the

judgment, and remanded the case to this court “for further

consideration in light of United States v. Booker.” Thomas v.

United States, 543 U.S. 1111 (2005). Adewani contends that, as
5

a consequence, Thomas is “no longer controlling precedent” on

the escape issue in this circuit. Appellant’s Br. 11.

Even if the Supreme Court’s vacatur had marked the end of

the history of the Thomas case, we would still follow Thomas’

holding that escape constitutes a crime of violence. When the

Supreme Court vacates a judgment of this court without

addressing the merits of a particular holding in the panel

opinion, that holding “continue[s] to have precedential weight,

and in the absence of contrary authority, we do not disturb” it.

Action Alliance of Senior Citizens of Greater Philadelphia v.

Sullivan, 930 F.2d 77, 83 (D.C. Cir. 1991); see Edmond v. U.S.

Postal Serv. Gen. Counsel, 949 F.2d 415, 424 n.17 (D.C. Cir.

1991). As the order vacating the judgment in Thomas remanded

the case “for further consideration in light of” Booker, and as

Booker did not address the escape issue, the Supreme Court’s

one-paragraph vacatur gives no cause for questioning our

holding on that issue.

In the period since we released our opinion in Thomas, the

remaining two circuits have weighed in on the escape issue. In

United States v. Winn, 364 F.3d 7 (1st Cir. 2004), the First

Circuit joined us in concluding that escape is a crime of

violence, bringing the total number of circuits so holding to

eleven. In United States v. Piccolo, 441 F.3d 1084 (9th Cir.

2006), the Ninth Circuit took the opposite position, making it the

lone proponent of that view. The decision in Piccolo is not

“contrary authority” within the meaning of Action Alliance, as

Adewani contends. The Ninth Circuit’s decisions do not bind

us, and Piccolo’s principal rationales were previously rejected

in Thomas.

In any event, the vacatur issued by the Supreme Court did

not mark the end of the Thomas case. On remand to this court,

one of the three defendants, Andrew Cook, withdrew his Booker
6

3

On the same remand from the Supreme Court, another of the

three defendants, Dale Smith, filed an unopposed motion to remand

the case to the district court for resentencing. In response, we issued

a judgment partially affirming the judgment of the district court, again

“in accordance with the opinion” in Thomas, and remanded the case

for resentencing. United States v. Cook, 161 F. App’x 7 (D.C. Cir.

May 10, 2005). The third defendant, Lawrence Thomas, sought and

was granted a remand of the record to the district court pursuant to our

opinion in United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005).

United States v. Thomas, No. 02-3073 (D.C. Cir. May 11, 2005). 

4

After we reinstated our judgment against Cook, he filed a second

petition for certiorari (joined in by defendant Dale Smith, see supra

note 3), which again contested our holding that escape constitutes a

crime of violence. See Petition for Writ of Certiorari, Cook v. United

States, 126 S. Ct. 394 (2005) (No. 05-5677). The Supreme Court

denied the writ. 126 S.Ct. 394 (2005).

claim. Thereafter, we directed the reinstatement of our 2004

judgment (in the consolidated Thomas case) as to Cook, see

United States v. Thomas, No. 02-3073 (D.C. Cir. May 11, 2005),

and we expressly affirmed the district court’s judgment as to

Cook “in accordance with [our 2004 Thomas] opinion,” United

States v. Cook, 161 F. App’x 7 (D.C. Cir. May 10, 2005).3 We

thus reinstated Thomas’ holding -- that the crime of escape is

categorically a crime of violence within the meaning of the

Sentencing Guidelines -- as the law of the case and of the

circuit.4 We follow that holding here and affirm the sentencing

determination of Adewani’s trial judge.

II

Adewani’s second contention, that there was insufficient

evidence to support his conviction, is also unavailing. The

evidence presented by the government showed, inter alia, the

following: that approaching police officers observed Adewani
7

slouching low in the driver’s seat of a parked car, from which

emanated the strong odor of marijuana; that in response to the

officers’ order to show his hands, Adewani raised his left hand

but refused to raise his right; that after removing Adewani and

two passengers from the car, the police discovered a loaded .38-

caliber revolver protruding from the right side of the driver’s

floor mat, near the place where Adewani’s right hand had been;

and that the car’s glove compartment contained numerous

documents and photographs relating to Adewani. Considering

this record evidence “in the light most favorable to the

government,” we find that a “rational trier of fact could have

found” that Adewani constructively possessed the handgun and

its complement of ammunition. United States v. Alexander, 331

F.3d 116, 127 (D.C. Cir. 2003) (internal quotation marks

omitted); see United States v. Clark, 184 F.3d 858, 863-64 (D.C.

Cir. 1999) (finding sufficient evidence of constructive

possession of a handgun found beneath the rear of the

defendant’s car seat, where the defendant had been seen

“reaching” near that location).

III

For the foregoing reasons, the judgment of the district court

is

Affirmed.