* This order and judgment is not binding precedent except under the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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 6 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOSE ERIC SILVA, Defendant-Appellant. No. 02-2308 (New Mexico) (D.Ct. No. CR-02-1167-LH)

ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. On July 16, 2002, Jose Eric Silva pled guilty to po ssession with intent to distribute fifty kilograms or more of marijuana, in violation of 21 U.S.C. §§1 We construe pro se pleadings liberally. Ledbetter v. City of Topeka , Kan.,

318 F.3d 1183, 1187 (10th Cir. 2003). -2- 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2. Over hi s objection, the district court adopted the presentence report which characterized him as a career offender pursuant to USSG § 4B1.1. The report calculated hi s offense level at thirty-two and his criminal history category at VI. The district court sentenced him to 220 months imprisonment, within the Guidelines range. He was also sentenced to unsupervised release for three years upon release f rom prison and payment of a $100 special assessment. In a written plea agreeme nt, Silva waived his right to appeal, except on the issue of being considered a c areer criminal offender. Silva’s appellate counsel has filed an Anders brief seeking leave to withdraw. Anders v. California , 386 U.S. 738, 744 (1967). Appellate counsel advises there are no meritorious grounds to proceedon appeal. Silva filed a pro se brief opposing his counsel’s claim that his appe al was without merit. 1 However, Silva inexplicably admits in his Response to the Anders Brief that “[t]he issue he raises is foreclosed by the Tenth C ircuit precedent.” In his own brief, Silva contends (1) the district court erred in adopting the presentence report that classified him as a career offender under USSG § 4B1.1; and (2) he should receive a two level decrease in his offense level f or acceptance of responsibility under USSG § 3E1.1.-3-

Conducting an independent review of the record, as required by Anders , we find no basis for modifying Silva’s sentence. Anders, 386 U.S. at 744. We first address the issue not waived by the plea agreement— Silva’s contention that he should not be classified as a career offender underUSSG § 4B1.1. Specifically, Silva contends the district court erred in determin ing he was a career offender on the grounds that (1) his prior attempted escape fro m county jail was not a crime of violence, and (2) his prior two convictions were no t violent or drug related. We review the district court's factual findings supporting a sentence enhancement for clear error, but we review the court's application of the Guidelines to those facts de novo, United States v. Farrow , 277 F.3d 1260, 1262 (10th Cir. 2002), concluding the district court did not err. The Guidelines define a defendant as a career offen der if: (1) the defendant is at least eighteen years of age at the time the o ffense was committed: “(2) the instant offense of conviction is a felony that is e ither a crime of violence or a controlled substance offense; and (3) the defendanthas at least two prior felony convictions of either a crime of violence or a cont rolled substance offense.” USSG § 4B1.1. With respect to the first two prongs, Silva was bor n in 1948 and arrested on March 15, 2002, for the instant offense, and theref ore over eighteen when the instant offense of conviction was committed. Moreo ver, his instant offense,-4-

possession with intent to distribute more than fifty kilograms of marijuana, clearly involves a controlled substance offense. And with respect to the last prong, the district court considered Silva’s two prior felony convictions: an attempted jail escape and a 1974 conviction for importing heroin. All escapes, including attempted escapes, are by th eir nature crimes of violence for purposes of the Guidelines. United States v. Moudy , 132 F.3d 618, 620 (10th Cir.) , cert. denied, 523 U.S. 1036 (1998); United States v. Gosling , 39 F.3d 1140, 1142 (10th Cir. 1994) (an escape, by its nature, presents a serious potential risk of physical injury to another and is therefore a crime of violence under USSG § 4B1.2). Thus, Silva’s attempted escape from county jail constitutes a crime of violence under § 4B1.1. With respect to Silva’s 1974 conviction for importi ng heroin, he argues his conviction is dated for consideration under USSG § 4B1.1. See USSG § 4A1.2(e) (limiting the computation of prior felonies to thos e that occurred in the previous fifteen years); but see USSG § 4A1.2(k)(2)(B) (requiring the counting time period to be modified by revocation of special parole). S ilva’s 1974 conviction, however, was extended into 1994 because he violated special parole terms on three separate occasions. His special parole terms were last revoked on July 15, 1994, and he was sentenced to forty-four months in custody. The 1994 revocation brought the 1974 conviction within the Guidelines’ fifteen-year look-back-5-

provision. USSG § 4A1.2(e) and (K)(2)(B). Next, we consider whether Silva should have receive d a two level decrease in his offense level for acceptance of responsibili ty under USSG § 3E1.1. As part of his plea agreement, Silva waived the right to ap peal that sentencing issue. The government did not breach the plea agreement; Silva ’s contentions, with the exception of the career offender issue, fall within the scope of the appeal waiver; Silva entered into the plea agreement knowingly and voluntarily; and no miscarriage of justice would result from enforcing the waiver. After careful consideration of the record, we conclude the waivershould be enforced. See United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en banc). For the foregoing reasons, the district court’s jud gment and sentence is AFFIRMED . Counsel's request to withdraw is GRANTED

. Entered by the Court: TERRENCE L. O’BRIEN United States Circuit Judge