* After examining the briefs and appellate record, this 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). The case is

therefore ordered submitted without oral argument. 

FILED

United States Court of Appeals

Tenth Circuit

February 16, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 09-5067

CALVIN D. PATILLAR,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. NO. 4:08-CR-00197-JHP-1)

Submitted on the briefs:*

Art Fleak, Tulsa, Oklahoma, for Defendant - Appellant.

Thomas Scott Woodward, Acting United States Attorney, and Matthew P. Cyran,

Assistant United States Attorney, Tulsa, Oklahoma, for Plaintiff - Appellee.

Before HARTZ, SEYMOUR, and EBEL, Circuit Judges.

HARTZ, Circuit Judge.

Appellate Case: 09-5067 Document: 01018367621 Date Filed: 02/16/2010 Page: 1 
-2-

Calvin Patillar pleaded guilty to robbery and to discharging a firearm in

furtherance of robbery. See 18 U.S.C. § 1951(a); id. § 924(c)(1)(A)(iii). Both

offenses were committed on December 2, 2008. The United States District Court

for the Northern District of Oklahoma sentenced him to 300 months’

imprisonment. Mr. Patillar’s sole argument on appeal is that the district court

erred in concluding that he had two prior Oklahoma convictions of crimes of

violence, which qualified him as a career offender under the 2008 edition of the

United States Sentencing Guidelines. See USSG § 4B1.1. He contends (1) that

his prior offense of larceny from the person was not sufficiently purposeful,

violent, and aggressive to be a crime of violence and (2) that his prior robbery

offense was too stale to be a crime of violence because he would have served his

entire term of imprisonment for that offense more than 15 years before

committing his federal offenses had Oklahoma acted with the requisite diligence

in revoking his probation. We have jurisdiction under 18 U.S.C. § 3742(a) and

affirm. 

We review de novo the district court’s interpretation of the guidelines. See

United States v. Rooks, 556 F.3d 1145, 1146–47 (10th Cir. 2009). The definition

of career offender includes a defendant who “has at least two prior felony

convictions of . . . a crime of violence . . . .” USSG § 4B1.1(a)(3). A crime of

violence is 

Appellate Case: 09-5067 Document: 01018367621 Date Filed: 02/16/2010 Page: 2 
1

An amendment in 2001, which has no impact on our analysis, raised the

statutory threshold to $500. See Okla. Stat. Ann. tit. 21, § 1704(2) (2009).

2

At the time of Mr. Patillar’s offense, there were two types of grand larceny

in Oklahoma: (1) larceny of property worth more than $50, Okla. Stat. Ann. tit.

21, § 1704(1) (1997), and (2) larceny from the person, id. § 1704(2). Mr. Patillar

contends that “Oklahoma did not set out which part of the [larceny] statute the

charges were filed under.” Reply Br. at 9. But the information specified

Mr. Patillar’s crime as larceny from the person, as did the document entitled

“Findings of Fact - Acceptance of Plea” signed by the Oklahoma judge, see Aplt.

Br. Attach. 1. Therefore, there is no ambiguity regarding the crime of which

Mr. Patillar was convicted.

-3-

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. 

Id. § 4B1.2(a).

Mr. Patillar was convicted in 1997 for larceny from the person and in 1985

for robbery with firearms. We first address the larceny offense.

The Oklahoma offense of larceny from the person occurs when “property,

although not of value exceeding Fifty Dollars ($50.00) in value, is taken from the

person of another.”1

 Okla. Stat. Ann. tit. 21, § 1704(2) (1997). To decide

whether the offense is a crime of violence, we examine only the statutory

elements of the offense, not the particular facts underlying the conviction. See

Rooks, 556 F.3d at 1147.2 We agree with Mr. Patillar that larceny from the

person does not satisfy USSG § 4B1.2(a)(1), which includes as a crime of

Appellate Case: 09-5067 Document: 01018367621 Date Filed: 02/16/2010 Page: 3 
-4-

violence an offense that “has as an element the use, attempted use, or threatened

use of physical force against the person of another.” Nor is larceny from the

person one of the offenses enumerated in either § 4B1.2(a)(2) (listing “burglary of

a dwelling, arson, . . . extortion, [or an offense that] involves use of explosives”),

or the application note, see id. § 4B1.2 cmt. n.1 (listing “murder, manslaughter,

kidnapping, aggravated assault, forcible sex offenses, [or] robbery”). Therefore,

larceny from the person is a crime of violence only if it falls within

§ 4B1.2(a)(2)’s residual clause—that is, if it “otherwise involves conduct that

presents a serious potential risk of physical injury to another.” 

The residual clause in § 4B1.2(a)(2) is identical to language in the Armed

Career Criminal Act (ACCA). See 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme

Court has recently interpreted that language in the ACCA context, see Begay v.

United States, 128 S. Ct. 1581 (2008), and its reasoning informs our reading of

the guidelines, see Rooks, 556 F.3d at 1150 (“We assume [Begay’s] reasoning

applies with equal force to determining whether a predicate offense falls within

§ 4B1.2(a)(2)’s residual clause, . . . .”). Begay held that the residual clause

covers crimes that are “roughly similar, in kind as well as in degree of risk

posed,” to the enumerated offenses of burglary, arson, extortion, and crimes

involving use of explosives, 128 S.Ct. at 1585, which “all typically involve

purposeful, violent, and aggressive conduct,” id. at 1586 (internal quotation marks

omitted); see Chambers v. United States, 129 S. Ct. 687, 692 (2009).

Appellate Case: 09-5067 Document: 01018367621 Date Filed: 02/16/2010 Page: 4 
-5-

Larceny from the person is purposeful because it requires “intent to deprive

another” of his property. Okla. Stat. Ann. tit. 21, § 1701 (1997). And when the

taking is from a person, the conduct is violent and aggressive because it creates a

significant risk of confrontation between thief and victim. See Rooks, 556 F.3d at

1151 (“The risk of confrontation [is an] indicator of violent and aggressive

conduct”). Our fellow circuits have consistently interpreted the residual clause of

§ 4B1.2(a)(b) as encompassing larceny from the person. See United States v. De

Jesus, 984 F.2d 21, 23–25 (1st Cir. 1993); United States v. Smith, 359 F.3d 662,

665–66 (4th Cir. 2004); United States v. Hawkins, 69 F.3d 11, 13 (5th Cir. 1995);

United States v. Payne, 163 F.3d 371, 374–75 (6th Cir. 1998); United States v.

Howze, 343 F.3d 919, 923–24 (7th Cir. 2003); cf. United States v. Thrower, 584

F.3d 70, 73–75 (2d Cir. 2009) (interpreting residual clause in ACCA to

encompass larceny from the person); United States v. Griffith, 301 F.3d 880, 885

(8th Cir. 2002) (same); United States v. Jennings, 515 F.3d 980, 989 (9th Cir.

2008) (same). Accordingly, we affirm the district court’s treatment of larceny

from the person as a crime of violence.

The district court also determined that Mr. Patillar’s Oklahoma offense of

robbery with firearms was a crime of violence. He was convicted as an adult in

1985 of committing the offense in 1984 (when he was 16 years old). Mr. Patillar

does not dispute that robbery is a crime of violence. But he argues that the

offense is too stale to be considered for career-offender status. 

Appellate Case: 09-5067 Document: 01018367621 Date Filed: 02/16/2010 Page: 5 
-6-

Under the guidelines a prior conviction can be considered if it led to “any

prior sentence of imprisonment exceeding one year and one month, whenever

imposed, that resulted in the defendant being incarcerated during any part of [the]

fifteen-year period” before he committed the offenses for which he is now being

sentenced. USSG § 4A1.2(e)(1); see also id. § 4B1.2 cmt. n.3. If a defendant’s

probation was revoked and his total term of imprisonment exceeded one year and

one month, the “date of last release from incarceration on such sentence”

determines whether his prior conviction falls within § 4A1.2(e)(1)’s window. Id.

§ 4A1.2(k)(2)(B)(i). Mr. Patillar committed his federal offenses on December 2,

2008. Hence, his 1985 robbery offense is a crime of violence if it resulted in his

incarceration at any time after December 2, 1993. In 1985 Mr. Patillar was

sentenced to eight years’ imprisonment, with the last four years suspended. He

was released in 1987; but in 1992 his parole was revoked and he was sentenced to

four years’ additional imprisonment, with two years suspended. He was not

released until February 1994, bringing his 1985 conviction within § 4A1.2(e)(1)’s

window by about two months.

Although Mr. Patillar acknowledges that his release occurred within 15

years of his federal offenses, he argues (as we understand his briefs) that the 1985

conviction is stale because he would have been released before December 1993

(and thus outside the 15-year window) if the state had not delayed for 16 months

before taking action to revoke his suspended sentence. (He contends that the

Appellate Case: 09-5067 Document: 01018367621 Date Filed: 02/16/2010 Page: 6 
-7-

application to revoke his probation was filed on March 19, 1990, and he was

arrested on April 19, 1990, but that the state took no action until he moved for a

speedy trial on August 6, 1991—16 months after his arrest.) In essence,

Mr. Patillar urges us to recognize a state-failure-to-act exception to § 4A1.2(e)(1).

We decline to do so. Section 4A1.2(e)(1) directs the sentencing judge to

consider “any prior sentence . . . whenever imposed, that resulted in the defendant

being incarcerated during any part of [the] fifteen-year period.” (emphases

added). Moreover, the application of § 4A1.2(k) does not turn on when or why a

defendant’s probation was revoked. To accept Mr. Patillar’s proposal would

contravene the plain meaning of these provisions. Cf. United States v. Adams,

403 F.3d 1257, 1260 (11th Cir. 2005) (refusing to recognize an exception when a

state-court backlog allegedly caused defendant’s sentence for a prior conviction to

fall within § 4A1.2(e)(2)’s window, because doing so would contravene that

provision’s plain meaning); United States v. Garcia, 89 F.3d 362, 366–67 (7th

Cir. 1996) (defendant not denied due process when the government delayed

revoking his parole for two years, causing his incarceration to fall within

§ 4A1.2(e)(1)). Also, our construction of the career-offender guideline is

consistent with the common notion of a career offender—which is predicated not

only on the seriousness of the offenses committed but also on how long the

offender can live in freedom before committing another offense (regardless of

Appellate Case: 09-5067 Document: 01018367621 Date Filed: 02/16/2010 Page: 7 
-8-

whether the period of freedom “should” have begun earlier). The district court

properly counted the Oklahoma robbery as a crime of violence.

 We AFFIRM Mr. Patillar’s sentence. We GRANT Mr. Patillar’s Motion to

Strike the attachment to the government’s brief.

Appellate Case: 09-5067 Document: 01018367621 Date Filed: 02/16/2010 Page: 8