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The Honorable Carol Jackson, Chief Judge, United States District Court for the

Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2268 

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United States of America, *

*

Plaintiff-Appellee, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

Larry Edward Stead, * [UNPUBLISHED]

*

Defendant-Appellant. *

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Submitted: January 9, 2006

Filed: January 19, 2006 

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Before BYE, HEANEY, and COLLOTON, Circuit Judges.

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PER CURIAM.

Larry Edward Stead appeals the district court's1

 ruling his prior walkaway

escapes constituted crimes of violence and appeals his sentence as unreasonable.

Stead argues the district court erred in concluding his prior walkaway escape

convictions were crimes of violence. He first argues the fact of his prior conviction

must be admitted by him or proven beyond a reasonable doubt. This argument is
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devoid of merit. See United States v. Booker, 125 S. Ct. 738, 756 (2005); United

States v. Camp, 410 F.3 1042, 1047 (8th Cir. 2005) ("The fact of a prior conviction

need not be submitted to a jury or proved beyond a reasonable doubt."). 

Once a fact of prior conviction is determined, the district court must determine

the legal question of whether the crime is one of violence. Camp, 410 F.3d at 1047

(citing United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005)). We have

determined all escapes, including walkaway escapes, constitute crimes of violence.

United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir. 2002). We may not

overrule another panel's decision. United States v. Prior, 107 F.3d 654, 660 (8th Cir.

1997). Because we have determined categorically all escapes are crimes of violence,

we need not look to the underlying facts of the conviction. Abernathy, 277 F.3d at

1051. Accordingly, the district court committed no error by concluding Stead's

escapes were crimes of violence even when no violence was alleged in the indictment.

Stead argues his sentence was unreasonable because it does not account for the

Parole Commission's possible imposition of a parole violator term of imprisonment.

28 C.F.R. § 2.36. Stead argues his sentence is unreasonable because it is set to run

consecutively to his undischarged term of imprisonment and would not begin to run

until after he had served the potential parole violator term, thereby extending the time

he must serve under the abolished parole system. 

Stead acknowledged to the district court that United States Sentencing

Guidelines (U.S.S.G.) § 5G1.3 applies to his walkaway escape convictions and

mandates the imposition of a consecutive sentence. Cf. United States v. Beers, 91

F.3d 1201 (8th Cir. 1996) (affirming application of consecutive sentence for

conviction of escape from the custody of the Attorney General). Stead, however,

argues the district court should have departed downward to account for the parole

violator term and to make the sentences run concurrently. See United States v.
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Whitehorse, 909 F.2d 316, 320 (8th Cir. 1990) (considering as a departure a district

court's decision to impose a concurrent sentence rather than a consecutive sentence as

required by the Guidelines). The district court acknowledged it had authority to

depart by imposing a concurrent sentence, but thought "a concurrent sentence would

not be appropriate; and that a consecutive sentence would be reasonable under the

circumstances." Because the district court was aware of its authority to depart, we

have no jurisdiction to review the district court's decision not to depart downward.

United States v. Patten, 397 F.3d 1100, 1105 (8th Cir. 2005). 

After calculating the proper Guideline range, the district court appropriately

considered the factors enumerated in 18 U.S.C. § 3553(a). Upon review of the record,

we conclude the ultimate sentence imposed by the district court was reasonable.

 We therefore affirm the district court.

HEANEY, Circuit Judge, concurring.

As a circuit, we adhere to a fiction that the “crime of violence” enhancement

can be applied categorically. As I have noted in my concurrence in United States v.

Mohr, 407 F.3d 898, 902-04 (2005) (en banc), perhaps in the abstract this approach

has an appeal. But as this principle is applied, our circuit has too broad an

interpretation of what the guidelines mean when they state violent crimes include

“conduct that presents a serious potential risk of physical injury to another.” See

U.S.S.G. § 4B1.2(a)(2). To my mind, our interpretation includes abstract possibilities

that violence can theoretically occur, and terms it a “crime of violence.” In crimes

such as the burglary of a commercial building and car theft, we fail to consider the

conduct underlying these convictions.

I suggest the crime of “escape” is similar. Escape can be as simple as failing

to return on time to a work-release program, or as is the case in this matter, walking
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away from a community treatment center. On the other hand, it can be a planned

confrontation with police and/or prison security. Our current method of determining

“crimes of violence” for the purposes of the guidelines focuses only on the potential

for violence (which is present in almost every felony and misdemeanor) while failing

to consider the gravity of the risk for violence involved in the particular facts of the

offense.

Our panel is not at liberty to overturn the precedent set in United States v.

Nation, 243 F.3d 467, 472-73 (8th Cir. 2001). This case illustrates our circuit’s need

to correct our missteps en banc, on how we evaluate “crimes of violence.” Other

circuits have indeed addressed this issue as it relates to burglaries. See, e.g., United

States v. Wilson, 168 F.3d 916, 929 (6th Cir. 1999) (holding that while certain

burglaries of a commercial building may qualify as crimes of violence, “the burglary

of a non-dwelling is not a crime of violence per se under [the guidelines]”); United

States v. Nelson, 143 F.3d 373, 374-75 (7th Cir. 1998) (declining to adopt a per se

rule that burglaries of commercial buildings are crimes of violence); United States v.

Harrison, 58 F.3d 115, 119 (4th Cir.1995) (declining to apply the career-offender

enhancement when there was no evidence that predicate convictions involved

burglaries of dwellings, since “under USSG § 4B1.2 only burglary of a dwelling

constitutes a crime of violence”); United States v. Spell, 44 F.3d 936, 938 (11th Cir.

1995) (“By explicitly including the burglary of a dwelling as a crime of violence, the

Guidelines intended to exclude from the violent crime category those burglaries which

do not involve dwellings and occupied structures.”); United States v. Smith, 10 F.3d

724, 730-34 (10th Cir. 1993) (holding that burglary of a commercial office is not a

crime of violence). Our failure to address how this circuit defines a “crime of

violence” will result in significant sentencing disparities between us and the other

circuits.

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