                                                                              F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              FEB 26 2004
                                        TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,                       No. 03-3177
           v.                                            District of Kansas
 MICHAEL WAYNE WRIGHT,                           (D.C. No. 02-CR-40146–001-JAR)

                  Defendant-Appellant.


                               ORDER AND JUDGMENT           *




Before EBEL , MURPHY , and McCONNELL , Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal.     See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore submitted without oral argument.

       Defendant-Appellant Michael Wayne Wright challenges application of the

career offender provisions of U.S.S.G. § 4B1.1 to his case. Mr. Wright pleaded

guilty to distribution of approximately 113.4 grams of a mixture containing


       This order and judgment is not binding precedent, except under the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 judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
methamphetamine. At sentencing, over Defendant’s objection, the district court

found that as a result of prior convictions for aggravated escape and aggravated

assault, Defendant qualified for career offender status under the Sentencing

Guidelines. The court sentenced Mr. Wright to 188 months imprisonment.

Judgment was entered on June 23, 2003, and Defendant appeals.

      To determine whether Defendant qualified as a “career offender,” the

district court properly considered the requirements of U.S.S.G. § 4B1.1. Under

that section, Mr. Wright

      is a career offender if (1) he was at least eighteen years old at the
      time he committed the instant offense of conviction; (2) the instant
      offense of conviction is a felony that is either a crime of violence or
      a controlled substance; and (3) the defendant has at least two prior
      felony convictions of either a crime of violence or a controlled
      substance.

U.S.S.G. § 4B1.1(a). At issue here is whether Mr. Wright’s prior felony

conviction for aggravated escape was a “crime of violence.”

      The term “crime of violence” is defined in U.S.S.G. § 4B1.2(a) as:

      [A]ny 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.


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Id. (emphasis added). U.S.S.G. § 4B1.2, comment. n.1, lists ten offenses which

are each, by definition, a “crime of violence.” “Escape” is not included in that

listing. However, the guidelines provide that other non-listed offenses constitute

crimes of violence where “the conduct set forth (    i.e. , expressly charged) in the

count of which the defendant was convicted . . . by its nature, presented a serious

potential risk of physical injury to another.” U.S.S.G. § 4B1.2, comment. n.1.

       This Court has repeatedly held that prison escape constitutes a “crime of

violence” because it “involves conduct that presents a serious potential risk of

physical injury to another.”   United States v. Gosling , 39 F.3d 1140, 1142-43

(10th Cir. 1994); a ccord United States v. Springfield   , 196 F.3d 1180, 1185 (10th

Cir. 1999) ; United States v. Moudy , 132 F.3d 618, 620 (10th Cir. 1998);     United

States v. Mitchell , 113 F.3d 1528, 1533 (10th Cir. 1997).

       Defendant acknowledges the force of these precedents, but submits that

“the rule of the cases is contrary to the wording and intent of the career offender

guideline.” Appellant’s Br. 8. We are not persuaded, but even if we were, we

would be bound by the earlier decisions of this Court.     United States v.

Ensminger , 174 F.3d 1143, 1146-47 (10th Cir. 1999). Defendant offers no basis

for distinguishing these precedents, and we perceive none.




                                            -3-
     The judgment of the United States District Court for the District of Kansas,

is therefore, AFFIRMED .

                                             Entered for the Court,


                                             Michael W. McConnell
                                             Circuit Judge




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