                              UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                              No. 04-4065



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

            versus


KEVIN MAURICE LINDER,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-03-41)


Submitted:    May 21, 2004                    Decided:   June 8, 2004


Before WIDENER and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Aaron E.     Michel, Charlotte, North Carolina, for Appellant.
Robert J.    Conrad, Jr., United States Attorney, Gretchen C. F.
Shappert,    Assistant United States Attorney, Charlotte, North
Carolina,   for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Kevin Maurice Linder pled guilty to escape, 18 U.S.C.

§ 751 (2000), and was sentenced as a career offender to forty

months imprisonment.     U.S. Sentencing Guidelines Manual § 4B1.1

(2003).    Linder challenges the district court’s determination that

escape is a crime of violence as defined in § 4B1.2(a)(2) &

comment. (n.1).    We affirm.

            Linder argues on appeal that this court should reconsider

a number of its prior decisions.        Linder first takes issue with

this Court’s decision in United States v. Dickerson, 77 F.3d 774,

776 (4th Cir. 1996) (holding that felony attempted escape is a

crime of violence under § 4B1.1), and challenges the categorical

approach we have adopted for determining whether an offense is a

crime of violence under the “otherwise” clause of § 4B1.2(a)(2).

Id. (quoting United States v. Johnson, 953 F.2d 110, 114-15 (4th

Cir. 1991)).      Linder also contends that this court erred in

deciding United States v. Kinter, 235 F.3d 192, 195 (4th Cir. 2000)

(holding that Apprendi v. New Jersey, 530 U.S. 466 (2000), does not

apply to the sentencing guidelines).       He argues that due process

requires that any fact resulting in a sentence enhancement be

proved beyond a reasonable doubt and by evidence admissible at

trial.    Because a panel of this court may not overrule the decision

of a prior panel, Brubaker v. City of Richmond, 943 F.2d 1363,

1381-82 (4th Cir. 1991), his argument fails in each instance.


                                - 2 -
            Linder further maintains that the Sentencing Commission

violated the Due Process Clause by defining a crime of violence in

terms different from those used in 18 U.S.C. § 16(b) (2000).

Section 16(b) differs from § 4B1.2(a)(2) in that § 16(b) states

that a crime of violence may be “any other offense that is a felony

and that, by its nature, involves a substantial risk that physical

force against the person or property of another may be used in the

course of committing the offense,” while § 4B1.2(a)(2) provides

that a crime of violence may be an offense that “otherwise involves

conduct that presents a serious potential risk of physical injury

to another.”     The commentary to § 4B1.2 clarifies the guideline by

stating that the offense may be one that, “by its nature, presented

a serious potential risk of physical injury to another.” Our prior

decisions hold that the discrepancy between § 16 and § 4B1.1 is not

significant.     See United States v. Martin, 215 F.3d 470, 474 n.4

(4th Cir. 2000) (noting that, “the definition in 18 U.S.C. § 16

uses operative language that is similar to that used in U.S.S.G.

§ 4B1.2(a).     Thus, our determinations regarding what constitutes a

crime of violence for purposes of 18 U.S.C.A. § 16 are also

relevant [for career offender determination]”); United States v.

Wilson,   951   F.2d   586,   588   (4th    Cir.   1991)   (modification   of

guideline language that deviated from § 16 definition of crime of

violence did not alter scope of court’s inquiry into nature of

offense).


                                    - 3 -
           We therefore affirm the sentence imposed by the district

court.   We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




                               - 4 -
