                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 23, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-10976
                          Summary Calendar



     UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

           versus

     ANTHONY BRUCE PETTIGREW,

                                          Defendant-Appellant.




           Appeal from the United States District Court
                for the Northern District of Texas
                     USDC No. 3:04-CR-19-ALL-L




Before GARWOOD, JOLLY, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Anthony Bruce Pettigrew appeals the sentence imposed after his

guilty-plea conviction for escape.    Pettigrew was sentenced as a

career offender under U.S.S.G. §§ 4B1.1 and 4B1.2 based on his

instant escape conviction and his two prior convictions for bank

robbery.    Based on his career offender status the applicable

guideline range was 37 to 46 months.         He was sentenced to 42


     *
      Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
months.

       Pettigrew argues in his first point that the instant escape

conviction   was   not   a   “crime       of   violence”   for   purposes   of

establishing career-offender status because it merely involved

failure to report to a Bureau of Prison facility (a half way house)

to which, as a part of his sentence, he was to report (following

his incarceration at FCI Three Rivers), and remain confined, as a

part of his federal sentence.         Pettigrew concedes that in United

States v. Ruiz, 180 F.3d 657, 676-77 (5th Cir. 1999), this court

held that every escape is “by its nature” a crime of violence

because of the inherent risk that a person could be injured during

the escape or the recapture of the escapee.           However, he contends

that Ruiz is factually distinguishable from his case and that the

reasoning of Ruiz was rejected in United States v. Charles, 301

F.3d 309, 313-14 (5th cir. 2002) (en banc).                One panel of this

court may not overrule another.       Unless Ruiz has been overruled by

the en banc opinion in Charles, we are bound by Ruiz’s holding that

escape is categorically a crime of violence under guidelines

section 4B1.2 – that “every” escape is such an offense.              Ruiz at

677.   While there is arguably some tension between portions of the

opinions in Charles and Ruiz, Charles, which dealt with motor

vehicle theft, does not cite or purport to overrule Ruiz and does

not even mention the offense of escape.           Moreover, Charles states

that the “by its nature, presented a serious potential risk of


                                      2
physical injury to another” clause of Application Note 1 to section

4B1.2(a)(2) “calls for a categorical inclusion or exclusion of

crimes.”      Charles at 314.      Ruiz is best read as holding that the

crime    of   escape   is   categorically     included.    There      is   not    a

sufficiently clear conflict between Charles and Ruiz to justify

this panel in departing from Ruiz on the basis that it has been

effectively overruled by Charles.1

     Pettigrew has not established that the district court erred in

finding that he was a career offender.

     Pettigrew, in his second and final point of error, also argues

that the district court improperly enhanced his sentence under

U.S.S.G. § 4B1.2 because he did not admit to the facts resulting in

the career offender enhancement.            In United States v. Booker, 125

S.Ct. 738, 749-50 (2005), the Supreme Court held that any fact

other than a prior conviction used to enhance a sentence must be

admitted by the defendant or found by a jury.             Because Pettigrew

pleaded guilty      to   escape,    which    is   categorically   a   crime      of

violence, he cannot show that the enhancement of his sentence




     1
         We observe in passing that most of the other circuits
(perhaps all that have spoken to it) appear to have followed Ruiz
in holding escape is categorically a crime of violence. See, e.g.,
United States v. Winn, 364 F.3d 7, 10-11 (1st Cir. 2004) (citing
cases); United States v. Thomas, 361 F.3d 653, 657-60 (D.C. Cir.
2004); United States v. Bryant, 310 F.3d 550, 554 (7th Cir. 2002).


                                       3
constituted error.2

     The judgment of the district court is thus

                           AFFIRMED.




     2
          The two prior bank robbery convictions were likewise
categorically crimes of violence, as “robbery” is a specifically
named offense in Application Note 1 to § 4B1.2. As such, these
prior convictions are within the prior conviction exception to
Booker’s Sixth Amendment holding.
      Pettigrew does not argue that he is entitled to resentencing
because the district court applied the guidelines on a mandatory,
rather than advisory, basis (nor did he make any such contention
below).    We therefore need not address that.       In any event,
reversal on the basis of such a contention would, at a minimum,
have to meet the prejudice prong of plain error review under FED.
R. CRIM. P. 52(b). The sentence here was in the upper half of the
guideline range, and there is nothing in the record to suggest that
the district court would have imposed a lesser sentence had it
treated the guidelines as merely advisory, so this standard is not
met.

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