                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-2454
                                   ___________

United States of America,               *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the Western
      v.                                * District of Missouri.
                                        *
Christopher R. Luersen,                 *     [PUBLISHED]
                                        *
                   Appellant.           *
                                   ___________

                             Submitted: January 15, 2002

                                  Filed: January 24, 2002
                                   ___________

Before BOWMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                          ___________

PER CURIAM.

        Christopher R. Luersen pleaded guilty to violations of 18 U.S.C. §§ 2113(a),
2312 for attempting to rob a bank and driving a stolen van across state lines. At
sentencing, the bank teller testified that Luersen’s demand note stated either “give
me all your money or I will kill you or give me all your money or you will die.” The
first presentence investigation report (PSR) noted Luersen had two earlier convictions
for burglary and escape, enhanced Luersen’s base offense level by two levels for
threatening the bank teller with death, and concluded the appropriate sentencing
range was 41 to 51 months imprisonment. This Court then issued United States v.
Nation, 243 F.3d 467, 472 (8th Cir. 2001), which held that escape is categorically a
crime of violence. The probation department submitted an addendum to the PSR
concluding that under Nation, Luersen had two earlier crimes of violence (burglary
and escape) and was subject to the career offender provision under § 4B1.1. U.S.
Sentencing Guidelines Manual (2000). The sentencing range was recalculated as
151-188 months imprisonment. Luersen objected. The district court* sentenced
Luersen to 151 months imprisonment for attempted robbery and a concurrent 120
months for interstate transport of a stolen vehicle. Luersen now appeals, challenging
the application of the career offender provision § 4B1.1 and the death threat
enhancement § 2B3.1(b)(2)(F). Having reviewed the district court’s application of
the guidelines de novo, and reviewed with due deference the district court’s factual
finding of a death threat for clear error, we affirm Luersen’s sentence. United States
v. Snoddy, 139 F.3d 1224, 1226-27(8th Cir. 1998).

       Luersen argues the classification of his earlier escape as a crime of violence
under Nation violates his due process rights and the prohibition against ex post facto
laws. Bouie v. City of Columbia, 378 U.S. 347, 352-53 (1964). Because Nation was
not an unforeseeable judicial interpretation of the sentencing guidelines, however,
Luersen’s arguments fail. See Hill v. Hopkins, 245 F.3d 1038, 1039 (8th Cir.), cert.
denied, 122 S. Ct. 280 (2001). Nation’s holding is derived from the guidelines
themselves, which instruct courts to determine whether an offense is a crime of
violence based on the nature of the crime. § 4B1.2, cmt. n.1. In addition, four Courts
of Appeals before us concluded that escape is categorically a crime of violence.
United States v. Ruiz, 180 F.3d 675, 677 (5th Cir. 1999); United States v. Harris, 165
F.3d 1062, 1067-68 (6th Cir. 1999); United States v. Dickerson, 77 F.3d 774, 775-77
(4th Cir. 1996); United States v. Gosling, 39 F.3d 1140, 1142-43 (10th Cir. 1994).
We also reject Luersen’s argument that Nation’s holding was unforeseeable based on
the dicta in United States v. Kind, 194 F.3d 900, 907 (8th Cir. 1999), cert. denied, 528


      *
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

                                          -2-
U.S. 1180 (2000). The classification issued in Nation was not unexpected or
indefensible, thus retroactively applying Nation to Luersen’s earlier escape offense
is not unconstitutional. See Fogie v. Thorn Americas, Inc., 95 F.3d 645, 651 (8th Cir.
1996).

       We reject Luersen’s claim that there was insufficient evidence to support the
death threat enhancement under § 2B3.1(b)(2)(F). Although the teller did not recall
the precise wording of the note, both of the teller’s versions included a death threat.
The district court’s finding is supported by the evidence and is not clearly erroneous.
See United States v. Tolen,143 F.3d 1121, 1122 (8th Cir. 1998). Besides, because
Luersen is a career offender, the death threat enhancement does not affect his
sentence. United States v. Gomez, 271 F.3d 779, 781 (8th Cir. 2001).

      We thus affirm Luersen’s sentence.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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