                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         February 8, 2006
                                TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 05-5068
          v.                                           (N.D. of Okla.)
 DONALD LEE WARREN,                             (D.C. No. CR-04-166-TCK)

               Defendant-Appellant.


                           ORDER AND JUDGMENT           *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.          **




      Defendant-Appellant Donald Lee Warren pled guilty in the Northern

District of Oklahoma to one count of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Finding that Warren’s prior convictions

placed him under the applicable provision of the Armed Career Criminal Act

(ACCA), the district court sentenced Warren to a term of imprisonment of 188


      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
months. On appeal, Warren argues that the district court erred in applying the

ACCA.

       Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742, we affirm.

                                     I. Background

       Warren pled guilty to one count of being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1).   1
                                             At sentencing, the district court found that

Warren had been previously convicted of three violent felonies and therefore

qualified as an armed career criminal under the ACCA, 18 U.S.C. § 924(e). In

particular, the court stated that Warren’s prior convictions for one count of

second degree burglary and two counts of escape served as predicate offenses

under the ACCA.    2



       Warren objected at sentencing to the classification of his prior burglary

conviction as a predicate offense, arguing that the government had not produced


       Because Warren does not dispute the facts underlying this conviction, we
       1

need not discuss them here.
       2
        The district court noted that Warren had a prior conviction as a juvenile
for arson and expressed some doubt as to whether the particular facts of that
conviction would qualify it as a predicate offense under the ACCA. The court
nonetheless used the arson conviction as a predicate crime, reasoning that
Warren’s two convictions for escape and one conviction for second-degree
burglary were sufficient by themselves to satisfy 18 U.S.C. § 924(e)    . Because we
find that the district court did not err in classifying Warren’s three convictions for
burglary and escape as violent felonies, we need not address whether the district
court was correct with regard to the arson conviction.

                                             -2-
evidence of a “generic” burglary, i.e. “an unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to commit a crime.”

Taylor v. United States , 495 U.S. 575, 598 (1990). He further objected at

sentencing to his two prior escape convictions. Again, he argues the government

had not produced evidence that either escape was a crime of violence which can

serve as a predicate offense under the ACCA. He raises both arguments here.

                                    II. Analysis

      We review de novo a district court’s decision to impose a sentence

enhancement under the ACCA.       United States v. Moudy , 132 F.3d 618, 619 (10th

Cir. 1998).

      A. Burglary Conviction

      Warren first argues the district court erred in classifying his burglary

conviction under the ACCA as a predicate offense since the government failed to

establish on the record that the burglary in question involved all elements of the

“generic” offense. He suggests the charging document detailing the burglary was

never presented to the district court.

      The Supreme Court recently reiterated that a district court, when making an

inquiry under the ACCA, may refer “to the terms of the charging document, the

terms of a plea agreement or transcript of colloquy between judge and defendant

in which the factual basis for the plea was confirmed by the defendant, or to some


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comparable judicial record of this information” to determine whether a defendant

who pled “guilty to burglary defined by a nongeneric statute necessarily admitted

elements of the generic offense.”   Shepard v. United States , 125 S. Ct. 1254, 1263

(2005).

      Here, both parties concede that Oklahoma’s burglary statute is

“nongeneric,” meaning that the facts of the underlying offense must be reviewed

to determine whether it constitutes a crime of violence. Therefore, the district

court necessarily had to refer to one of the required judicial documents to

conclude whether Warren’s plea admitted elements of generic burglary. Although

Warren contends that the district court did not consider any such documents, the

record is to the contrary. The district court stated, “There is a second degree

burglary in Wagoner County, CFR-88-65, and as the government has indicated,

there is information from the charging document that it was a grocery store, a

Safeway store entered with intent to commit a felony, specifically, apparently a

shopping cart full of cigarettes and beer. That’s . . . a crime of violence.” Tr. of

Sentencing 9–10.

      Thus, because the district court reviewed the applicable charging document

and found that Warren’s burglary conviction involved all elements of the

“generic” offense, the court did not err in concluding that such conviction could

serve as a predicate crime under the ACCA.


                                          -4-
       B. Escape Convictions

       Warren next argues that although this circuit has repeatedly held that

escape convictions are properly classified as violent felonies, sentencing courts

should nonetheless be required to cross a minimal evidentiary threshold before

using such convictions to enhance a sentence under the ACCA. He suggests that

the reasoning of the Supreme Court’s recent opinion in        Shepard , 125 S. Ct. at

1257–58, acknowledging the distinction between “generic” and “nongeneric”

burglary statutes, should be extended to the escape statute at issue here. Since the

Oklahoma statute defines “escape” broadly to include both escape from jail as

well as mere failure to timely return to an institution following a work detail, he

contends the government should be required to prove the latter form of escape is a

violent felony.   3
                      We disagree with this reading of   Shepard .


       3
           The Oklahoma escape statute states in pertinent part:

B. Any person who is an inmate in the custody of the Department of Corrections
who escapes from said custody, either while actually confined in a correctional
facility, while assigned to an alternative to incarceration authorized by law, while
assigned to the Preparole Conditional Supervision Program . . . or while permitted
to be at large as a trusty, shall be guilty of a felony punishable by imprisonment
of not less than two (2) years nor more than seven (7) years.

C. For the purposes of this section, an inmate assigned to an alternative to
incarceration authorized by law or to the Preparole Conditional Supervision
Program shall be considered to have escaped if the inmate cannot be located
within a twenty-four hour period or if he or she fails to report to a correctional
facility or institution, as directed. This includes any person escaping by
                                                                        (continued...)

                                               -5-
       The holding in Shepard relies on the Supreme Court’s earlier opinion in

Taylor v. United States , 495 U.S. 575 (1990), where the Court originally

described this distinction with respect to burglary statutes. In     Taylor , the

Supreme Court held

       [A]n offense constitutes “burglary” for purposes of a § 924(e) sentence
       enhancement if either its statutory definition substantially corresponds
       to “generic” burglary, or [in the case of a “nongeneric” burglary statute]
       the charging paper and jury instructions actually required the jury to
       find all the elements of generic burglary in order to convict the
       defendant.

495 U.S. at 602.

       Shepard , which reinforced the Court’s earlier holding in      Taylor , does not

call into doubt any of our jurisprudence classifying all escapes as violent felonies

for purposes of the ACCA.     4
                                  We have repeatedly held, post-   Taylor , that every

escape scenario is a violent felony, regardless of whether violence is actually

involved. United States v. Moore , 401 F.3d 1220, 1226 (10th Cir. 2005);            Moudy ,



       (...continued)
       3

absconding from an electronic monitoring device or absconding after removing an
electronic monitoring device from their body.

Okla. Stat. tit. 21, § 443(B), (C) (2005).
       4
         The question in Shepard was not whether the Supreme Court’s distinction
between “generic” and “nongeneric” burglary statutes for purposes of the ACCA
was still applicable; the question before the Court was “whether a sentencing
court can look to police reports or complaint applications to determine whether an
earlier guilty plea necessarily admitted, and supported a conviction for, generic
burglary.” Shepard, 125 S. Ct. at 1257.

                                              -6-
132 F.3d at 620; United States v. Gosling , 39 F.3d 1140, 1141–43 (10th Cir.

1994). In short, “[u]nder § 924(e)(2)(B)(ii), an escape       always constitutes conduct

that presents a serious potential risk of physical injury to another.”    Moore , 401

F.3d at 1226 (emphasis added) (citation and quotation marks omitted).

       Therefore, the district court did not err in finding that Warren’s two prior

convictions for escape served as predicate offenses under the ACCA.

                                     III. Conclusion

       Accordingly, for the reasons stated above, we AFFIRM.

                                                          Entered for the Court

                                                          Timothy M. Tymkovich
                                                          Circuit Judge




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