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United States v. Bryant

November 13, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DONALD T. BRYANT, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 01 CR 156--Rudy Lozano, Judge.

Before Easterbrook, Ripple, and Kanne, Circuit Judges.

The opinion of the court was delivered by: Kanne, Circuit Judge.

ARGUED SEPTEMBER 20, 2002

Appellant Donald Bryant pleaded guilty to four counts of making false statements in connection with the transfers of firearms in violation of 18 U.S.C. § 922(a)(6). At his sentencing, the district court determined that Bryant was subject to an elevated base offense level under the federal sentencing guidelines due to his prior conviction for the crime of escape, which the district court found was a "crime of violence" under the guidelines. In this appeal, Bryant objects to the use of the increased base offense level, arguing that his previous conviction for escape cannot be characterized as a "crime of violence." Specifically, he argues that the particular circumstances of his "escape" from a halfway house presented no risk of physical injury to anyone, and therefore cannot be considered a "crime of violence." Because we believe that the crime of escape, as a category, "presents a serious potential risk of physical injury to another" and thus qualifies as a "crime of violence" under the federal sentencing guidelines, we affirm the sentence imposed by the district court.

I. History

On December 13, 2001, Donald Bryant pleaded guilty to four counts of making false statements and using false identification in connection with certain firearms transfers in violation of 18 U.S.C. § 922(a)(6). *fn1 Bryant's Presentence Investigation Report ("PIR") recommended that his base offense level be elevated to 20, rather than the typical base offense level of 14 for "prohibited persons" convicted under § 922(a)(6), reasoning that the increase was warranted as Bryant had previously been convicted of a "crime of violence." See U.S.S.G. § 2K2.1(a)(4)(A) (2002).

In April 1997, Bryant had been convicted of the crime of escape, which the PIR recognized as a "crime of violence." While the precise details of this previous escape conviction are not clear on this record, it appears that Bryant had been committed to Bradley House, a Community Corrections Center or halfway house, in Michigan City, Indiana, after violating the terms of his probation. On April 8, 1997, Bryant failed to return to this facility after having been granted permission to be temporarily absent for work purposes; he remained in escape status for approximately 10 days until April 17, 1997. Upon re-apprehension, Bryant was charged with and pleaded guilty to violating the federal scape statute, 18 U.S.C. § 751(a) *fn2 ; he was sentenced to 15 months imprisonment and 24 months of supervised release.

At his sentencing for the four counts at issue in the instant case, Bryant objected to the classification of this previous conviction for escape as a "crime of violence." The sentencing court disagreed, finding that an escape conviction qualified as a crime of violence as that term is used under the sentencing guidelines. Bryant was accordingly sentenced to 78 months imprisonment and now appeals this sentence.

II. Analysis

We review a sentencing court's factual determinations for clear error, while interpretations of the guidelines are reviewed de novo. United States v. Owolabi, 69 F.3d 156, 162 (7th Cir. 1995). Whether an offense is a "crime of violence" for purposes of sentencing is a question of law that this Court reviews de novo. United States v. Fife, 81 F.3d 62, 63 (7th Cir. 1996).

For crimes involving prohibited firearms transactions, including the crimes for which Bryant was sentenced in this case, the federal sentencing guidelines provide for varying base offense levels, depending on the circumstances of both the offense and the offender. See U.S.S.G. § 2K2.1. For example, if the defendant was a "prohibited person" at the time the offense was committed, as was the case with Bryant, the guidelines provide for a base offense level of 14. *fn3 See id. § 2K2.1(a)(6). If, however, the defendant "committed any part of the instant offense subsequent to sustaining one felony conviction of . . . a crime of violence," the guidelines provide for an elevated base offense level of 20. See id. § 2K2.1(a)(4)(A).

The commentary accompanying § 2K2.1 notes that "crime of violence" has the meaning given that term in § 4B1.2(a) of the guidelines and application note 1 of the commentary for that section. See id. § 2K2.1 cmt. n. 5. Section 4B1.2(a) defines a "crime of violence" as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--

(1) has an element the use, attempted use, or threatened use of physical force against ...


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