United States v. Todd Richard Chazen, No. 11-2523 (8th Cir. 2012)
Annotate this CaseCourt Description: Criminal case - Sentencing. District court properly applied the modified categorical approach in analyzing defendant's Minnesota escape conviction and did not err in concluding that his escape from custody was a predicate offense under the Armed Career Criminal Act.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 11-2523 ___________ United States of America, Appellee, v. Todd Richard Chazen, Appellant. * * * * Appeal from the United States * District Court for the District * of Minnesota. * * [UNPUBLISHED] * ___________ Submitted: March 12, 2012 Filed: March 28, 2012 ___________ Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges. ___________ PER CURIAM. Todd Chazen appeals his conviction for being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), asserting that the district court1 improperly sentenced him as an armed career criminal. As relevant here, to qualify as such a criminal, a defendant must have been convicted of three felonies that "involve[] conduct that presents a serious potential risk of physical injury to another." See 18 U.S.C. § 924(e)(2)(B)(ii). Chazen admits that he has two such convictions, but argues that his conviction for an escape from custody under Minn. Stat. § 609.485, subd. 2(1), 1 The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota. should not have been counted as the third. He contends that this statute is overinclusive, that is, that it penalizes offenses that do not qualify as predicates for armed career criminal status, because on its face it criminalizes a mere failure to return to custody after a furlough. The district court recognized the over-inclusiveness of the Minnesota statute, but consulted the criminal complaint in Chazen's case, which charged him with escaping from a county jail. This was a proper application of the so-called modified categorical approach, see United States v. Vincent, 575 F.3d 820, 824 (8th Cir. 2009), cert. denied, 130 S. Ct. 3320 (2010), and we have held that an escape from custody is a predicate offense under the Armed Career Criminal Act. In fact, we have a precedent that is squarely on point: It involves the very same statute as the one in issue here and requires the result that the district court reached here. See United States v. Furqueron, 605 F.3d 612 (8th Cir. 2010). Chazen argues that Furqueron was wrongly decided, but it wasn't. Besides, we are not at liberty to overrule a previous panel. United States v. Craddock, 593 F.3d 699, 702 (8th Cir. 2010). Affirmed. ______________________________ -2-
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