APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. No. 4:04-CR-00214-CVE-1)
The opinion of the court was delivered by: Matheson, Circuit Judge.
United States Court of Appeals Tenth Circuit
Elisabeth A. Shumaker Clerk of Court
Before TYMKOVICH,Circuit Judge, BRORBY,Senior Circuit Judge,and MATHESON, Circuit Judge.
The sole question in this appeal is whether the district court erred in interpretingand applying this court's mandate when it resentenced defendant with an "armed career criminal" classification on remand from a prior appeal. Exercising our jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), we affirm.
I. Mr. Shipp was convicted of possessing a firearm after a felony conviction. At sentencing, he was classified as an "armed career criminal" pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2) ("ACCA"), based upon three predicate state convictions for violent felonies or serious drug offenses: (1) a 1984 conviction for assault with a dangerous weapon; (2) a 1984 conviction for possession of marijuana with intent to distribute; and (3) a 1987 escape conviction for failure to report to a penal institution after he was permitted to be away on an official pass. Although the guideline range for his felon in possession conviction was 27 to 33 months, Mr. Shipp's guideline range with the ACCA classification was 188 to 235 months because those sentenced with the ACCA classification are subject to a statutory minimum of 180 months' imprisonment. He was sentenced to 188 months.
We affirmed Mr. Shipp's conviction and sentence on direct appeal. United States v. Shipp, 233 F. App'x 847, 849 (10th Cir. 2007). Mr. Shipp then filed a pro se 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. He argued that the district court erred in relying upon a "walkaway" escape conviction. He cited the Ninth Circuit's decision in United States v. Piccolo, 441 F.3d 1084 (9th Cir. 2006), as not treating this type of crime as a violent felony under the ACCA. The district court denied the motion.
Mr. Shipp applied for a Certificate of Appealability ("COA") with this court.
About two weeks after Mr. Shipp applied for a COA, the Supreme Court decided Chambers v. United States, 129 S. Ct. 687, 691-93 (2009), holding that the Illinois crime of failure to report for penal confinement falls outside the ACCA's "violent felony" definition. The government filed a Fed. R. App. P. 28(j) letter notifying this court of the Chambers decision and indicating that Chambers would likely apply to Mr. Shipp's case. Mr. Shipp filed a response to the government's letter, arguing that his escape conviction is not a violent felony under Chambers and that he therefore should not be subject to the ACCA classification.
We granted a COA on one issue: "whether Chambers . . . applies retroactively on collateral review to convictions that were final at the time the case was decided by the Supreme Court." United States v. Shipp, 589 F.3d 1084, 1086 (10th Cir. 2009) (quotation omitted). We concluded that Mr. Shipp's escape conviction for failure to report does not qualify as a violent felony under Chambers and that he was entitled to retroactive application of Chambers on collateral review. See id. at 1090-91. Accordingly, we reversed the district court's denial of Mr. Shipp's § 2255 motion. We remanded with the following instructions: "We REMAND the case to the district court with directions to correct Mr. Shipp's sentence in light of Chambers, 129 S. Ct. at 691, by resentencing Mr. Shipp without the 'armed career criminal' classification." Id. at 1091.
On remand, the district court ordered the parties to show cause why Mr. Shipp should not be resentenced under the ACCA when, even without counting the escape conviction, he still had three predicate offenses for violent felonies or serious drug offenses. The parties filed responses. The district court determined that, consistent with this court's mandate, it could conduct a de novo resentencing and that it could consider any convictions from Mr. Shipp's criminal history as predicate offenses, except the escape conviction addressed by this court's prior decision. The district court then resentenced Mr. Shipp to a term of 180 months' imprisonment.*fn1 The court imposed the "armed career criminal" classification by substituting a 1969 burglary conviction for the escape conviction as the third predicate offense under the ACCA. Mr. Shipp appeals from his resentencing.
II. Mr. Shipp contends that the district court violated the mandate rule by resentencing him with the "armed career criminal" classification after this court had mandated that he should be resentenced without that classification. The government responds that the district court complied with the prior panel's mandate to correct Mr. Shipp's sentence in light of Chambers by not relying on the escape conviction as a predicate offense for the "armed career criminal" classification. The government argues further that the district court ...