United States v. Larry Jack Nation, United States of Am. v. Larry Jack Nation, 243 F.3d 467 (8th Cir. 2001). · Go Syfert
United States v. Larry Jack Nation, United States of Am. v. Larry Jack Nation, 243 F.3d 467 (8th Cir. 2001). Cases Citing This Book View Copy Cite
175 citation events (175 in the last 25 years) across 16 distinct courts.
Strongest positive: United States v. Earnest Pearson (ca8, 2009-01-30)
Treatment trajectory · 2001 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Earnest Pearson
8th Cir. · 2009 · quote attribution · 1 verbatim quote · confidence high
we believe that every escape, even a so- called 'walkaway' escape, involves a potential risk of injury to others.
examined Cited as authority (verbatim quote) United States v. Collier
6th Cir. · 2007 · quote attribution · 1 verbatim quote · confidence high
every escape, even a so-called 'walkaway' escape, involves a potential risk of injury to others. . . . even the most peaceful escape cannot eliminate the potential for violent conflict when the authorities attempt to recapture the escapee.
discussed Cited as authority (rule) United States v. Parks (2×)
8th Cir. · 2010 · confidence medium
We conclude that § 575.210 in broadly prohibiting escapes from confinement is potentially over-inclusive; therefore, applying the modified categorical approach, any § 575.210 class D felony conviction for a failure-to-return offense is not a crime of violence under Chambers . [6] Prior decisions also focused on the risk of violence when a successful escapee is later recaptured—"[e]ven the most peaceful escape cannot eliminate the potential for violent conflict when the authorities attempt to recapture the escapee." United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001).
discussed Cited as authority (rule) United States v. Lee
11th Cir. · 2009 · confidence medium
See, e.g., United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004); United States v. Thomas, 361 F.3d 653, 660 (D.C.Cir.2004); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States v. Jackson, 301 F.3d 59, 62-63 (2d Cir.2002); United States v. Frank-tin, 302 F.3d 722, 724 (7th Cir.2002); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001); United States v. Springfield, 196 F.3d 1180, 1185 (10th Cir.1999); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.1999); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999); United States v. Hairston, 71 F.3d 115, 117-18 (4…
cited Cited as authority (rule) United States v. Mills
8th Cir. · 2009 · confidence medium
United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001).
cited Cited as authority (rule) United States v. Thomas F. Mills
8th Cir. · 2009 · confidence medium
United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001).
discussed Cited as authority (rule) United States v. Parks
8th Cir. · 2009 · confidence medium
Before Chambers , we held that “every escape, even a so-called ‘walkaway’ escape, involves a potential risk of injury to others” and “qualifies as a crime of violence pursuant to U.S.S.G. § 4B1.2.” United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001).
discussed Cited as authority (rule) United States v. Jose Parks (2×)
8th Cir. · 2009 · confidence medium
Escape or attempted escape from confinement is a class D felony except that it is: (1) A class A felony if it is effected or attempted by means of a deadly weapon or dangerous instrument or by holding any person as hostage; (2) A class C felony if the escape or attempted escape is facilitated by striking or beating any person. -4- Before Chambers, we held that “every escape, even a so-called ‘walkaway’ escape, involves a potential risk of injury to others” and “qualifies as a crime of violence pursuant to U.S.S.G. § 4B1.2.” United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001…
discussed Cited as authority (rule) United States v. Pearson
8th Cir. · 2009 · confidence medium
United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (“We believe that every escape, even a so-called ‘walkaway’ escape, involves a potential risk of injury to others.”); see also United States v. He-adbird, 461 F.3d 1074, 1079 (8th Cir.2006) (same); United States v. Gary, 341 F.3d 829, 836 (8th Cir.2003) (same).
discussed Cited as authority (rule) United States v. Shipp
N.D. Okla. · 2008 · confidence medium
See, e.g., United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States v. Dickerson, 77 F.3d 774, 777 (4th Cir. 1996); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.1999); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999); United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001); United States v. Gay, 251 F.3d 950 , 952 (11th Cir.2001). 12 .
discussed Cited as authority (rule) United States v. John Legros
8th Cir. · 2008 · confidence medium
See United States v. Solomon, 432 F.3d 824, 827 (8th Cir.2005) (standard of review); United States v. Tyler, 238 F.3d 1036, 1038 (8th Cir.2001) (court considers all facts for cumulative meaning in determining whether probable cause exists); see also Illinois v. Gates, 462 U.S. 213 , 244 n. 13, 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983) (relevant inquiry in probable-cause determination is not whether particular conduct is “innocent” or “guilty,” but degree of suspicion that attaches to particular types of noncriminal acts); United States v. Ryan, 293 F.3d 1059, 1062 (8th Cir.2002) (holding …
discussed Cited as authority (rule) United States v. Collier
6th Cir. · 2007 · confidence medium
See, e.g., United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004) (citing Gosling to hold that the defendant's failure to return to a halfway house was a "crime of violence” because of the potential risk to officers attempting to capture an escapee); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002) (holding that even “walk away” escape is a "crime of violence” because of the danger posed by an escapee as he "continuéis] to evade police and avoid capture”); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) ("[E]veiy escape, even a so-called 'walkaway' escape, involves a…
discussed Cited as authority (rule) United States v. Mathias (2×)
4th Cir. · 2007 · confidence medium
Such an encounter leads to an "immediate and substantial United States v. Turner, 285 F.3d 909, 915-16 (10th Cir. 2002) (same); United States v. Luster, 305 F.3d 199, 202 (3d Cir. 2002) (walkaway escape is a crime of violence under USSG § 4B1.2); United States v. Gay, 251 F.3d 950 , 954-55 (11th Cir. 2001) (per curiam) (same); United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001) (same); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir. 1999) (same); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir. 1999) (escape, by its nature, quali- fies as a crime of violence under USSG § 4…
discussed Cited as authority (rule) United States v. Linwood Charles Mathias (2×)
4th Cir. · 2007 · confidence medium
In sum, “[e]ven the most peaceful escape cannot eliminate the potential for violent conflict when the authorities attempt to recapture the escapee.” United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001).
discussed Cited as authority (rule) United States v. Fednert Orisnord
11th Cir. · 2007 · confidence medium
United States v. Adewani, 467 F.3d 1340, 1341 (D.C.Cir.2006); United States v. Turner, 285 F.3d 909, 916 (10th Cir.2002); United States v. Jackson, 301 F.3d 59, 63 (2d Cir.2002); United States v. Gay, 251 F.3d 950 , 955 (11th Cir.2001); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999).
examined Cited as authority (rule) State v. Fisher (4×) also: Cited "see"
Kan. · 2007 · signal: cf. · confidence medium
Cf. Nation, 243 F.3d at 469-70 (storage of certain legal items together, e.g., starter fluid [ether], coffee filters, and plastic and glass containers, raised sufficient suspicion of criminal activity to support a finding of probable cause).
discussed Cited as authority (rule) United States v. Faines
3rd Cir. · 2007 · confidence medium
See, e.g., United States v. Adewani, 467 F.3d 1340, 1342 (D.C.Cir.2006); United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004); United States v. Jackson, 301 F.3d 59, 62-63 (2d Cir.2002); United States v. Dickerson, 77 F.3d 774, 777 (4th Cir.1996); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.1999); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999); United States v. Golden, 466 F.3d 612, 614 (7th Cir.2006); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001); United States v. Turner, 285 F.3d 909, 915-16 (10th Cir.2002); United States v. Gay, 251 F.3d 950 , 954-55 (11th …
discussed Cited as authority (rule) United States v. Chambers, Deondery
7th Cir. · 2007 · confidence medium
United States v. Winn, 364 F.3d 7 (1st Cir. 2004); United States v. Luster, 305 F.3d 199, 202 (3d Cir. No. 06-2405 3 2002); United States v. Jackson, 301 F.3d 59, 63 (2d Cir. 2002); United States v. Turner, 285 F.3d 909, 915-16 (10th Cir. 2002); United States v. Gay, 251 F.3d 950 (11th Cir. 2001) (per curiam); United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001); United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir. 1999); United States v. Mitchell, 113 F.3d 1258 , 1533 (10th Cir. 1997).
discussed Cited as authority (rule) United States v. Deondery Chambers
7th Cir. · 2007 · confidence medium
United States v. Winn, 364 F.3d 7 (1st Cir.2004); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States v. Jackson, 301 F.3d 59, 63 (2d Cir.2002); United States v. Turner, 285 F.3d 909, 915-16 (10th Cir.2002); United States v. Gay, 251 F.3d 950 (11th Cir.2001) (per curiam); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001); United States v. Ruiz, 180 F.3d 675 (5th Cir.1999); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999); United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir.1997).
discussed Cited as authority (rule) United States v. Deondery Chambers, II
7th Cir. · 2007 · confidence medium
United States v. Winn, 364 F.3d 7 (1st Cir. 2004); United States v. Luster, 305 F.3d 199, 202 (3d Cir. No. 06-2405 3 2002); United States v. Jackson, 301 F.3d 59, 63 (2d Cir. 2002); United States v. Turner, 285 F.3d 909, 915-16 (10th Cir. 2002); United States v. Gay, 251 F.3d 950 (11th Cir. 2001) (per curiam); United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001); United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir. 1999); United States v. Mitchell, 113 F.3d 1258 , 1533 (10th Cir. 1997).
discussed Cited as authority (rule) State v. Ibarra
Kan. · 2006 · confidence medium
The argument that the odor of ether, a noncontrolled substance, cannot constitute probable cause was rejected in United States v. Ryan, 293 F.3d 1059, 1061-62 (8th Cir. 2002), and United States v. Nation, 243 F.3d 467, 470 (8th Cir. 2001).
discussed Cited as authority (rule) United States v. William Joseph Headbird
8th Cir. · 2006 · confidence medium
United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir.2002) (“[Escape is always a violent crime.”); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (noting that “every escape, even a so-called ‘walk away’ escape, involves a potential risk of injury to others” and concluding that escape convictions qualify as crimes of violence).
discussed Cited as authority (rule) United States v. William J. Headbird
8th Cir. · 2006 · confidence medium
United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir. 2002) (“[E]scape is always a violent crime.”); United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001) (noting that “every escape, even a so-called ‘walk away’ -8- escape, involves a potential risk of injury to others” and concluding that escape convictions qualify as crimes of violence).
discussed Cited as authority (rule) Canada v. Gonzales
2d Cir. · 2006 · confidence medium
See, e.g., United States v. Gay, 251 F.3d 950 , 955 (11th Cir.2001) (per curiam) (holding escape is a crime of violence under U.S.S.G. § 4B 1.2(a) because escape presents “the potential risk of violence, even when it involves a ‘walk-away’ from unsecured correctional facilities”); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (“Even the most peaceful escape cannot eliminate the potential for violent conflict when the authorities attempt to recapture the escapee.
discussed Cited as authority (rule) Canada v. Gonzales
2d Cir. · 2006 · confidence medium
See, e.g., United States v. Gay, 251 F.3d 950 , 955 (11th Cir.2001) (per curiam) (holding escape is a crime of violence under U.S.S.G. § 4B1.2(a) because escape presents "the potential risk of violence, even when it involves a `walk-away' from unsecured correctional facilities"); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) ("Even the most peaceful escape cannot eliminate the potential for violent conflict when the authorities attempt to recapture the escapee.
discussed Cited as authority (rule) United States v. Raymond H. Hollis (2×)
8th Cir. · 2006 · confidence medium
See United States v. McCall, 439 F.3d 967, 969 (8th Cir.2006) (considering de novo whether a conviction for driving while intoxicated is a “violent felony” under § 924(e)(2)(B) which uses a similar definition to that for “crime of violence” in U.S.S.G. § 4B1.2(a)); United States v. Na tion, 243 F.3d 467, 471 (8th Cir.2001) (engaging in de novo review for interpretation and construction of the Sentencing Guidelines).
discussed Cited as authority (rule) United States v. Raymond Hollis (2×)
8th Cir. · 2006 · confidence medium
See United States v. McCall, 439 F.3d 967, 969 (8th Cir. 2006) (considering de novo whether a conviction for driving while intoxicated is a “violent felony” under § 924(e)(2)(B) which uses a similar definition to that for “crime of violence” in U.S.S.G. § 4B1.2(a)); United States v. Nation, 243 F.3d 467, 471 (8th Cir. 2001) (engaging in de novo review for interpretation and construction of the Sentencing Guidelines).
discussed Cited as authority (rule) United States v. Christopher Haney
8th Cir. · 2006 · confidence medium
This is so because “[ejven the most peaceful escape cannot eliminate the potential for violent conflict when the authorities attempt to recapture the escapee.” United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001).
discussed Cited as authority (rule) United States v. Piccolo
9th Cir. · 2006 · confidence medium
Although we have previously left open the question whether the modified categorical approach applies to cases arising under the “catchall” provision, see Kelly, 422 F.3d at 895 ; United States v. Parker, 5 F.3d 1322, 1326 (9th Cir. 1993), we see no rea- son why it would not apply to that provision. 3666 UNITED STATES v. PICCOLO (the “categorical approach forecloses the conclusion” that failure to return to a halfway house would not “present a seri- ous risk of injury to another”); United States v. Bryant, 310 F.3d 550, 554 (7th Cir. 2002) (failure to report back to half- way house …
discussed Cited as authority (rule) United States v. Frazer Scott Piccolo
9th Cir. · 2006 · confidence medium
Cir.2004) (concluding under a categorical approach that “the offense of escape is a crime of violence within the meaning of ... § 4131.2(a)”), vacated and remanded, 543 U.S. 1111 , 125 S.Ct. 1056 , 160 L.Ed.2d 1045 (2005) (remanding in light of United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005)); United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002) (failure to report back to halfway house constitutes a crime of violence because “every escape involves a serious potential risk of physical injury to another”) (internal quotations omitted); United States v…
discussed Cited as authority (rule) United States v. Kenneth L. Richey
8th Cir. · 2006 · confidence medium
This court gives substantial deference to the issuing magistrate’s probable cause finding and will “uphold a judicial determination of probable cause if we believe that there was a substantial basis for concluding that a search would uncover evidence of wrongdoing.” United States v. Nation, 243 F.3d 467, 469-70 (8th Cir.2001).
cited Cited as authority (rule) United States v. Ronnie Delvon Adams
8th Cir. · 2006 · confidence medium
Id. at 1051 (relying on United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001), which held a “walkaway” escape is a crime of violence under U.S.S.G. § 4B1.2(a)).
cited Cited as authority (rule) United States v. Ronnie Delvon Adams
8th Cir. · 2006 · confidence medium
Id. at 1051 (relying on United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001), which held a “walkaway” escape is a crime of violence under U.S.S.G. § 4B1.2(a)).
discussed Cited as authority (rule) United States v. Ivory B. Mitchell Jr
8th Cir. · 2006 · confidence medium
Mitchell’s escape conviction qualifies as a crime of violence under U.S.S.G. §§ 4B1.1(a)(2) and 4B1.2 (career-offender provisions), see United States v. Nation, 243 F.3d 467, 471-72 (8th Cir.2001) (walkaway escape is crime of violence under § 4B1.2), and he has not rebutted the presumption of reasonableness that attaches to his sentence, see United States v. Lincoln, 413 F.3d 716, 717-18 (8th Cir.) (sentence that is within Guidelines range is presumptively reasonable), ce rt. denied, — U.S.-, 126 S.Ct. 840 ,-L.Ed.2d-(2005).
discussed Cited as authority (rule) United States v. Jeffrey Hershberger
8th Cir. · 2006 · confidence medium
Even if only the escape conviction is counted as one of the predicate crimes of violence, see United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (escape qualifies as crime of violence), Hershberger has another felony crime of violence to serve as the second predicate crime of violence, namely, a 1996 conviction for operating a vehicle without the owner’s consent, for which he was sentenced to 2 years imprisonment.
discussed Cited as authority (rule) United States v. Larry Edward Stead (2×)
8th Cir. · 2006 · confidence medium
Our panel is not at liberty to overturn the precedent set in United States v. Nation, 243 F.3d 467, 472-73 (8th Cir. 2001).
cited Cited as authority (rule) United States v. Merwyn L. Levering
8th Cir. · 2005 · confidence medium
In United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001), we held “every escape, even a so-called ‘walkaway’ escape, involves a potential risk of injury to others....
cited Cited as authority (rule) United States v. Merwyn Levering
8th Cir. · 2005 · confidence medium
In United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001), we -6- held “every escape, even a so-called ‘walkaway’ escape, involves a potential risk of injury to others. . . .
discussed Cited as authority (rule) United States v. Marzell Deshond Turnbough
8th Cir. · 2005 · confidence medium
Turnbough challenges only one of his felony convictions upon which the district court relied: a 1995 conviction for escape. 1 Turnbough does not dispute that his conviction for escape qualifies as a crime of violence, see United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (categorizing all walkaway escapes as crimes of violence), but instead argues that Booker requires that a jury determine beyond a reasonable doubt whether his prior conviction may be categorized as a crime of violence.
discussed Cited as authority (rule) United States v. Marzell Turnbough
8th Cir. · 2005 · confidence medium
Turnbough challenges only one of his felony convictions upon which the district court relied: a 1995 conviction for escape.1 Turnbough does not dispute that his conviction for escape qualifies as a crime of violence, see United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001) (categorizing all walkaway escapes as crimes of violence), but instead argues that Booker requires that a jury determine beyond a reasonable doubt whether his prior conviction may be categorized as a crime of violence.
cited Cited as authority (rule) United States v. C. Garcia-Juarez
8th Cir. · 2005 · confidence medium
United States v. Nation, 243 F.3d 467, 473 (8th Cir. 2001) (citation omitted).
cited Cited as authority (rule) United States v. Constantino Garcia-Juarez
8th Cir. · 2005 · confidence medium
United States v. Nation, 243 F.3d 467, 473 (8th Cir.2001) (citation omitted).
cited Cited as authority (rule) United States v. Kenneth Camp
8th Cir. · 2005 · confidence medium
United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001).
cited Cited as authority (rule) United States v. Kenneth Camp
8th Cir. · 2005 · confidence medium
United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001).
discussed Cited as authority (rule) United States v. Kenneth E. Scott
8th Cir. · 2005 · signal: cf. · confidence medium
See United States v. Syslo, 303 F.3d 860, 865 (8th Cir.2002) (per curiam) (waiver of Fifth Amendment right against self-incrimination is voluntary if it is product of free and deliberate choice rather than intimidation, coercion, or deception); United States v. McClain, 171 F.3d 1168, 1170 (8th Cir.1999) (existence of probable cause to make warrantless arrest depends on whether, at moment arrest was made, *105 facts and circumstances within officer’s knowledge were sufficient for prudent man to believe defendant had committed or was committing crime); cf. United States v. Nation, 243 F.3d 46…
discussed Cited as authority (rule) United States v. Wyatt, John
7th Cir. · 2005 · confidence medium
See, e.g., United States v. Howze, 343 F.3d 919, 921-22 (7th Cir.2003); Bryant, 310 F.3d at 553-54 ; United States v. Franklin, 302 F.3d 722, 724 (7th Cir.2002); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001); see also United States v. Rosas, 401 F.3d 843, 845 (7th Cir.2005) (same definition of crime of violence for career offender adjustment and Armed Career Criminal Act).
discussed Cited as authority (rule) United States v. Moses Childs, Jr.
8th Cir. · 2005 · confidence medium
United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir. 2002) (following United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001) (holding that a “walkaway escape” was a crime of violence under U.S.S.G. § 4B1.2)).
discussed Cited as authority (rule) United States v. Moses Childs, Jr.
8th Cir. · 2005 · confidence medium
United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir. *972 2002) (following United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (holding that a “walkaway escape” was a crime of violence under U.S.S.G. § 4B1.2)).
discussed Cited as authority (rule) United States v. Timothy Jerome McCall (2×)
8th Cir. · 2005 · confidence medium
See, e.g., Sun Bear, 307 F.3d at 751-52 (holding attempted theft of an operable vehicle “involves conduct that presents a serious potential risk of physical injury to another”); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (holding “every escape, even a. so-called ‘walkaway’ escape, involves a potential risk qf injury to others,” because escape “is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so”) (quoting United States v. Gosling, 39 F.3d 1140, …
discussed Cited as authority (rule) United States v. Timothy J. McCall
8th Cir. · 2005 · confidence medium
The specific circumstances surrounding each of McCall’s DWI convictions underscore how DWI “involves conduct that presents a serious potential risk of physical injury to another.” -10- Nation, 243 F.3d 467, 472 (8th Cir. 2001) (holding “every escape, even a so-called ‘walkaway’ escape, involves a potential risk of injury to others,” because escape “is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so”) (quoting United States v. Gosling, 39 F.3d 1140, 1142 (10…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Larry Jack NATION, Appellant; United States of America, Appellant, v. Larry Jack Nation, Appellee
00-1931, 00-1941.
Court of Appeals for the Eighth Circuit.
Mar 16, 2001.
243 F.3d 467
Omar F. Greene, argued, Little Rock, AR, for appellant., Karen D. Coleman, argued, Little Rock, AR, for appellee.
Wollman, Arnold, Hansen.
Cited by 118 opinions  |  Published
WOLLMAN, Chief Judge.

Larry Jack Nation appeals from his conviction in district court for being a felon in possession of a firearm. The United States cross-appeals, contending that the district court erred in sentencing Nation. We affirm the conviction, but vacate the sentence and remand for further proceedings.

I.

During the course of a search otherwise unrelated to this case, officers of the Cle-burne County, Arkansas, sheriffs department performed a consensual search of a home occupied by Nation and owned by James Wright. During the search, officers detected the strong odor of ether, a substance commonly utilized in the production of methamphetamine. When questioned about the odor, Wright informed officers that he had been using ether to clean a carburetor in a small storage shed on the property. Wright directed the officers to the shed, which contained significant quantities of starter fluid (ether), numerous new and used coffee filters, plastic milk jugs, glassware containing a liquid and a powdery substance, and a small tank with a “purplish-green” valve. Recognizing the possible components of a methamphetamine operation, officers requested permission to search the shed. Wright denied the request, after which the officers applied for and received a warrant to search the entire premises. During a search of the house the following morning, officers discovered a firearm in Nation’s bedroom. Nation was convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and sentenced by the district court to 65 months of imprisonment and three years of supervised release.

Nation raises three claims on appeal. He argues (1) that there was no probable cause to support the issuance of the warrant; (2) that the government presented improper rebuttal evidence at trial; and (3) that there is insufficient evidence to support his conviction. The United States cross-appeals, contending that the district court erred in sentencing Nation by failing to treat his prior conviction for escape as a crime of violence.

II.

Nation first contends that the search warrant was not based on probable cause and therefore that the weapon discovered at his residence should not have been admitted into evidence. “We examine the factual findings underlying the district court’s denial of the motion to suppress for clear error and review de novo the ultimate question of whether the Fourth Amendment has been violated.” United States v. Clayton, 210 F.3d 841, 845 (8th Cir.2000) (citation omitted). Probable cause exists if there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We will uphold a judicial determination of probable[*470] cause if we believe that there was a substantial basis for concluding that a search would uncover evidence of wrongdoing. United States v. Horn, 187 F.3d 781, 785 (8th Cir.1999) (citation omitted).

Nation argues that the warrant lacked probable cause because the items in the shed were “non-contraband” and “innocuous.” He also notes that officers did not report seeing ephedrine or drain cleaner, other components often used in methamphetamine production, nor did they observe the presence of a heat source necessary to produce the drug. Further, although Nation acknowledges that the odor of an illegal substance can provide police with probable cause, United States v. Gipp, 147 F.3d 680, 685 (8th Cir.1998), he argues that the odor of ether, a non-controlled substance, cannot constitute probable cause.

In determining whether probable cause exists, we do not evaluate each piece of information independently; rather, we consider all of the facts for their cumulative meaning. United States v. Morales, 923 F.2d 621, 623-24 (8th Cir.1991). Taken together, we believe the combination of items in the shed created a fair probability that police would discover further evidence of illegal drug activity on the premises. It is beyond dispute that the individual items located in the shed could be used for legal purposes. As the Supreme Court has noted, however, “innocent behavior frequently will provide the basis for a showing of probable cause.” Gates, 462 U.S. at 243 n. 13, 103 S.Ct. 2317. “In making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Id. As the sheriff indicated in his application for the warrant, ether, coffee filters, plastic and glass containers, and pressurized containers with purplish-green residue on the valve are common to methamphetamine operations. In our view, the storage of these items together under the specific circumstances of this case raised sufficient suspicion of criminal activity to suppoi't a finding of probable cause.

Furthermore, it is irrelevant that police did not report the presence of all of the items required for methamphetamine production on the premises. Probable cause requires only that police have a substantial basis for believing that a search would uncover evidence of criminal activity, Horn, 187 F.3d at 785; it does not require that police observe every component or ingredient involved in an illegal drug operation before applying for a warrant. Cf. Morales, 923 F.2d at 624 (police are not required to “have enough evidence to justify a conviction” before making a warrantless arrest). Additionally, because the numerous items observed in the shed during the consensual search supported a finding of probable cause, we need not reach the issue of whether the odor of a legal substance alone, in this case ether, could have supported issuance of the warrant.

Second, Nation contends that the district court abused its discretion by allowing the government to present improper rebuttal testimony. Specifically, Nation challenges the testimony of one of the arresting officers that there was only one bed in the house. Nation contends this testimony should have been presented during the government’s case-in-chief and that it should have been excluded under Federal Rule of Evidence 403. We disagree.

“The function of rebuttal is to explain, repel, counteract, or disprove evidence of the adverse party.” United States v. Azure, 845 F.2d 1503, 1508 (8th Cir.1988) (citation omitted). Here, Nation presented testimony by James Wright that could have led the jury to believe that Nation did not occupy the bedroom where the gun was located and therefore was not aware of the existence of the weapon in the house. During cross-examination, Wright testified that there were beds in two rooms of the house at the time of the search.[*471] Additionally, the district court permitted Nation to introduce a videotape made eight months after his arrest that showed two beds in the house. Because the officer’s testimony that there was only one bed in the house was offered to counter this evidence, we conclude that the district court did not abuse its discretion in allowing the testimony as rebuttal. United States v. Beasley, 102 F.3d 1440, 1445 (8th Cir.1996) (standard of review). We also conclude that the district court did not abuse its discretion by refusing to exclude the evidence under Rule 403.

Third, Nation argues that there is insufficient evidence to support his conviction. Although the government must prove every element of the offense, the evidence “need not exclude every reasonable hypothesis of innocence, but simply be sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty.” United States v. Lee, 232 F.3d 653, 655 (8th Cir.2000). We view the evidence in the light most favorable to the verdict, accepting as established all reasonable inferences the evidence tends to prove. Id.

The only issue before the jury in this case was whether Nation knowingly possessed the firearm. Viewed in the fight most favorable to the verdict, the evidence introduced at trial proved that police located the firearm in an open armoire in Nation’s bedroom. The gun itself was in an open case, and numerous letters addressed to Nation were located in the room. This evidence, in addition to testimony suggesting that Nation initially asked Wright to obtain the gun, is sufficient to establish either actual or constructive possession of the firearm. To the extent that Nation urges us to reassess the credibility of witnesses at trial, we emphasize that credibility determinations are the province of the jury. United States v. Ireland, 62 F.3d 227, 230 (8th Cir.1995).

III.

On cross-appeal, the United States argues that the district court incorrectly calculated Nation’s base offense level. The court sentenced Nation pursuant to U.S.S.G. § 2K1.3, which provides for a base level of 20 “if the defendant had one prior felony conviction of either a crime of violence or a controlled substance offense,” U .S.S.G. § 2K1.3(a)(2), and a base offense level of 24 “if the defendant has had at least two prior felony convictions of either a crime of violence or a controlled substance offense,” U.S.S.G. § 2K1.3(a)(1). In 1995, Nation was convicted in Arkansas state court of second degree escape. After examining the circumstances of the escape and determining that the only individual at risk was Nation himself, the district court concluded that it was not a crime of violence. Accordingly, the court assigned Nation a base offense level of 20, resulting in a sentencing range of 63 to 78 months’ imprisonment. [1] The United States contends that under the guidelines escape is, categorically, a crime of violence and that Nation should have been assigned a base offense level of 24.

We review the district court’s interpretation and construction of the sentencing guidelines de novo. United States v. Snoddy, 139 F.3d 1224, 1227 (8th Cir.1998). The guidelines define a “crime of violence” as:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious[*472] potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a).

It is undisputed that Nation’s conviction for escape was punishable by a term of imprisonment in excess of one year and that it does not qualify as a crime of violence under U.S.S.G. § 4B1.2(a)(l). The only question here is whether the offense “involves conduct that presents a serious potential risk of physical injury to another.” In addressing this issue, the district court determined that the guidelines authorized an examination of the particular facts of Nation’s escape from the county jail. Although the court acknowledged that “generally, escape has a potential of harm to others,” it reasoned that the term “conduct” in U.S.S.G. § 4B1.2(a)(2) referred to the underlying facts of a particular offense. Accordingly, the court examined the specific circumstances of Nation’s conviction, determined that the escape posed no serious risk of physical injury to another, and concluded that the offense was not a crime of violence.

We respectfully disagree with the district court’s analysis and conclusion. Although we acknowledge that the term “conduct” in § 4B1.2(a)(2) could suggest an examination of the underlying facts of a particular offense, we note that the first application note to § 4B1.2 explains that:

[ojther offenses are included as “crimes of violence” if ... the conduct set forth (ie., expressly charged) in the count of which the defendant was convicted ... by its nature, presented a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2, comment, (n. 1). This interpretation is controlling. Stinson v. United States, 508 U.S. 36, 42, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Thus, the guidelines direct us to examine the nature of the expressly charged conduct, rather than the particulars of the defendant’s behavior, to determine whether a particular offense is a crime of violence. In a similar context, we have described this method as the “categorical approach” to defining violent criminal conduct, United States v. Stuckey, 220 F.3d 976, 985 (8th Cir.2000) (citation omitted), and have acknowledged that such an approach covers a broad range of activity. Id.

We must therefore determine whether the nature of the expressly charged conduct in this case presented a serious potential risk of physical injury to another. The record indicates that the criminal information charged that Nation “did unlawfully, being a convicted felon, on or about the 8th day of April, 1995, escape from the Cross County Jail, a correctional facility.” The issue before us, then, is whether the crime of escape, by its nature, involves a serious potential risk of physical injury to another. We conclude that it does, and accordingly we hold that escape is categorically a crime of violence as defined in U.S.S.G. § 4B1.2.

We believe that every escape, even a so-called “walkaway” escape, involves a potential risk of injury to others. As the Tenth Circuit observed, an escapee is likely to possess a “variety of supercharged emotions, and in evading those trying to recapture him, may feel threatened by police officers, ordinary citizens, or even fellow escapees.” United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.1994). Every escape, therefore, “is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so.” Id. Even the most peaceful escape cannot eliminate the potential for violent conflict when the authorities attempt to recapture the escapee. Given this reality, we have no difficulty in concluding that escape qualifies as a crime of violence pursuant to U.S.S.G. § 4B1.2. We note that the Fourth, Fifth, Sixth, and Tenth Circuits have reached similar conclusions. United States v. Hairston, 71 F.3d 115, 118 (4th Cir.1995) (escape is a crime of violence for the purposes of the Armed Career Crimi[*473] nal Act); United States v. Ruiz, 180 F.3d 675, 676 (5th Cir.1999) (walkaway escape is a crime of violence pursuant to U.S.S.G. § 4B1.2); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999) (guidelines prescribe a categorical approach in defining a crime of violence for purposes of career offender status); Gosling, 39 F.3d at 1142-1143 (escape is a crime of violence for purposes of U.S.S.G. § 4B1.2).

We affirm the conviction, vacate the sentence, and remand for further proceedings not inconsistent with this opinion.

1

. Nation has a criminal history category of V and a prior conviction for burglary of a commercial building, a crime of violence pursuant to United States v. Hascall, 76 F.3d 902 (8th Cir.1996).