United States v. Dilks

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 1, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-50566
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUEBEN DILKS, also known as Ruben Dilks,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
No. 6:03-CR-185-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Rueben Dilks appeals his jury conviction and the sentence
imposed for possession of a firearm by a convicted felon in viola-
tion of 18 U.S.C. § 922(g)(1). Dilks argues that the evidence was
insufficient to support his conviction. Because Dilks did not
renew his motion for a judgment of acquittal at the close of all of

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the evidence, review is limited to determining whether there was “a
manifest miscarriage of justice.” See United States v. Green, 293
F.3d 886, 895 (5th Cir. 2002).
“In order to convict one for felon in possession of a firearm,
the government must prove that the defendant (1) has been convicted
of a felony; (2) possessed a firearm in or affecting interstate
commerce; and (3) knew that he was in possession of the firearm.”
United States v. Ybarra, 70 F.3d 362, 365 (5th Cir. 1995). The
parties stipulated that Dilks was a convicted felon. Where the
place of a weapon’s discovery is jointly occupied, constructive
possession can be found so long as there is some evidence “that the
defendant had knowledge of and access to the weapon or contraband.”
United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993).
A review of the evidence presented at trial indicates that
the record is not “devoid of evidence” of Dilks’s guilt or “so ten-
uous that a conviction is shocking.” See United States v. Avants,
367 F.3d 433, 449 (5th Cir. 2004). Therefore, Dilks has not shown
that his conviction would result in “a manifest miscarriage of
justice.” See Green, 293 F.3d at 895.
Dilks argues that the evidence is insufficient to support the
district court’s determination that he had three prior violent
felony convictions under 18 U.S.C. § 924(e). He does not contend
that the government failed to present sufficient evidence to
establish that he had 1990 convictions for burglary of a building
and injury to a child; instead, he urges that his prior escape

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1 See United States v. Maddox, 388 F.3d 1356, 1368-69 (10th Cir.
2004) (holding that escape constitutes violent felony under § 924(e)),
cert. denied, 125 S. Ct. 1689 (2005); United States v. Wardrick, 350
F.3d 446, 455 (4th Cir. 2003) (stating that escape constitutes violent
felony because of risk of injury to others), cert. denied, 541 U.S. 966
(2004); United States v. Franklin, 302 F.3d 722, 723-25 (7th Cir. 2002)
(deciding that escape qualifies as violent felony because it involves
“serious potential risk of physical injury to another”); United States
v. Jackson, 301 F.3d 59, 61-63 (2d Cir. 2002) (concluding that escape
is violent felony because “escape invites pursuit; and the pursuit, con-
frontation, and recapture of the escapee entail serious risks of
physical injury to law enforcement officers and the public.”); United
States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir. 2002) (same); United
States v. Houston, 187 F.3d 593, 594-95 (6th Cir. 1999) (same).
2 We need not address Dilks’s argument that the district court
erred in considering his 1969 and 1972 convictions as a basis for
the sentencing enhancement under § 924(e).
conviction is not a violent felony under § 924(e). We have held
that escape is a crime of violence under U.S.S.G. § 4B1.2(a), even
if the escape did not involve the use of force. United States v.
Ruiz, 180 F.3d 675, 676 (5th Cir. 1999). Several other circuits
have held that escape is a violent felony within the meaning of
§ 924(e).1
We adopt this approach and conclude that escape is a violent
felony under § 924(e). Therefore, the district court did not err
in determining that there was sufficient evidence to establish that
Dilks had three prior violent felony convictions under § 924(e).2
Dilks argues that his sentence should be vacated in view of
Blakely v. Washington, 124 S. Ct. 2531 (2004). Because he did not
raise this issue in the district court, review is limited to plain
error. See United States v. Vonn, 535 U.S. 55, 59 (2002). Dilks
must show (1) an error; (2) that is clear or plain; (3) that
affected his substantial rights; and (4) that seriously affected

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the fairness, integrity, or public reputation of his judicial
proceedings. See United States v. Olano, 507 U.S. 725, 732-35
(1993).
The district court enhanced Dilks’s sentence under § 924(e)
because he had at least three prior violent felony convictions as
defined by § 924(e)(1) and (2)(B)(i) and (ii), including a 1990
conviction for burglary of a building, a 1990 conviction for injury
to a child, and a conviction for escape. Under § 924(e), the
mandatory minimum sentence was 15 years or 180 months of
imprisonment, and the statutory maximum sentence was life
imprisonment. Dilks was sentenced to 188 months.
Under U.S.S.G. § 4B1.4, his offense level was increased to 33
because he had prior convictions for robbery, burglary, burglary of
a building, injury to a child, and escape; he was therefore an
armed career criminal. His criminal history category was IV.
Based on an offense level of 33 and a criminal history category of
IV, the applicable sentencing range was 188 to 235 months. Because
Dilks was subject to the mandatory minimum sentence of 15 years, he
has not shown that his sentence would likely have been different if
the judge had sentenced him under the Booker advisory regime;
therefore, he has not shown plain error. See United States v.
Mares, 402 F.3d 511, 521-22 (5th Cir. 2005), petition for cert.
filed (U.S. Mar. 31, 2005) (No. 04-9517).
AFFIRMED.

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