Failure to Return "Escape" Not A Career Offender Predicate

U.S. v. Pappan, 07-8020 (2/27/09) (unpub'd) - Following the Supreme Court's decision in Chambers, which was an ACCA statutory case, the 10th holds a failure-to-return escape is not a "crime of violence" for career offender guideline purposes. The 10th refuses to remand the case to a different judge, despite the judge's problematic reference to the defendant's ethnic heritage. The district court noted that the defendant's drug distribution had enabled non-natives to have access to the defendant's tribal community and then said: "that has to be taken into account and that's why a sentence within the guideline range is appropriate." The 10th concludes the judge was focusing on the defendant's conduct, not his heritage. So, that "fleeting" reference to ethnic heritage was not a reason to disqualify the judge on remand.