Filing 920060419


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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRAZER SCOTT PICCOLO, Defendant-Appellant. No. 04-10577 D.C. No. CR-04-00083LRH/PAL District of Nevada, Las Vegas ORDER Filed April 20, 2006 Before: Betty B. Fletcher, John R. Gibson,* and Marsha S. Berzon, Circuit Judges. ORDER The opinion filed April 3, 2006, slip op. 3655, is hereby amended as follows: 1. Third line of slip op. 3666, before "United States v. Bryant" add the following: "United States v. Thomas, 361 F.3d 653, 657-60 (D.C. Cir. 2004) (concluding under a categorical approach that "the offense of escape is a crime of violence within the meaning of . . . 4B1.2(a)"), vacated and remanded, 543 U.S. 1111 (2005) (remanding in light of United States v. Booker, 543 U.S. 220 (2005));" *The Honorable John R. Gibson, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation. 4415 4416 UNITED STATES v. PICCOLO 2. Fourth line from the bottom of slip op. 3666, delete "Our view is that the powder-keg "approach taken by the other circuits proves too much." United States v. Thomas, 333 F.3d 280, 282 (D.C. Cir. 2003)." Add "In our view, the powder-keg rationale adopted by other circuits proves too much." Third line of slip op. 3667, delete "See Thomas, 333 F.3d at 283 (distinguishing the case of "[a] prisoner not returning to a halfway house," which "may not inherently create a risk of harm to others");" Add: "See". 3. PRINTED FOR ADMINISTRATIVE OFFICE--U.S. COURTS BY THOMSON/WEST--SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted 2006 Thomson/West.

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