United States v. Key ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4818
JERRY LEE KEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-97-33)
Submitted: March 24, 1998
Decided: April 22, 1998
Before HAMILTON, LUTTIG, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Matthew A. Victor, Charleston, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, Stephen W. Haynie, Assis-
tant United States Attorney, Charleston, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Jerry Lee Key was convicted pursuant to his conditional guilty plea
to possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1) (1994), and was sentenced as an armed career
criminal. He appeals his sentence arguing that he did not have three
prior convictions that qualified as violent felonies for purposes of sen-
tence enhancement under the Armed Career Criminal Act of 1984
("ACCA"), 18 U.S.C.A. § 924(e) (West Supp. 1998). Because we
hold Key's previous conviction for felony escape constitutes a "vio-
lent felony," and therefore can serve as a third predicate offense for
purposes of sentence enhancement under the ACCA, we affirm Key's
sentence.
The facts are not in dispute. A grand jury indicted Key for posses-
sion of a firearm by a convicted felon. The indictment further alleged
a violation of the ACCA on the basis that Key had been previously
convicted of three violent felonies. The named prior convictions were
two counts of unlawful wounding1 and two separate instances of fel-
ony escape under W. Va. Code § 62-8-1 (1997). Key objected to the
ACCA charge on the grounds that the first conviction for felony
escape could not be considered a predicate offense for purposes of the
ACCA because it was, under the circumstances, not a"violent felony."2
At sentencing the court rejected Key's argument and sentenced Key
under the ACCA to 210 months' imprisonment.
The issue before this court is whether Key's first conviction for fel-
ony escape under W. Va. Code § 62-8-1 constitutes a "violent felony"
under the ACCA. A defendant is eligible for an enhancement in his
sentence from the normal ten year maximum under§ 924(a)(2) to a
mandatory minimum of fifteen years to life if he"violates section
922(g) . . . and has three previous convictions . . . for a violent felony
or a serious drug offense, or both, committed on occasions different
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1 Both parties stipulated at sentencing that these two convictions would
constitute one "prior violent felony."
2 Key concedes that the other two convictions qualify as predicate
offenses under the ACCA.
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from one another." 18 U.S.C.A. § 924(e)(1) (West Supp. 1998).
Under the ACCA, "violent felony" means:
any crime punishable by imprisonment for a term exceeding
one year . . . that--
(i) has as an element the use, attempted use, or
threatened use of physical force against the person
of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
to another . . . .
18 U.S.C.A. § 924(e)(2)(B) (West Supp. 1998).
In United States v. Hairston, 71 F.3d 115, 117 (4th Cir. 1995), cert.
denied, ___ U.S. ___, 64 U.S.L.W. 3763 (U.S. May 13, 1996) (No.
95-8582), we held that felony escape from custody under North Caro-
lina law "involves conduct that presents a serious potential risk of
physical injury to another," and therefore such conviction could serve
as a predicate violent felony for sentencing under the ACCA. In
deciding whether felony escape under North Carolina law constitutes
a "violent felony" in Hairston, we stated that the conviction, to satisfy
the "otherwise" clause of § 924(e)(2)(B)(ii), must be "`determined by
a categorical approach, whereby the court looks only at the fact of
conviction and the statutory definition of the offense, and not to the
underlying facts of a specific conviction.'" Id. (quoting United States
v. Thomas, 2 F.3d 79, 80 (4th Cir. 1993)). A few months later, in
United States v. Dickerson, 77 F.3d 774, 777 (4th Cir.), cert. denied,
___ U.S. ___, 65 U.S.L.W. 3259 (U.S. Oct. 7, 1996) (No. 95-9207),
we applied Hairston in determining that the crime of felony attempted
escape from custody presented a serious potential risk of physical
injury to another and as such qualified as a "crime of violence" under
the Career Offender provision of the Sentencing Guidelines. In that
decision, we restated that the analysis focuses on the conviction in the
abstract, i.e., whether the nature of the crime involves a serious
potential risk of physical injury to another. Id.; see also United States
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v. NJB, 104 F.3d 630, 637-38 (4th Cir.), cert. denied, 65 U.S.L.W.
3754 (U.S. May 12, 1997) (No. 96-8663).
On appeal, Key contends that his first conviction for felony escape
under West Virginia law was based on a failure to return to the work
release center from a furlough, and by its nature cannot be considered
a "violent felony." He posits that a mere failure to return cannot be
considered as "violent" an offense as an overt escape from secured
premises. He further directs the court's attention to the Hairston deci-
sion in which this court specifically declined to consider at that time
whether a conviction for failure to return from prison furlough could
be considered a "violent felony" for purposes of the ACCA. Hairston,
71 F.3d at 117.
Under § 62-8-1 of the Code of West Virginia, the section under
which Key was convicted, the elements of felony escape are the fol-
lowing: (1) imprisonment or otherwise under the custody of the com-
missioner of corrections; and (2) killing, wounding, or inflicting other
bodily injury upon an officer or guard of the penitentiary or medium
security prison; or (3) breaking, cutting, or injuring any building, fix-
ture or fastening of the prison, for the purposes of escaping or aiding
any other convict to escape from the prison or rendering the premises
less secure as a place of confinement; or (4) making, procuring,
secreting, or possessing, any instrument, or other such object for such
purpose, or with intent to kill, wound, or inflict bodily injury as afore-
said; or (5) resisting the lawful authority of an officer or guard of the
penitentiary or premises for such purpose or with such intent. See W.
Va. Code § 62-8-1 (1997). In Craigo v. Legursky, the Supreme Court
of Appeals of West Virginia held that an inmate who is on work
release remains in the custody of the Department of Corrections, and
if such inmate fails to return to the assigned center, he is guilty of fel-
ony escape. 398 S.E.2d 160, 161-62 (W. Va. 1990).
To decide whether a given offense proscribes generic conduct with
the potential for serious physical injury to another, we need to look
at the fact of conviction and the statutory definition of the offense,
and not to the underlying facts. See Hairston , 71 F.3d at 117. Upon
reviewing the statutory definition of felony escape under W. Va. Code
§ 62-8-1, we conclude the offense of felony escape under that statute
involves conduct that presents a serious potential risk of physical
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injury to another, and thus constitutes a "violent felony" for purposes
of the ACCA. Key does not argue in his brief that the statutory defini-
tion does not set out conduct presenting a serious risk of physical
injury. Rather, he asks this court to consider the particular facts of his
offense in considering whether his prior felony escape conviction
constituted a "violent felony." Again, our holding in Hairston pre-
cludes such consideration.
Accordingly, we affirm Key's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court, and oral argument would not
aid the decisional process.
AFFIRMED
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