United States v. Mitchell ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4164
JEFFREY MITCHELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-99-71-F)
Submitted: September 29, 2000
Decided: October 13, 2000
Before WILKINS and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Jennifer May-Parker, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Jeffrey Mitchell pled guilty to escape, see 18 U.S.C. § 751 (1994),
and was sentenced as a career offender* to a term of thirty-seven
months imprisonment, to be served consecutive to the sentence he
was then serving for a federal drug conviction. Mitchell contends that
the district court erred in finding that his escape was a crime of vio-
lence. We affirm.
A defendant is a career offender if (1) he was at least eighteen
years old when he committed the instant offense, (2) the instant
offense is either a crime of violence or a drug offense, and (3) the
defendant has at least two prior felony convictions for either a crime
of violence or a drug offense. A "crime of violence" is defined in
USSG § 4B1.2(a) as a felony 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, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential
risk of physical injury to another.
The commentary identifies a number of offenses as crimes of vio-
lence and adds that other offenses are crimes of violence if:
(A) that offense has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or (B) the conduct set forth (i.e., expressly charged)
in the count of which the defendant was convicted . . . by
its nature, presented a serious potential risk of physical
injury to another.
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*U.S. Sentencing Guidelines Manual § 4B1.1 (1998).
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USSG § 4B1.2, comment. (n.1).
The district court held that, even though Mitchell walked away
from a non-secure facility, his escape was by its nature a crime of vio-
lence. The court relied on United States v. Dickerson, 77 F.3d 774(4th Cir. 1996) (holding that attempted escape from custody is, in the
abstract, a crime of violence). Mitchell argues on appeal that Dicker-
son should be limited to its facts and should not preclude an inquiry
into the particular facts underlying the escape. He suggests that
escape offenses should be divided into two categories: violent and
non-violent. We find that either approach is foreclosed by Dickerson.
The guidelines "prohibit `a wideranging inquiry into the specific
circumstances surrounding a conviction' in determining whether an
offense is a crime of violence." United States v. Martin, 215 F.3d 470,
472-73 (4th Cir. 2000) (quoting United States v. Johnson, 953 F.2d
110, 113 (4th Cir. 1992)). If an offense is not identified as a crime of
violence in USSG § 4B1.2 or its commentary, the court must decide
whether the offense has as an element the use, attempted use, or
threatened use of physical force. See Dickerson , 77 F.3d at 776.
Escape in violation of 18 U.S.C. § 751(a) (1994) does not have as an
element the use, attempted use or threatened use of force against
another. See Dickerson, 77 F.3d at 776.
If the prior offense is one of a limited class of offenses where the
definition is ambiguous and proscribes both violent and non-violent
conduct, then the court should look to the charging papers and jury
instructions to decide whether the offense is a crime of violence. See
Martin, 215 F.3d at 472 n.2 (citing United States v. Coleman, 158
F.3d 199, 202 (4th Cir. 1998) (en banc)); United States v. Kirksey,
138 F.3d 120, 124 (4th Cir.), cert. denied, 525 U.S. 849 (1998);
United States v. Cook, 26 F.3d 507, 509 (4th Cir. 1994). Mitchell
argues that such ambiguity exists with respect to the offense of
escape. However, the elements of § 751 do not indicate that it could
be committed in a violent or non-violent manner, as is the case with
the state statutes this court examined in this context in Coleman and
Kirksey.
If the foregoing inquiry does not establish that the offense is a
crime of violence, the sentencing court must determine whether it
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"otherwise involves conduct that presents a serious potential risk of
physical injury to another" under § 4B1.2(a)(2). Martin, 215 F.3d at
472. In making this determination, the court must (1) consider only
the facts charged in the indictment and, (2) "if that effort is unavailing
. . . consider whether the offense of conviction is a crime of violence
in the abstract." Id. at 473 (following Dickerson). With respect to
escape and attempted escape, this inquiry has been resolved. See
Dickerson, 77 F.3d at 777 (holding that attempted escape from cus-
tody is a crime of violence); United States v. Hairston, 71 F.3d 115,
118 (4th Cir. 1995) (holding that escape from custody, even by
stealth, is a violent felony because there is an inherent risk that the
escapee may use physical force if interrupted). See also United States
v. Ruiz, 180 F.3d 675, 676-77 & n.7 (5th Cir. 1999) (escape from fed-
eral prison camp); United States v. Harris, 165 F.3d 1062, 1068 (6th
Cir. 1999) (escape from county workhouse). It is thus clear that the
district court correctly determined that Mitchell's escape was a crime
of violence.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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