United States v. Bryant, Donald ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2199
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD T. BRYANT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 01 CR 156—Rudy Lozano, Judge.
____________
ARGUED SEPTEMBER 20, 2002—DECIDED NOVEMBER 13, 2002
____________
Before EASTERBROOK, RIPPLE, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Appellant Donald Bryant pleaded
guilty to four counts of making false statements in connec-
tion with the transfers of firearms in violation of 18 U.S.C.
§ 922(a)(6). At his sentencing, the district court determined
that Bryant was subject to an elevated base offense level
under the federal sentencing guidelines due to his prior
conviction for the crime of escape, which the district court
found was a “crime of violence” under the guidelines. In this
appeal, Bryant objects to the use of the increased base
offense level, arguing that his previous conviction for escape
cannot be characterized as a “crime of violence.” Specifi-
2 No. 02-2199
cally, he argues that the particular circumstances of his
“escape” from a halfway house presented no risk of physical
injury to anyone, and therefore cannot be considered a
“crime of violence.” Because we believe that the crime of
escape, as a category, “presents a serious potential risk of
physical injury to another” and thus qualifies as a “crime of
violence” under the federal sentencing guidelines, we affirm
the sentence imposed by the district court.
I. History
On December 13, 2001, Donald Bryant pleaded guilty to
four counts of making false statements and using false
identification in connection with certain firearms transfers
in violation of 18 U.S.C. § 922(a)(6).1 Bryant’s Presentence
Investigation Report (“PIR”) recommended that his base
offense level be elevated to 20, rather than the typical base
offense level of 14 for “prohibited persons” convicted under
§ 922(a)(6), reasoning that the increase was warranted as
Bryant had previously been convicted of a “crime of vio-
lence.” See U.S.S.G. § 2K2.1(a)(4)(A) (2002).
In April 1997, Bryant had been convicted of the crime of
escape, which the PIR recognized as a “crime of violence.”
While the precise details of this previous escape conviction
1
Section 922(a) provides in relevant part:
“It shall be unlawful . . . for any person in connection with the
acquisition or attempted acquisition of any firearm or am-
munition from a licensed importer, licensed manufacturer,
licensed dealer, or licensed collector, knowingly to make any
false or fictitious oral or written statement or to furnish or
exhibit any false, fictitious, or misrepresented identification,
intended or likely to deceive such importer, manufacturer,
dealer, or collector with respect to any fact material to the
lawfulness of the sale or other disposition of such firearm or
ammunition under the provisions of this chapter. . . .”
18 U.S.C. § 922(a)(6) (2002).
No. 02-2199 3
are not clear on this record, it appears that Bryant had
been committed to Bradley House, a Community Correc-
tions Center or halfway house, in Michigan City, Indiana,
after violating the terms of his probation. On April 8, 1997,
Bryant failed to return to this facility after having been
granted permission to be temporarily absent for work pur-
poses; he remained in escape status for approximately 10
days until April 17, 1997. Upon re-apprehension, Bryant
was charged with and pleaded guilty to violating the
federal scape statute, 18 U.S.C. § 751(a)2; he was sen-
tenced to 15 months imprisonment and 24 months of su-
pervised release.
At his sentencing for the four counts at issue in the in-
stant case, Bryant objected to the classification of this
previous conviction for escape as a “crime of violence.” The
sentencing court disagreed, finding that an escape convic-
tion qualified as a crime of violence as that term is used
under the sentencing guidelines. Bryant was accordingly
sentenced to 78 months imprisonment and now appeals this
sentence.
II. Analysis
We review a sentencing court’s factual determinations for
clear error, while interpretations of the guidelines are re-
viewed de novo. United States v. Owolabi, 69 F.3d 156, 162
(7th Cir. 1995). Whether an offense is a “crime of violence”
2
Section 751(a) provides in pertinent part:
“Whoever escapes or attempts to escape . . . from any institu-
tion or facility in which he is confined . . . by virtue of any
process issued under the laws of the United States by any
court, judge, or commissioner [United States magistrate
judge] . . . shall . . . be fined under this title or imprisoned not
more than five years, or both. . . .”
18 U.S.C. § 751(a) (2002).
4 No. 02-2199
for purposes of sentencing is a question of law that this
Court reviews de novo. United States v. Fife, 81 F.3d 62, 63
(7th Cir. 1996).
For crimes involving prohibited firearms transactions,
including the crimes for which Bryant was sentenced in this
case, the federal sentencing guidelines provide for varying
base offense levels, depending on the circumstances of both
the offense and the offender. See U.S.S.G. § 2K2.1. For
example, if the defendant was a “prohibited person” at the
time the offense was committed, as was the case with Bry-
ant, the guidelines provide for a base offense level of 14.3
See id. § 2K2.1(a)(6). If, however, the defendant “committed
any part of the instant offense subsequent to sustaining one
felony conviction of . . . a crime of violence,” the guidelines
provide for an elevated base offense level of 20. See id.
§ 2K2.1(a)(4)(A).
The commentary accompanying § 2K2.1 notes that “crime
of violence” has the meaning given that term in § 4B1.2(a)
of the guidelines and application note 1 of the commentary
for that section. See id. § 2K2.1 cmt. n. 5. Section 4B1.2(a)
defines a “crime of violence” as
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—
(1) has an element the use, attempted use, or threat-
ened use of physical force against the person of
another, or
(2) is burglary of a dwelling, arson, or extortion, in-
volves the use of explosives, or otherwise involves
3
The sentencing guidelines define “prohibited person” by ref-
erence to the definition given that term in 18 U.S.C. § 922(g) and
§ 922(n). See U.S.S.G. § 2K2.1 cmt. n. 6. Bryant was a “prohibited
person” as a convicted felon, pursuant to the definition in 18
U.S.C. § 922(g)(1).
No. 02-2199 5
conduct that presents a serious potential risk of
physical injury to another.
Id. § 4B1.2(a) (emphasis added). The commentary for
§ 4B1.2(a) notes that “crime of violence” includes any of-
fense for which “the conduct set forth (i.e., expressly
charged) in the count of which the defendant was con-
victed . . . by its nature, presented a serious potential risk
of physical injury to another.” Id. § 4B1.2 cmt. n. 1.
In United States v. Franklin, this Court held that the
crime of escape is a crime of violence for purposes of 18
U.S.C. § 924(e)—a provision with language identical to that
of § 4B1.2(a) of the sentencing guidelines—because escape
involves a “serious potential risk of physical injury to
another.” 302 F.3d 722, 725 (7th Cir. 2002) (quotation omit-
ted). We said that in making such a risk determination,
“ ‘ the benchmark should be the possibility of violent con-
frontation, not whether one can postulate a nonconfron-
tational hypothetical scenario.’ ” Id. at 723 (quoting United
States v. Davis, 16 F.3d 212, 217 (7th Cir. 1994)).
In Franklin, we cited favorably to the decisions of other
circuits that had recognized the crime of escape as a crime
of violence, including the Tenth Circuit, which noted that
“[e]very escape scenario is a powder keg, which may or may
not explode into violence and result in physical injury to
someone at any given time, but which always has the
serious potential to do so.” Id. at 724 (quoting United States
v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994)); see also
United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir.
2002) (noting every escape, even where the prisoner merely
walks away, involves a potential risk of injury to others);
United States v. Houston, 187 F.3d 593, 594-95 (6th Cir.
1999) (holding that escape from county workhouse or jail is
a violent felony because of potential risk of injury); United
States v. Hairston, 71 F.3d 115, 118 (4th Cir. 1995) (finding
escape by stealth “inherently” presents serious potential
risk of physical injury).
6 No. 02-2199
Bryant asks this Court to refine our decision in Franklin
by holding that not every crime of escape amounts to a
crime of violence. He urges this Court to instead follow a
fact-specific approach when determining if a particular
crime of escape should be categorized as a crime of violence.
Specifically, he argues that the type of escape with which he
was charged—failure to return to a halfway house after
being absent on a work release—is more appropriately
thought of as a “failure to return” than as an “escape.” Ac-
cording to his reasoning, a failure to return to a halfway
house after being absent with permission presents so much
less of a risk of violence that it must be considered different
and distinct from a “bust-out” or “slither-away” type of
escape.
Our decision in Franklin, however, forecloses that argu-
ment. In that case, we rejected the defendant’s argument
that escape convictions “cannot be categorically classified
as violent felonies because some prisoners escape without
causing harm to others.” Franklin, 302 F.3d at 724. We
noted that “[t]o determine whether a particular offense is
a violent felony, sentencing courts take a categorical ap-
proach, looking to the statutory elements of the crime,
rather than the particular facts of the underlying convic-
tion.” Id. at 723 (citations omitted).
Bryant’s argument is also inconsistent with the commen-
tary to the sentencing guidelines provision defining a
“crime of violence.” The commentary specifically notes that
it is “the conduct set forth (i.e., expressly charged) in the
count of which the defendant was convicted”—not the
particular facts of the defendant’s situation—that is rel-
evant to the question of whether an offense is a “crime of
violence.” U.S.S.G. § 4B1.2 cmt. n.1. In addition, Bryant’s
approach risks opening the courts to countless arguments
as to whether a crime is actually an “escape” or merely a
“failure to return.” In a similar context, the Supreme Court
rejected such a fact-bound, case-by-case approach, noting
No. 02-2199 7
the “practical difficulties and potential unfairness of a fac-
tual approach.” Taylor v. United States, 495 U.S. 575, 601
(1990) (embracing a categorical approach to determining
whether an offense qualifies as a “violent felony” under 18
U.S.C. § 924(e)). We believe that treating the crime of
escape as a category avoids these difficult line-drawing
problems.
III. Conclusion
Because every escape involves “a serious potential risk of
physical injury to another,” we hold that the crime of es-
cape, as a category, is a crime of violence for purposes of the
federal sentencing guidelines. Bryant’s previous escape
conviction, resulting from his failure to report back to a
halfway house, thus constitutes a crime of violence for
purposes of his sentencing. The sentence imposed by the
district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-13-02