At page 554 Classifying escape as a crime of violence for sentencing24 citing casesfailure to report back to halfway house constitutes a crime of violence because “every escape involves a serious potential risk of physical injury to another
- Bernard Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013).published United States v. Bryant, 310 F.3d 550, 554 (7th Cir. 2002).
- United States v. Capler, 636 F.3d 321 (7th Cir. 2011).publishedIn Wallace we cited two escape cases, United States v. Franklin, 302 F.3d 722, 725 (7th Cir.2002), and United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002), as examples of categorically violent offenses that encompass potentially harm…
- Wyatt v. United States, 574 F.3d 455 (7th Cir. 2009).published Under United States v. Bryant, 310 F.3d 550, 554 (2002), which was the controlling case law in this circuit at the time of Wyatt’s sentencing, the crime of escape was categorically a crime of violence under the Guidelines.
- United States v. Shipp, 628 F. Supp. 2d 1312 (N.D. Okla. 2008).publishedSee, e.g., United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States v. Dickerson, 77 F.3d 774, 777 (4th Cir. 1996); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.1…
- United States v. Canfield, 273 F. App'x 565 (7th Cir. 2008).unpublished See Howze, 343 F.3d at 922 ; United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002).
- United States v. Anthony Cruz, 254 F. App'x 550 (7th Cir. 2007).unpublishedSee, e.g., United States v. Chambers, 473 F.3d 724, 726 (7th Cir.2007); Golden, 466 F.3d at 614-15 ; United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002); United States v. Franklin, 302 F.3d 722, 725 (7th Cir.2002).
- United States v. Jason Daniel Taylor, 489 F.3d 1112 (11th Cir. 2007).published (failure to return after work-release)
- United States v. Bruce Hunt, 224 F. App'x 531 (7th Cir. 2007).unpublished(failure to return to a halfway house is a crime of violence under U.S.S.G. § 4B1.2(a)(2))
- United States v. Mathias, No. 06-4109 (4th Cir. Apr. 13, 2007).publishedSee United States v. Winn, 364 F.3d 7, 12 (1st Cir. 2004) (failure to return to a halfway house is a crime of violence under USSG § 4B1.2); United States v. Bryant, 310 F.3d 550, 554 (7th Cir. 2002) (same); UNITED STATES v. MATHIAS 7 B.
- United States v. Linwood Charles Mathias, 482 F.3d 743 (4th Cir. 2007).publishedSee United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004) (failure to return to a halfway house is a crime of violence under USSG § 4B1.2); United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002) (same); United States v. Turner, 285 F.3d…
Show 10 more citing cases
- United States v. Minor R. Rivera, 463 F.3d 598 (7th Cir. 2006).published (holding that, where appellant failed to return to halfway house, the “crime of escape, as a category, is a crime of violence for purposes of the federal sentencing *601 guidelines)
- Rhodes v. United States, 443 F. Supp. 2d 893 (N.D. Ohio 2006).publishedSee United States v. Piccolo, 441 F.3d 1084, 1090 (9th Cir.2006); United States v. Thomas, 333 F.3d 280, 283 (D.C.Cir.2003); United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002).
- United States v. Frazer Scott Piccolo, 441 F.3d 1084 (9th Cir. 2006).published (failure to report back to halfway house constitutes a crime of violence because “every escape involves a serious potential risk of physical injury to another)
- United States v. Hawkins, Bernard, 136 F. App'x 922 (7th Cir. 2005).unpublishedWe have held that the crime of escape, “as a category, is a crime of violence for the purposes of the federal sentencing guidelines.” United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002).
- United States v. Pettigrew, 133 F. App'x 94 (5th Cir. 2005).unpublishedSee, e.g., United States v. Winn, 364 F.3d 7, 10-11 (1st Cir.2004) (citing cases); United States v. Thomas, 361 F.3d 653, 657-60 (D.C.Cir.2004); United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002). 2 .
- United States v. Winn, 364 F.3d 7 (1st Cir. 2004).published(failure to report back to halfway house constitutes a crime of violence because “every escape involves a serious potential risk of physical injury to another)
- United States v. Smith, 79 F. App'x 189 (7th Cir. 2003).unpublishedCounsel argued that, although we have categorized any escape from prison as a “crime of violence” under the guidelines, see United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002), the nonviolent nature of this particular case provided a…
- United States v. Wyatt, 672 F.3d 519 (7th Cir. 2012).publishedSee United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002).
- United States v. Hawkins, Bernard, 168 F. App'x 98 (7th Cir. 2006).unpublished
- United States v. Guzman, 84 F. App'x 675 (7th Cir. 2003).unpublished
At page 553 Defining "crime of violence" under sentencing guidelines20 citing casesholding that a failure to report was a crime of violence under the Guidelines
- Bernard Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013).published United States v. Bryant, 310 F.3d 550, 554 (7th Cir. 2002).
- United States v. Hart, 578 F.3d 674 (7th Cir. 2009).published The Court reversed our earlier decision and held that a conviction 1 See United States v. Chambers, 473 F.3d 724 (7th Cir. 2007); United States v. Golden, 466 F.3d 612, 614-15 (7th Cir. 2006); United States v. Bryant, 310 F.3d 550, 553-54…
- United States v. Franco-Fernandez, 511 F.3d 768 (7th Cir. 2008).published The relevant definition in both cases required a “serious potential risk of physical injury.” United States v. Bryant, 310 F.3d 550, 553 (7th Cir.2002); United States v. Wallace, 326 F.3d 881, 886 (7th Cir.2003).
- United States v. Bates, Clifford, 231 F. App'x 498 (7th Cir. 2007).unpublishedUnited States v. Bryant, 310 F.3d 550, 553-54 (7th Cir.2002); United States v. Franklin, 302 F.3d 722 , (7th Cir.2002) (“Even the most peaceful escape cannot eliminate the potential for violent conflict when the authorities attempt to reca…
- United States v. Golden, Reggie, 466 F.3d 612 (7th Cir. 2006).published See, e.g., United States v. Howze, 343 F.3d 919, 921 (7th Cir.2003) (finding that statute which proscribed “knowingly flee[ing] or attempt[ing] to elude any traffic officer by willful or wanton disregard of such signal so as to interfere w…
- United States v. Fernandez, 436 F. Supp. 2d 983 (E.D. Wis. 2006).publishedFor instance, offenses such as fleeing, walk-away escape and car theft can qualify as “crimes of violence” under the guideline, see, e.g., Howze, 343 F.3d at 921-22 ; United States v. Bryant, 310 F.3d 550, 553 (7th Cir.2002); United States…
- United States v. Ronnie Delvon Adams, 442 F.3d 645 (8th Cir. 2006).published (holding same with regard to “failure to return to a halfway house after being absent with permission)
- United States v. Anglin, 169 F. App'x 971 (6th Cir. 2006).unpublishedSee United States v. Ruiz, 180 F.3d 675, 677 (5th Cir.1999); United States v. Bryant, 310 F.3d 550, 553-54 (7th Cir. 2002).
- United States v. Rivera, 127 F. App'x 543 (2d Cir. 2005).unpublishedSee, e.g., United States v. Thomas, 361 F.3d 653, 660 (D.C.Cir.2004), vacated on other grounds; United States v. Bryant, 310 F.3d 550, 553-54 (7th Cir. 2002); United States v. Turner, 285 F.3d 909, 915 (10th Cir.2002).
- United States v. Willis, 325 F. Supp. 2d 908 (E.D. Wis. 2004).publishedHis offense resulted from inaction rather than conduct “that presented] a serious potential risk of physical injury to another.” 2 The PSR relied on cases holding that escape qualifies as a crime of violence. *910 E.g., United States v. Br…
Show 5 more citing cases
- United States v. Lawrence E. Thomas, 361 F.3d 653 (D.C. Cir. 2004).publishedSee United States v. Jackson, 301 F.3d 59, 62 (2d Cir.2002) ("Every circuit court that has considered the issue has held that an escape, from whatever location by whatever means, constitutes 'conduct that presents a serious potential risk…
- Narvaez v. United States, 641 F.3d 877 (7th Cir. 2011).published See United States v. Bryant, 310 F.3d 550, 553-54 (7th Cir. 2002). 5 As a career offender, Mr. Narvaez was assigned an offense level of 32.
- Narvaez v. United States, 641 F.3d 877 (7th Cir. 2011).publishedUnder existing circuit precedent at the time of sentencing, Mr. Narvaez’s felony escape convictions constituted ''crime[s] of violence” within the meaning of the career offender guideline because they were held to "otherwise involve! ] con…
- Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011).publishedSee United States v. Bryant, 310 F.3d 550, 553-54 (7th Cir.2002). .
- United States v. Anglin, 601 F.3d 523 (6th Cir. 2010).published
At page 552 Determining if prior offense qualifies as crime of violence13 citing casesfailure to report
- United States v. Hart, 578 F.3d 674 (7th Cir. 2009).published (failure to report)
- United States v. Jerome Kindle, 453 F.3d 438 (7th Cir. 2006).published United States v. Bryant, 310 F.3d 550, 552 (7th Cir.2002).
- United States v. Limon-Rosas, Juan M., 161 F. App'x 570 (7th Cir. 2005).unpublishedBut the proper characterization of the conviction is a legal, not factual, question, United States v. Bryant, 310 F.3d 550, 552 (7th Cir.2002), and in any event, prior convictions remain excluded from the limitations on judicial factfindin…
- United States v. Freddy Rosas, 401 F.3d 843 (7th Cir. 2005).published This argument is misguided because whether a previous offense constitutes crime of violence for purposes of sentencing enhancement is a question of law, see United States v. Bryant, 310 F.3d 550, 552 (7th Cir. 2002), whereas Blakely implic…
- United States v. Papay, 119 F. App'x 800 (7th Cir. 2004).unpublishedFurthermore, the characterization of a prior conviction as a crime of violence is a legal rather than a factual question, United States v. Bryant, 310 F.3d 550, 552 (7th Cir.2002), and as such is unaffected by Blakely.
- United States v. Tyrone Wallace, 326 F.3d 881 (7th Cir. 2003).published United States v. Bryant, 310 F.3d 550, 552 (7th Cir.2002).
- United States v. Duckworth, 64 F. App'x 545 (7th Cir. 2003).unpublishedUnited States v. Bryant, 310 F.3d 550, 552 (7th Cir.2002).
- United States v. Noel Santiago-Ochoa, 447 F.3d 1015 (7th Cir. 2006).published
At page 551 cited at this page1 citing case
- United States v. Hamilton, 75 F. App'x 519 (7th Cir. 2003).unpublishedHamilton insists that his escape — which involved his failure to return to the Milwaukee House of Correction after being released for a half-day work detail in the kitchen of a county jail — posed no serious risk of injury to others and as…
v.
Donald T. BRYANT, Defendant-Appellant
Appellant Donald Bryant pleaded guilty to four counts of making false statements in connection 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.” Specifically, 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 Inves[*552] tigation 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 violence.” 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 are not clear on this record, it appears that Bryant had been committed to Bradley House, a Community Corrections 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 purposes; 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 sentenced to 15 months imprisonment and 24 months of supervised release.
At his sentencing for the four counts at issue in the instant 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 conviction 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 reviewed de novo. United States v. Owolabi, 69 F.3d 156, 162 (7th Cir.1995). Whether an offense is a “crime of violence” 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 Bryant, 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 guide[*553] lines 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 threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Id. § 4B1.2(a) (emphasis added). The commentary for § 4B 1.2(a) notes that “crime of violence” includes any offense for which “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.” 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 omitted). We said that in making such a risk determination, “ ‘the benchmark should be the possibility of violent confrontation, not whether one can postulate a nonconfrontational 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 “[ejvery 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).
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.” According 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 argument. In that case, we[*554] 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 approach, looking to the statutory elements of the crime, rather than the particular facts of the underlying conviction.” Id. at 723 (citations omitted).
Bryant’s argument is also inconsistent with the commentary to the sentencing guidelines provision defining a “crime of violence.” The commentary specifically notes that it is “the conduct set forth (ie., expressly charged) in the count of which the defendant was convicted” — not the particular facts of the defendant’s situation — that is relevant 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 the “practical difficulties and potential unfairness of a factual approach.” Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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 escape, 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.
. 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 ammunition 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[*552] 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).
. Section 751(a) provides in pertinent part:
"Whoever escapes or attempts to escape ... from any institution 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).
. The sentencing guidelines define "prohibited person” by reference 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).