UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, Assistant 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Unpublished opinions are not binding precedent in this circuit.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 sentence 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 "violent 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 possession 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 felony 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 felony 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 Carolina 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 decision 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 following: (1) imprisonment or otherwise under the custody of the commissioner 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, fixture 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 aforesaid; 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 felony 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 definition 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 precludes such consideration.

Accordingly, we affirm Key's sentence. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court, and oral argument would not

aid the decisional process.

AFFIRMED

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