# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued April 23, 2008

Decided September 18, 2008

Before

RICHARD D. CUDAHY, Circuit Judge

JOHN L. COFFEY, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 07

‐ 2733

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

GREGORY J. BURKS,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Western District of

Wisconsin.

No. 06

‐ CR

‐ 174

‐ C

Barbara B. Crabb,

Chief Judge.

O R D E R

Gregory Burks was convicted of possessing crack with intent to distribute, 21 U.S.C.

§ 841(a)(1), and sentenced as a career offender on the basis of state convictions for escape

and for failure to report. In light of United States v. Templeton

, No. 07

‐ 2949, 2008 WL 4140616

(7th Cir. Sept. 9, 2008), in which we abrogated our precedent holding that all escape and

failure

‐ to

‐ report crimes qualify as violent felonies for the purposes of career offender status,

we remand for resentencing. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 07

‐ 27 33 Page 2

I. Background

In 2006 a Madison, Wisconsin police officer working undercover bought crack

cocaine from a drug dealer he knew as Shane. During the sale, Shane, also known as

Melvin Jackson, was joined by his partner Gregory Burks. The two were arrested and both

later pleaded guilty to possession with intent to distribute. 21 U.S.C. § 841(a)(1). Burks was

sentenced as a career offender because the district court held that he had been convicted of

two crimes of violence. U.S.S.G. § 4B1.1, 4B1.2. The first was a 2002 conviction for failure to

report, see W IS

. S TAT § 946.425(1m)(b), where Burks had failed to report to county jail to

serve a series of short sentences that totaled less than one year. The record contains no

details about his eventual apprehension by the authorities. Burks’s second crime of violence

was a 2003 conviction for escape, see W IS

. S TAT § 946.42(3)(a), where, after a traffic stop, an

officer attempted to put Burks into her vehicle, but he broke free and ran away. Two days

later an officer attempted to take Burks into custody at his sister’s home, but he ran away a

second time. Again, the record reveals that Burks was eventually apprehended by the

authorities, but it does not reveal any details about how he was apprehended.

At sentencing, Burks argued that he was not a career offender because his prior

convictions for failure to report to jail and escape should not be considered crimes of

violence under U.S.S.G. § 4B1.2(a). To that end, Burks presented the testimony of Barry

Widera of Court Data Technologies, a consulting business specializing in researching data

maintained by the Wisconsin court system. Burks argued that the data, which we

summarized in our Templeton opinion, Templeton

, 2008 WL 4140616, at *3, showed that

neither the escape conviction nor the failure

‐ to

‐ report conviction should be considered a

crime of violence under U.S.S.G. § 4B1.2 because in a typical case, neither “presents a

serious potential risk of physical injury to another.” The district court thanked Burks for his

efforts, but ruled that it was bound by circuit precedent to treat the two convictions as

crimes of violence triggering career offender status. The court calculated Burks’s guidelines

range as a career offender to be 188 to 235 months and gave him 188 months.

II. Analysis

Career offender status applies only to a defendant who has “at least two prior felony

convictions of either a crime of violence or a controlled substance offense.” U.S.S.G.

§ 4B1.1(a)(3). “Crime of violence” is defined as

any offense under federal or state law, punishable by imprisonment for a term

exceeding one year that

–No. 07

‐ 27 33 Page 3

(1) has as 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 use of explosives, or

otherwise involves conduct that presents a serious potential risk of physical

injury to another.

We had read the “otherwise” clause in § 4B1.2(a)(2) and the identical language in 18 U.S.C.

§ 924(e) to encompass the crimes of escape and failure to report. United States v. Chambers

,

473 F.3d 724, 726 (7th Cir. 2007) (escape); United States v. Golden

, 466 F.3d 612, 614

‐ 15 (7th

Cir. 2006) (failure to report). Burks’s only argument on appeal was that the data he

presented required us to revisit that precedent. But exactly one week before oral argument,

the Supreme Court issued its opinion in Begay v. United States

, 128 S. Ct. 1581 (2008), which

held that felony drunk driving was not a violent felony under the Armed Career Criminal

Act because even assuming that it presented “a serious potential risk of physical injury to

another,” it was “too unlike the provision’s listed examples.” Id. at 1584. In supplemental

briefing on the applicability of Begay

, Burks argues that escape and failure to report should

not be categorically considered crimes of violence because they are also unlike the

enumerated examples. We recently agreed. Templeton

, 2008 WL 4140616.

In Templeton

, we held that a conviction under W IS

. S TAT

. § 946.425 for failure to

report was not a crime of violence, Templeton

, 2008 WL 4140616, at *5, and that a conviction

under W IS

. S TAT

. § 946.42 for escape was not categorically a crime of violence, id. With

regard to the escape conviction, we remanded so that the district court could determine, by

looking at the indictment or other charging papers, whether the way in which the

defendant committed the offense qualified it as a crime of violence. Here too, Burks’s

conviction for failure to report is not a crime of violence, but we cannot say whether his

conviction for escape qualifies. That would seem to leave only one possible violent felony,

which would preclude career offender status. See U.S.S.G. § 4B1.1, 4B1.2

. But further

proceedings on the nature of Burks’s escape conviction may be necessary because he has

another prior conviction—for vehicular fleeing/eluding an officer, W IS

. S TAT

. § 346.04(3)—which the district court may determine to be a crime of violence itself. Cf.

United States v. Spells

, No. 07

‐ 1185, 2008 WL 3177284, *8 (7th Cir. Aug 8, 2008) (holding that

after Begay

, Indiana’s law against fleeing an officer, which is similar to Wisconsin’s law,

constitutes a “violent felony”).

Accordingly, we REMAND for re

‐ sentencing.