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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 24, 2003 Decided July 8, 2003

No. 01-3132

UNITED STATES OF AMERICA,

APPELLEE

v.

TOUMANI TOURAY THOMAS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 01cr00225–01)

David W. Bos, Assistant Federal Public Defender, argued

the cause for appellant. With him on the brief was A. J.

Kramer, Federal Public Defender. Neil H. Jaffee, Assistant

Federal Public Defender, entered an appearance.

Ann M. Carroll, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Roscoe C. Howard,

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Jr., U.S. Attorney, John R. Fisher and Thomas J. Tourish,

Jr., Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and SENTELLE and

RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: Appellant Toumani Touray

Thomas appeals from a judgment of the District Court sentencing him to fifty-seven months on his plea of guilty to

possession of a firearm by a convicted felon, and of assaulting,

resisting, and interfering with a police officer. On appeal he

contends that the District Court improperly calculated the

Sentencing Guidelines range by considering his prior conviction for escape from an officer to be for a crime of violence.

Because we conclude that the District Court did not err in its

calculations, we affirm the judgment on appeal.

I

Thomas pleaded guilty to an information charging him with

unlawful possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1) (2000), and assaulting, resisting, and interfering with a police officer in violation of

D.C. Code § 22–505(a) (2001), under a plea agreement which

did not purport to be definitive as to the base offense level

applicable to his sentence. The probation office in the presentence report (PSR) calculated a base offense level of 20.

Thomas contended at sentencing and contends now that the

level should have been 14. The point of contention is his

criminal history score which includes a conviction in 1997 for

escape from an officer in violation of D.C. Code § 22–

2601(a)(2). The District Court, consistent with the PSR,

considered that offense to constitute a ‘‘crime of violence.’’

Under the applicable Guidelines section, the base offense

level is 20 where the defendant has committed the instant

offense, or any part of it, ‘‘subsequent to sustaining one felony

conviction of TTT a crime of violenceTTTT’’ U.S. SENTENCING

GUIDELINES MANUAL § 2K2.1(a)(4)(A) (2002). Without the

enhancing effect of the crime of violence conviction, defen-
3

dant’s base offense level would apparently have been 14.

U.S.S.G. § 2K2.1(a)(6).

Thomas argued at sentencing, and argues now, that escape

is not a crime of violence. Thomas relies on the definitional

section, § 4B1.2, which specifies that a ‘‘crime of violence’’

(other than for certain specified offenses) ‘‘means any offense

under federal or state law, punishable by imprisonment for a

term exceeding one year, that – (1) has as an element the use,

attempted use, or threatened use of physical force against the

person of another, or (2) TTT otherwise involves conduct that

presents a serious potential risk of physical injury to another.’’ U.S.S.G. § 4B1.2(a). Thomas argues that the crime of

escape may not involve violence at all, as in the case of a

‘‘walkaway’’ escape from a halfway house. The government

argues for, and the District Court adopted, a ‘‘categorical’’

approach in which the offense of escape is treated as categorically a crime of violence and therefore subject to the enhancing effect of § 2K2.1(a)(4)(A). As there was no controlling

authority from this court or from the United States Supreme

Court, the District Court adopted the reasoning of United

States v. Nation, 243 F.3d 467 (8th Cir. 2001), and other

circuits cited therein, and entered a judgment based on the

base offense level of 20. Thomas appealed.

II

As noted above, section 2K2.1(a)(4)(A) enhances a defendant’s sentence if ‘‘the defendant committed any part of the

instant offense subsequent to sustaining one felony conviction

of TTT a crime of violence.’’ U.S.S.G. § 2K2.1(a)(4)(A). Application Note 5 to § 2K2.1(a)(4)(A) states that the term

‘‘crime of violence’’ is given the meaning outlined in

§ 4B1.2(a). U.S.S.G. § 2K2.1 cmt. n.5. Section 4B1.2(a)

defines a ‘‘crime of violence’’ as:

[A]ny offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that –

(1) has as an element the use, attempted use, or threatened use of physical force against the person of

another, or
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(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.

U.S.S.G. § 4B1.2(a). Application Note 1 to U.S.S.G. § 4B1.2

provides that:

‘‘Crime of violence’’ includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit,

and burglary of a dwelling. Other offenses are included

as ‘‘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 involved the use of

explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2 cmt. n.1.

Thomas’s prior offense of conviction, escape from an officer

in violation of D.C. Code § 22–2601(a)(2), concededly was

punishable by imprisonment for a term exceeding one year.

The current dispute concerns whether it fits the definition

borrowed from the application note of U.S.S.G. § 4B1.2 –

more specifically, whether the offense ‘‘by its nature, presented a serious potential risk of physical injury to another.’’ In

the ‘‘categorical’’ approach set out in United States v. Nation,

243 F.3d 467 (8th Cir. 2001), and adopted by the District

Court, every offense of escape, ‘‘even a so-called ‘walkaway’

escape, involves a potential risk of injury to others.’’ Id. at

472. We are not certain that we are prepared to go so far.

The Nation court analyzed the offense of escape in the

criminal history of the appellant before it by looking to the

first Application Note to § 4B1.2, specifically the language

which directs the inclusion of enumerated offenses as ‘‘crimes

of violence’’ when ‘‘the conduct set forth TTT in the count of

which the defendant was convicted TTT by its very nature,
5

presented a serious potential risk of physical injury to another.’’ U.S.S.G. § 4B1.2, cmt. n.1. The Nation court concluded

that escape categorically fits that description, because ‘‘[e]very escape TTT ‘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.’ ’’ 243 F.3d at 472 (quoting United States v.

Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994)). Under the view

of the Eighth Circuit and the Tenth Circuit, this violence is

inherent even in an escape by stealth, or a walkaway escape,

because ‘‘[e]ven the most peaceful escape cannot eliminate the

potential for violent conflict when the authorities attempt to

recapture the escapee.’’ Nation, 243 F.3d at 472. Accord

United States v. Hairston, 71 F.3d 115 (4th Cir. 1995);

United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999); United

States v. Harris, 165 F.3d 1062 (6th Cir. 1999).

Arguably, the approach taken by the other circuits proves

too much. While it may be true that the recapture of an

escapee inherently contains a risk of violent encounter between the escapee and the arresting officers, the same is true

as to the capture of any lawbreaker. Thus, one might argue

that under the approach of those circuits, all crimes become

crimes of violence and the crime of violence enhancement

created by § 2K2.1(a)(4)(A) destroys the base offense level

that would exist in its absence for all defendants with prior

felony convictions of whatever nature. Therefore, we are

reluctant to adopt the categorical approach. However, it

makes no difference in the outcome.

As the Nation court recognized, ‘‘the term ‘conduct’ in

§ 4B1.2(a)(2) could suggest an examination of the underlying

facts of a particular offense,’’ 243 F.3d at 472. While we have

little before us of the specifics of Thomas’s prior conviction

for escape, we do know that offense was not just ‘‘escape,’’

but specifically ‘‘escape from an officer’’ in violation of D.C.

Code § 22–2601(a)(2). That statute also outlaws ‘‘escape

from an institution.’’ D.C. Code § 22–2601(a)(1). If the

latter charge had been the offense of conviction, perhaps the

argument between the categorical or underlying facts approach to the crimes of violence question might be squarely
6

presented. But where, as here, it appears that Thomas

effected his escape from the person of an officer, the risk of

violence is much more apparent. A prisoner not returning to

a halfway house or sneaking away from an unguarded position in the night may not inherently create a risk of harm to

others. A prisoner escaping from the custody of an officer

does create such an inherent risk.

We find ourselves, then, in the position of the Tenth Circuit

in United States v. Gosling, supra. Just as that circuit

opined, we need not ‘‘adopt either a categorical or an underlying facts approach in the context of § 4B1.2.’’ 39 F.3d at

1142 n.3. Whichever approach we employ, the District Court

did not err in concluding that defendant’s escape from an

officer constituted a crime of violence within the meaning of

U.S.S.G. § 2K2.1(a)(4)(A) and setting the base level at 20.

Conclusion

For the reasons set forth above, the sentencing judgment

of the District Court is

Affirmed.