UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-4164

JEFFREY MITCHELL,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, District Judge.

(CR-99-71-F)

Submitted: September 29, 2000

Decided: October 13, 2000

Before WILKINS and NIEMEYER, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Janice McKenzie Cole, United States Attorney, Anne M.

Hayes, Assistant United States Attorney, Jennifer May-Parker, Assistant United States Attorney, Raleigh, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

Jeffrey Mitchell pled guilty to escape, see 18 U.S.C. § 751 (1994),

and was sentenced as a career offender* to a term of thirty-seven

months imprisonment, to be served consecutive to the sentence he

was then serving for a federal drug conviction. Mitchell contends that

the district court erred in finding that his escape was a crime of violence. We affirm.

A defendant is a career offender if (1) he was at least eighteen

years old when he committed the instant offense, (2) the instant

offense is either a crime of violence or a drug offense, and (3) the

defendant has at least two prior felony convictions for either a crime

of violence or a drug offense. A "crime of violence" is defined in

USSG § 4B1.2(a) as a felony that:

(1) has as an element the use, attempted use, or threatened

use of physical force against the person of another, or (2) is

burglary, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential

risk of physical injury to another.

The commentary identifies a number of offenses as crimes of violence and adds that other offenses are 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 . . . by

its nature, presented a serious potential risk of physical

injury to another.

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*U.S. Sentencing Guidelines Manual § 4B1.1 (1998).

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USSG § 4B1.2, comment. (n.1).

The district court held that, even though Mitchell walked away

from a non-secure facility, his escape was by its nature a crime of violence. The court relied on United States v. Dickerson, 77 F.3d 774

(4th Cir. 1996) (holding that attempted escape from custody is, in the

abstract, a crime of violence). Mitchell argues on appeal that Dickerson should be limited to its facts and should not preclude an inquiry

into the particular facts underlying the escape. He suggests that

escape offenses should be divided into two categories: violent and

non-violent. We find that either approach is foreclosed by Dickerson.

The guidelines "prohibit `a wideranging inquiry into the specific

circumstances surrounding a conviction' in determining whether an

offense is a crime of violence." United States v. Martin, 215 F.3d 470,

472-73 (4th Cir. 2000) (quoting United States v. Johnson, 953 F.2d

110, 113 (4th Cir. 1992)). If an offense is not identified as a crime of

violence in USSG § 4B1.2 or its commentary, the court must decide

whether the offense has as an element the use, attempted use, or

threatened use of physical force. See Dickerson , 77 F.3d at 776.

Escape in violation of 18 U.S.C. § 751(a) (1994) does not have as an

element the use, attempted use or threatened use of force against

another. See Dickerson, 77 F.3d at 776.

If the prior offense is one of a limited class of offenses where the

definition is ambiguous and proscribes both violent and non-violent

conduct, then the court should look to the charging papers and jury

instructions to decide whether the offense is a crime of violence. See

Martin, 215 F.3d at 472 n.2 (citing United States v. Coleman, 158

F.3d 199, 202 (4th Cir. 1998) (en banc)); United States v. Kirksey,

138 F.3d 120, 124 (4th Cir.), cert. denied, 525 U.S. 849 (1998);

United States v. Cook, 26 F.3d 507, 509 (4th Cir. 1994). Mitchell

argues that such ambiguity exists with respect to the offense of

escape. However, the elements of § 751 do not indicate that it could

be committed in a violent or non-violent manner, as is the case with

the state statutes this court examined in this context in Coleman and

Kirksey.

If the foregoing inquiry does not establish that the offense is a

crime of violence, the sentencing court must determine whether it

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"otherwise involves conduct that presents a serious potential risk of

physical injury to another" under § 4B1.2(a)(2). Martin, 215 F.3d at

472. In making this determination, the court must (1) consider only

the facts charged in the indictment and, (2) "if that effort is unavailing

. . . consider whether the offense of conviction is a crime of violence

in the abstract." Id. at 473 (following Dickerson). With respect to

escape and attempted escape, this inquiry has been resolved. See

Dickerson, 77 F.3d at 777 (holding that attempted escape from custody is a crime of violence); United States v. Hairston, 71 F.3d 115,

118 (4th Cir. 1995) (holding that escape from custody, even by

stealth, is a violent felony because there is an inherent risk that the

escapee may use physical force if interrupted). See also United States

v. Ruiz, 180 F.3d 675, 676-77 & n.7 (5th Cir. 1999) (escape from federal prison camp); United States v. Harris, 165 F.3d 1062, 1068 (6th

Cir. 1999) (escape from county workhouse). It is thus clear that the

district court correctly determined that Mitchell's escape was a crime

of violence.

We therefore affirm the sentence. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

AFFIRMED

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