FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-10577

Plaintiff-Appellee, D.C. No.

v.  CR-04-00083-LRH/

PAL FRAZER SCOTT PICCOLO,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted

September 15, 2005—San Francisco, California

Filed April 3, 2006

Before: Betty B. Fletcher, John R. Gibson,* and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge B. Fletcher

*The Honorable John R. Gibson, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation. 

3655
COUNSEL

Franny A. Forsman, Las Vegas, Nevada, and Arthur L. Allen,

Las Vegas, Nevada, for the appellant. 

Daniel G. Bogden, Las Vegas, Nevada, and Patrick Walsh,

Las Vegas, Nevada, for the appellee. 

OPINION

B. FLETCHER, Circuit Judge: 

Appellant Frazer Scott Piccolo appeals the district court’s

determination that his conviction for walkaway escape from

a halfway house is a “crime of violence” under United States

Sentencing Guidelines (“Sentencing Guidelines” or

“U.S.S.G.”) § 4B1.1 and that he is accordingly a “career

offender” under that provision. Because we hold that the district court erred in determining that any escape is a crime of

violence, we reverse and remand for resentencing. 

I

On April 9, 2003, Piccolo, while residing at the Clark Community Corrections Center, a non-secure halfway house in

Las Vegas, Nevada, left to attend a drug treatment meeting

and did not return.1 He voluntarily turned himself in on Febru1At that time, he was serving the remaining months of a 63-month sentence after pleading guilty to one count of bank robbery under 18 U.S.C.

3658 UNITED STATES v. PICCOLO
ary 25, 2004, and was charged with escape under 18 U.S.C.

§ 751(a). Piccolo entered a guilty plea. 

The Presentence Investigation Report categorized Piccolo’s

walkaway escape as a crime of violence, subjecting him to the

career-offender provision of the Sentencing Guidelines in

light of his prior convictions for crimes of violence. That provision, U.S.S.G. § 4B1.1, provides that a defendant is a career

offender if:

(1) the defendant was at least eighteen years old at

the time the defendant committed the instant offense

of conviction; (2) the instant offense of conviction is

a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has

at least two prior felony convictions of either a crime

of violence or a controlled substance offense. 

Piccolo did not contest the designations regarding the prior

crimes in district court.2 Rather, he claimed that § 4B1.1 is not

applicable to him because walkaway escape, the instant

offense, is not a crime of violence. 

The district court expressed doubt whether Piccolo’s escape

could be deemed a crime of violence, noting, “I don’t view a

walk away from the Clark Center as in the same category as

classic escapes obviously.” The district court also stated, “the

facts of Mr. Piccolo’s case are about as far removed from a

crime of violence of any — as any crime of violence I’ve personally had in front of me . . . . It’s — this is a halfway house,

§ 2113(a). 

2These included a 1994 conviction for burglary under Nevada Revised

Statutes 205.060; a 1995 conviction for attempted burglary under Nevada

Revised Statutes 205.060 (burglary) and 193.330 (attempt); and the 1998

federal conviction for Bank Robbery in violation of 18 U.S.C. § 2113(a),

for which Piccolo was confined at the time of his escape. 

UNITED STATES v. PICCOLO 3659
he did walk away, there was no threat to anyone . . . .” Ultimately, however, the district court ruled that under the analysis set forth in Taylor v. United States, 495 U.S. 575 (1990),

all escapes, as a matter of law, constitute crimes of violence.

Piccolo was sentenced as a career offender to 37 months

under the enhanced Sentencing Guidelines range. This timely

appeal followed.3

II

We review the district court’s interpretation of the Sentencing Guidelines de novo. United States v. Cantrell, 433 F.3d

1269, 1279 (9th Cir. 2006). We also review de novo the determination of career-offender status under U.S.S.G. § 4B1.1.

United States v. Kelly, 422 F.3d 889, 891-92 (9th Cir. 2005).

Under U.S.S.G. § 4B1.2, a “crime of violence” is defined

as 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) 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. 

Because escape is neither specifically enumerated under

U.S.S.G. § 4B1.2 nor has as “an element the use, attempted

use, or threatened use of physical force against the person of

3

In the proceedings before the district court, defense counsel asserted

that, had Piccolo not been deemed a career offender, his Sentencing

Guidelines range would have been 15 to 21 months, including a four-level

reduction for escape from a non-secure community-correction center. See

U.S.S.G. § 2P1.1(b)(3). 

3660 UNITED STATES v. PICCOLO
another,” the offense, to qualify as a crime of violence, must

fall within the “catchall” provision of § 4B1.2(a)(2) for “conduct that presents a serious potential risk of physical injury to

another.” 

[1] The “categorical approach” outlined in Taylor governs

our inquiry of the question whether a particular conviction

satisfies the specified elements of a sentence-enhancement

provision. Under the categorical approach, we “do not examine the facts underlying the prior offense, but ‘look only to the

fact of conviction and the statutory definition of the prior

offense.’ ” United States v. Corona-Sanchez, 291 F.3d 1201,

1203 (9th Cir. 2002) (en banc) (quoting Taylor, 495 U.S. at

602). We then “determine whether ‘the fact of conviction and

the statutory definition of the prior offense’ demonstrate that

[the defendant] could not have been convicted of an offense

outside the guideline definition.” United States v. Shumate,

329 F.3d 1026, 1029 (9th Cir. 2003) (citing Corona-Sanchez,

291 F.3d at 1203).4 If we find that the relevant statute would

support a conviction not defined as a crime of violence under

§ 4B1.2, the prior “conviction does not qualify as a predicate

offense.” Corona-Sanchez, 291 F.3d at 1203. 

[2] We apply the categorical approach “in a variety of sentencing contexts.” United States v. Rivera-Sanchez, 247 F.3d

905, 908 (9th Cir. 2001) (en banc). Moreover — and crucial

to this case — we apply it without regard to whether the given

offense is a prior offense or the offense of conviction. 

In United States v. Amparo, 68 F.3d 1222, 1224-26 (9th

Cir. 1995), we applied the categorical approach to a current

4

In the limited circumstances where such materials prove insufficient to

make that determination, we adopt a modified categorical approach and

expand the inquiry to include “the statutory definition, charging document,

written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard

v. United States, 125 S.Ct. 1254, 1257, 1263 (2005); see also Kelly, 422

F.3d at 895. 

UNITED STATES v. PICCOLO 3661
conviction under 18 U.S.C. § 924(c)(3)(B) to hold that possession of an unregistered sawed-off shotgun is a crime of

violence. Amparo noted that, when determining questions of

law, we adopt a categorical approach in lieu of “the circumstantial or case-by-case method that requires the district court

to inquire into the facts of the particular case.” Id. at 1225

(quoting United States v. Mendez, 992 F.2d 1488, 1490 (9th

Cir. 1993) (internal quotation marks omitted)). Moreover, in

the context of crime-of-violence determinations under

§ 924(c), our categorical approach applies regardless of

whether we review a current or prior crime. See Amparo, 68

F.3d at 1224-26; see also Mendez, 922 F.2d at 1489-91

(applying categorical approach to hold that current offense of

conspiracy to rob under 18 U.S.C. § 1951 is a crime of violence under § 924(c)(3)(B)); United States v. Springfield, 829

F.2d 860, 862-63 (9th Cir. 1987) (same with respect to

involuntary-manslaughter conviction). We considered the

possibility of using a case-by-case approach when reviewing

the instant crime of conviction but declined to do so in light

of our general commitment to deciding rules of law on categorical grounds. Amparo, 68 F.3d at 1225-26. Although the

categorical analysis is driven in part by a policy decision to

“avoid ‘ad-hoc mini-trials regarding an individual’s prior

convictions’ during sentencing hearings,” Amparo, 68 F.3d at

1225 (emphasis added) (citing United States v. Sherbondy,

865 F.2d 996, 1008 (9th Cir. 1988)), the absence of that particular problem did not preclude us from adopting the categorical approach.5

5

It is by no means certain that other “practical difficulties” with a caseby-case approach would not equally complicate adjudications of current

offenses. For instance, in the situation where a defendant pleads guilty,

there may be insufficient facts available to determine whether the offense

was a violent felony. See Taylor, 495 U.S. at 601. Moreover, it would be

unfair to impose an enhancement in a situation where the facts indicated

a violent felony but the defendant had pleaded guilty to a lesser, nonviolent charge. Id. at 601-02. 

3662 UNITED STATES v. PICCOLO
[3] We have consistently applied categorical analysis in

determining whether a prior offense satisfies a sentenceenhancement provision of the Sentencing Guidelines. See,

e.g., United States v. Pimentel-Flores, 339 F.3d 959, 967-68

(9th Cir. 2003) (holding that the question whether defendant’s

prior conviction is a crime of violence for purposes of

U.S.S.G. § 2L1.2(b)(1) is subject to categorical approach);

Shumate, 329 F.3d at 1029 (same with respect to careeroffender status under U.S.S.G. § 4B1.2). The logic of Amparo

dictates that we do the same with respect to current offenses.

Accordingly, the crime-of-violence determination under

U.S.S.G. § 4B1.2, a legal question, is properly decided under

Taylor’s categorical analysis in cases of both prior and current

offenses.6

III

[4] As previously noted, the definition of “crime of violence” under U.S.S.G. § 4B1.2 does not specifically mention

“escape.” Moreover, an escape under § 751(a) does not have

as “an element the use, attempted use, or threatened use of

physical force against the person of another.” Thus, we decide

whether the “catchall phrase” of U.S.S.G. § 4B1.1 applies to

the crime of escape. 

[5] The general escape statute provides in pertinent part,

“Whoever escapes or attempts to escape from . . . any institu6The Fourth Circuit applies the categorical approach to an instant

offense in determining whether that offense qualifies as a crime of violence under the Sentencing Guidelines. See United States v. Martin, 215

F.3d 470, 472-75 (4th Cir. 2000) (concluding that a current bank-larceny

offense is not a crime of violence for purposes of U.S.S.G. § 4B1.1);

United States v. Johnson, 953 F.2d 110, 114 (4th Cir. 1992) (rejecting distinction between prior offenses and the instant offense for purposes of categorical analysis). The Tenth Circuit takes the opposite approach. See

United States v. Riggans, 254 F.3d 1200, 1203-04 (10th Cir. 2001) (rejecting the categorical approach in favor of “a conduct-specific inquiry” when

considering the instant offense of conviction). 

UNITED STATES v. PICCOLO 3663
tion or facility in which he is confined by direction of the

Attorney General . . . shall, if the custody or confinement is

by virtue of . . . [a] conviction of any offense . . . be fined

under this title or imprisoned not more than five years, or both

. . . .” 18 U.S.C. § 751(a). The statute does not differentiate

between violent and non-violent escapes; the statutory definition of the crime runs the gamut from maximum-security

facilities to non-secure halfway houses. 

[6] We think that the circumstances apparent in a walkaway

escape are of an entirely different order of magnitude than

escapes from jails and prisons. Residents of halfway houses

have certain privileges of ingress and egress, do not live

behind concrete walls and barbed wire, and are not under

constant surveillance by armed guards. Those who leave without returning do not pose an automatic risk of danger and

therefore do not categorically raise a serious potential risk of

physical harm. Thus, convictions for walkaway escape could

clearly take place “on the basis of conduct that did not present

a serious potential risk of physical injury to another.” Kelly,

422 F.3d at 893. 

[7] Kelly is instructive. In Kelly, we held that a prior conviction for attempting to elude a police vehicle did not constitute a crime of violence. Id. at 893-95. The circumstances in

Kelly involved close physical confrontation under circumstances leading to a much greater possibility of violence than

walkaway escape. The offense in Kelly also contained an “endangerment” provision not present in the escape statute at bar,

making the latter offense, by comparison, even less likely to

qualify as a “crime of violence.” We conclude that Kelly controls the outcome of this case, resolving, a fortiori, that a

walkaway escape is not a crime of violence. Because 18

U.S.C. § 751(a) makes possible a conviction for “an offense

outside the guideline definition,” Shumate, 329 F.3d at 1029,

3664 UNITED STATES v. PICCOLO
it does not automatically meet the specified criteria triggering

the career-offender provision of the Sentencing Guidelines.7

A few additional points are noteworthy. First, the Sentencing Guidelines specifically call for a four-level reduction in

cases of escape from non-secure facilities. See U.S.S.G.

§ 2P1.1(b)(3). Under the government’s theory, a current conviction for a walkaway escape from a non-secure facility is a

crime of violence which, when coupled with two or more

prior convictions that qualify as crimes of violence, triggers

the career offender enhancement, thereby dramatically

increasing the offense level. In the absence of such priors,

however, the defendant would be entitled to a four-level

reduction in the Sentencing Guidelines range. We do not see

how these two positions can be reconciled. 

The Commentary to U.S.S.G. § 4B1.2 is also informative.

It expressly states that the definition of “crime of violence”

shall not include unlawful possession of a firearm by a felon.

U.S.S.G. § 4B1.2 cmt. n.1. That Congress would explicitly

exclude this particular crime from the “catchall” clause of

U.S.S.G. § 4B1.2(a)(2), yet implicitly include a non-violent

walkaway escape of the sort at issue in this case, seems

unlikely. 

A number of our sister circuits, relying on Taylor, have

held that any escape, however effected, categorically constitutes a crime of violence under the Sentencing Guidelines.

See, e.g., United States v. Winn, 364 F.3d 7, 12 (1st Cir. 2004)

7Our conclusion that a conviction for escape under § 751(a) does not

categorically qualify as a crime of violence does not preclude the government from demonstrating, under a modified categorical approach, that a

specific conviction for escape would meet the requisite standard. See

Corona-Sanchez, 291 F.3d at 1211. Although we have previously left

open the question whether the modified categorical approach applies to

cases arising under the “catchall” provision, see Kelly, 422 F.3d at 895;

United States v. Parker, 5 F.3d 1322, 1326 (9th Cir. 1993), we see no reason why it would not apply to that provision. 

UNITED STATES v. PICCOLO 3665
(the “categorical approach forecloses the conclusion” that

failure to return to a halfway house would not “present a serious risk of injury to another”); United States v. Bryant, 310

F.3d 550, 554 (7th Cir. 2002) (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”) (internal quotations omitted); United States v. Luster, 305 F.3d 199, 202 (3d Cir. 2002) (holding that escape

qualifies as a crime of violence); United States v. Gay, 251

F.3d 950, 954-55 (11th Cir. 2001) (per curiam) (same);

United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001)

(same); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.

1999) (same); United States v. Harris, 165 F.3d 1062, 1068

(6th Cir. 1999) (same); United States v. Mitchell, 113 F.3d

1528, 1533 (10th Cir. 1997) (same); United States v. Dickerson, 77 F.3d 774, 777 (4th Cir. 1996) (same). Courts have

similarly applied Taylor in analogous circumstances to rule

that an escape conviction qualifies as a “violent felony” under

the Armed Career Criminal Act. United States v. Wardrick,

350 F.3d 446, 455 (4th Cir. 2003); United States v. Franklin,

302 F.3d 722, 724 (7th Cir. 2002); United States v. Jackson,

301 F.3d 59, 62 (2d Cir. 2002); United States v. Hairston, 71

F.3d 115, 117-18 (4th Cir. 1995). 

The majority of these circuits liken an escape to 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.” United States v.

Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994); see also Winn,

364 F.3d at 11; Nation, 243 F.3d at 472. That theory apparently renders all escapes, including those that take place without incident, crimes of violence under the Sentencing

Guidelines. 

Our view is that the powder-keg “approach taken by the

other circuits proves too much.” United States v. Thomas, 333

F.3d 280, 282 (D.C. Cir. 2003). While an escapee who flees

a secured facility or the custody of an armed guard presents

3666 UNITED STATES v. PICCOLO
a serious risk of injury to himself and others, the same cannot

be said for an escapee who leaves a halfway house with permission and fails to return. See Thomas, 333 F.3d at 283 (distinguishing the case of “[a] prisoner not returning to a halfway

house,” which “may not inherently create a risk of harm to

others”); United States v. Adkins, 196 F.3d 1112, 1119 (10th

Cir. 1999) (McKay, J., concurring) (“There is a quantum difference between the assumptions about the intrinsic danger of

unauthorized departure from actual custody . . . and of failure

to return from authorized departure from actual custody.”).

We therefore decline the opportunity to join the other circuits

that have held that any escape is a crime of violence. 

The record is clear that Piccolo left the unsecured facility

with permission to attend a drug treatment program. This is

a far cry from a scenario where an escapee flees a guarded

prison or the custody of an armed official. And, as mentioned

earlier, the district court noted the nonviolent nature of the

offense.8

[8] Ordinarily, following a determination that an offense

does not categorically qualify as a crime of violence, we

would turn to the modified categorical approach and examine

the conviction with reference to additional relevant evidence.

See Shepard, 125 S.Ct. at 1257, 1263. That step is unnecessary in this case, however, given our recognition that walkaway escapes that involve no violence or potential for

violence — such as the one committed here by Piccolo — are

the very reason that convictions under § 751(a) sweep too

broadly to qualify as a crime of violence. 

8The district court, noting Piccolo’s “particularly egregious felony history,” seems to have assumed that when presented with “a defendant with

this kind of a criminal history the Court has to view that this particular

offense would qualify as a crime of violence.” But Piccolo’s criminal history has no bearing on the question whether the escape is a crime of violence, though it could be a factor in considering the proper sentence under

the appropriate Sentencing Guidelines range. 

UNITED STATES v. PICCOLO 3667
IV

[9] Although Taylor provides the appropriate framework

for determining whether a current offense constitutes a crime

of violence, a conviction for escape under 18 U.S.C. § 751

does not necessarily “involve[ ] conduct that presents a serious potential risk of physical injury to another,” U.S.S.G.

§ 4B1.2(a)(2), and is therefore not a crime of violence under

the Sentencing Guidelines. We reverse and remand for resentencing.9

REVERSED AND REMANDED.

9Given our conclusion that the instant offense is not a crime of violence,

we need not address Piccolo’s claim that his previous offenses also do not

qualify as crimes of violence or his Sixth Amendment challenge. 

3668 UNITED STATES v. PICCOLO