In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2199

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DONALD T. BRYANT,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 01 CR 156—Rudy Lozano, Judge.

____________

ARGUED SEPTEMBER 20, 2002—DECIDED NOVEMBER 13, 2002

____________

Before EASTERBROOK,RIPPLE,andKANNE, Circuit Judges.

KANNE, Circuit Judge. Appellant Donald Bryant pleaded

guilty to four counts of making false statements in connection with the transfers of firearms in violation of 18 U.S.C.

§ 922(a)(6). At his sentencing, the district court determined

that Bryant was subject to an elevated base offense level

under the federal sentencing guidelines due to his prior

conviction for the crime of escape, which the district court

found was a “crime of violence” under the guidelines. In this

appeal, Bryant objects to the use of the increased base

offense level, arguing that his previous conviction for escape

cannot be characterized as a “crime of violence.” Specifi-
2 No. 02-2199

1 Section 922(a) provides in relevant part:

“It shall be unlawful . . . for any person in connection with the

acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer,

licensed dealer, or licensed collector, knowingly to make any

false or fictitious oral or written statement or to furnish or

exhibit any false, fictitious, or misrepresented identification,

intended or likely to deceive such importer, manufacturer,

dealer, or collector with respect to any fact material to the

lawfulness of the sale or other disposition of such firearm or

ammunition under the provisions of this chapter. . . .”

18 U.S.C. § 922(a)(6) (2002).

cally, he argues that the particular circumstances of his

“escape” from a halfway house presented no risk of physical

injury to anyone, and therefore cannot be considered a

“crime of violence.” Because we believe that the crime of

escape, as a category, “presents a serious potential risk of

physical injury to another” and thus qualifies as a “crime of

violence” under the federal sentencing guidelines, we affirm

the sentence imposed by the district court.

I. History

On December 13, 2001, Donald Bryant pleaded guilty to

four counts of making false statements and using false

identification in connection with certain firearms transfers

in violation of 18 U.S.C. § 922(a)(6).1

 Bryant’s Presentence

Investigation Report (“PIR”) recommended that his base

offense level be elevated to 20, rather than the typical base

offense level of 14 for “prohibited persons” convicted under

§ 922(a)(6), reasoning that the increase was warranted as

Bryant had previously been convicted of a “crime of violence.” See U.S.S.G. § 2K2.1(a)(4)(A) (2002).

In April 1997, Bryant had been convicted of the crime of

escape, which the PIR recognized as a “crime of violence.”

While the precise details of this previous escape conviction
No. 02-2199 3

2 Section 751(a) provides in pertinent part:

“Whoever escapes or attempts to escape . . . from any institution or facility in which he is confined . . . by virtue of any

process issued under the laws of the United States by any

court, judge, or commissioner [United States magistrate

judge] . . . shall . . . be fined under this title or imprisoned not

more than five years, or both. . . .”

18 U.S.C. § 751(a) (2002).

are not clear on this record, it appears that Bryant had

been committed to Bradley House, a Community Corrections Center or halfway house, in Michigan City, Indiana,

after violating the terms of his probation. On April 8, 1997,

Bryant failed to return to this facility after having been

granted permission to be temporarily absent for work purposes; he remained in escape status for approximately 10

days until April 17, 1997. Upon re-apprehension, Bryant

was charged with and pleaded guilty to violating the

federal scape statute, 18 U.S.C. § 751(a)2

; he was sentenced to 15 months imprisonment and 24 months of supervised release.

At his sentencing for the four counts at issue in the instant case, Bryant objected to the classification of this

previous conviction for escape as a “crime of violence.” The

sentencing court disagreed, finding that an escape conviction qualified as a crime of violence as that term is used

under the sentencing guidelines. Bryant was accordingly

sentenced to 78 months imprisonment and now appeals this

sentence.

II. Analysis

We review a sentencing court’s factual determinations for

clear error, while interpretations of the guidelines are reviewed de novo. United States v. Owolabi, 69 F.3d 156, 162

(7th Cir. 1995). Whether an offense is a “crime of violence”
4 No. 02-2199

3 The sentencing guidelines define “prohibited person” by reference to the definition given that term in 18 U.S.C. § 922(g) and

§ 922(n). See U.S.S.G. § 2K2.1 cmt. n. 6. Bryant was a “prohibited

person” as a convicted felon, pursuant to the definition in 18

U.S.C. § 922(g)(1).

for purposes of sentencing is a question of law that this

Court reviews de novo. United States v. Fife, 81 F.3d 62, 63

(7th Cir. 1996). 

For crimes involving prohibited firearms transactions,

including the crimes for which Bryant was sentenced in this

case, the federal sentencing guidelines provide for varying

base offense levels, depending on the circumstances of both

the offense and the offender. See U.S.S.G. § 2K2.1. For

example, if the defendant was a “prohibited person” at the

time the offense was committed, as was the case with Bryant, the guidelines provide for a base offense level of 14.3

See id. § 2K2.1(a)(6). If, however, the defendant “committed

any part of the instant offense subsequent to sustaining one

felony conviction of . . . a crime of violence,” the guidelines

provide for an elevated base offense level of 20. See id.

§ 2K2.1(a)(4)(A).

The commentary accompanying § 2K2.1 notes that “crime

of violence” has the meaning given that term in § 4B1.2(a)

of the guidelines and application note 1 of the commentary

for that section. See id. § 2K2.1 cmt. n. 5. Section 4B1.2(a)

defines a “crime of violence” as

any offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that—

(1) has 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 the use of explosives, or otherwise involves
No. 02-2199 5

conduct that presents a serious potential risk of

physical injury to another.

Id. § 4B1.2(a) (emphasis added). The commentary for

§ 4B1.2(a) notes that “crime of violence” includes any offense for which “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.” Id. § 4B1.2 cmt. n. 1.

In United States v. Franklin, this Court held that the

crime of escape is a crime of violence for purposes of 18

U.S.C. § 924(e)—a provision with language identical to that

of § 4B1.2(a) of the sentencing guidelines—because escape

involves a “serious potential risk of physical injury to

another.” 302 F.3d 722, 725 (7th Cir. 2002) (quotation omitted). We said that in making such a risk determination,

“ ‘ the benchmark should be the possibility of violent confrontation, not whether one can postulate a nonconfrontational hypothetical scenario.’ ” Id. at 723 (quoting United

States v. Davis, 16 F.3d 212, 217 (7th Cir. 1994)).

In Franklin, we cited favorably to the decisions of other

circuits that had recognized the crime of escape as a crime

of violence, including the Tenth Circuit, which noted that

“[e]very escape scenario 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.” Id. at 724 (quoting United States

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

United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir.

2002) (noting every escape, even where the prisoner merely

walks away, involves a potential risk of injury to others);

United States v. Houston, 187 F.3d 593, 594-95 (6th Cir.

1999) (holding that escape from county workhouse or jail is

a violent felony because of potential risk of injury); United

States v. Hairston, 71 F.3d 115, 118 (4th Cir. 1995) (finding

escape by stealth “inherently” presents serious potential

risk of physical injury).
6 No. 02-2199

Bryant asks this Court to refine our decision in Franklin

by holding that not every crime of escape amounts to a

crime of violence. He urges this Court to instead follow a

fact-specific approach when determining if a particular

crime of escape should be categorized as a crime of violence.

Specifically, he argues that the type of escape with which he

was charged—failure to return to a halfway house after

being absent on a work release—is more appropriately

thought of as a “failure to return” than as an “escape.” According to his reasoning, a failure to return to a halfway

house after being absent with permission presents so much

less of a risk of violence that it must be considered different

and distinct from a “bust-out” or “slither-away” type of

escape.

Our decision in Franklin, however, forecloses that argument. In that case, we rejected the defendant’s argument

that escape convictions “cannot be categorically classified

as violent felonies because some prisoners escape without

causing harm to others.” Franklin, 302 F.3d at 724. We

noted that “[t]o determine whether a particular offense is

a violent felony, sentencing courts take a categorical approach, looking to the statutory elements of the crime,

rather than the particular facts of the underlying conviction.” Id. at 723 (citations omitted).

Bryant’s argument is also inconsistent with the commentary to the sentencing guidelines provision defining a

“crime of violence.” The commentary specifically notes that

it is “the conduct set forth (i.e., expressly charged) in the

count of which the defendant was convicted”—not the

particular facts of the defendant’s situation—that is relevant to the question of whether an offense is a “crime of

violence.” U.S.S.G. § 4B1.2 cmt. n.1. In addition, Bryant’s

approach risks opening the courts to countless arguments

as to whether a crime is actually an “escape” or merely a

“failure to return.” In a similar context, the Supreme Court

rejected such a fact-bound, case-by-case approach, noting
No. 02-2199 7

the “practical difficulties and potential unfairness of a factual approach.” Taylor v. United States, 495 U.S. 575, 601

(1990) (embracing a categorical approach to determining

whether an offense qualifies as a “violent felony” under 18

U.S.C. § 924(e)). We believe that treating the crime of

escape as a category avoids these difficult line-drawing

problems.

III. Conclusion

Because every escape involves “a serious potential risk of

physical injury to another,” we hold that the crime of escape, as a category, is a crime of violence for purposes of the

federal sentencing guidelines. Bryant’s previous escape

conviction, resulting from his failure to report back to a

halfway house, thus constitutes a crime of violence for

purposes of his sentencing. The sentence imposed by the

district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-13-02