*After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the determination of this appeal. SeeFed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 6 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. BILLY ROSS MOUDY,

Defendant - Appellant. No. 96-7079, 96-7103

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

(D. Ct. No. 96-CR-19-S)

Submitted on the briefs: * Michael G. Katz, Federal Public Defender, and Vicki Mandell-King, Assistant Federal Public Defender, Office of the Federal Publ ic Defender for the District of Colorado and Wyoming, Denver, Colorado, for Defendant-Appellant. John Raley, U.S. Attorney, and Sheldon J. Sperling, Assistant U.S. Attorney, Office of the United States Attorney for the Easter n District of Oklahoma, Muskogee, Oklahoma, for Plaintiff-Appellee.- 2 -

Before PORFILIO, TACHA, and KELLY, Circuit Judges.
TACHA, Circuit Judge.

Defendant Billy Ross Moudy was convicted by a jury in the United States District Court for the Eastern District of Oklahomaof charges arising from his attempted robbery of a post office in Proctor, Okla homa. He was sentenced to a total of thirty years imprisonment, plus three year s of supervised release. Defendant now appeals his sentence, claiming (1) th at he was improperly sentenced under the Armed Career Criminal Act and ( 2) that he should have received a reduction for acceptance of responsibili ty. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm. I. Sentencing Under the Armed Career Criminal Act Review of a sentence enhancement under the Armed Ca reer Criminal Act is a legal issue subject to de novo review. See United States v. Barney , 955 F.2d 635, 638 (10th Cir. 1992). The district court sentenced Moudy under the Armed Career Criminal Act, 18 U.S.C. § 924(e), for his conviction under 18 U.S .C. § 922(g), possession of a firearm by a convicted felon. The Act provides fora minimum sentence of fifteen years and prohibits probation or suspended sentence s for persons convicted under1 We apply the Guidelines Manual in effect on the date the defendant was

sentenced. SeeU.S.S.G. § 1B1.11(a) (1995). Moudy was sentenced on September 19, 1996; the Guidelines Manual in effect at that time was the 1995 version.

2 Because the Act specifically identifies burglary as a “violent felony,” see18 U.S.C. § 924(e)(2)(B)(ii), Moudy does not contest the district court’s reliance on that conviction. - 3 - § 922(g) who have three previous convictions for a violent felony. See 18 U.S.C. § 924(e)(1); U.S. Sentencing Guidelines Manual (U.S .S.G.) § 4B1.4 (1995 1 ) (implementing the Act). The Act defines “violent f elony” as: any crime punishable by imprisonment for a term exc eeding one year . . . that --

. . . (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

. . . . 18 U.S.C. § 924(e)(2)(B) (emphasis added). Moudy’s record included prior convictions for three separate escapes from prison, one attempted escape, and a burglary. The district court found that all of the se convictions qualified as violent felonies under the Act. 2 Moudy argues that the court erred in treating hi s escapes and attempted escape as violent felonies. In determining that the escapes constituted prior v iolent felonies, the district court relied upon our decision in United S tates v. Gosling , 39 F.3d 1140 (10th Cir. 1994). In Gosling , we examined the sentencing guidelines’ career offender provisions, U.S.S.G. §§ 4B1.1 and 4B1.2, w hich also provide for sentencing enhancements based on prior violent felo ny convictions. The career- 4 -

offender provisions use the term “crime of violence ” rather than “violent felony,” but the pertinent part of the definition is identic al to that of a violent felony under § 924(e). Under the career offender provisions, “c rime of violence” may include any crime that “involves conduct that presents a s erious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(1)(ii). In G osling , we applied this language and held that an escape from prison constitutes a c rime of violence under the career offender provisions. See 39 F.3d at 1142-43. Moudy argues that the identical language in the Act should not be interpr eted to include escape as a violent felony. We disagree. Under either the Act or the career offender provis ions, it is not necessary that the defendant’s specific conduct actually resu lted in physical injury to another. We examine only whether his conduct prese nted “a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e) (2)(B)(ii); U.S.S.G. § 4B1.2(1)(ii) (emphasis added); see also Gosling , 39 F.3d at 1142 n.3. With this in mind, we stated in Gosling : [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 potent ial to do so. A defendant who escapes from a jail is likely to poss ess a variety of supercharged emotions, and in evading those trying to recapture him, may feel threatened by police officers, ordinary ci tizens, or even fellow escapees. Consequently, violence could erup t at any time. Indeed, even in a case where a defendant escapes fr om a jail by stealth and injures no one in the process, there is still a serious3Defendant emphasizes that the Sentencing Commission’s commentary to the

career offender provisions explains that the court should look at whether the crime, “by its nature,” involved a risk of physical injury to another, while the Act does not include the phrase “by its nature.” We do not find this difference significant. - 5 - potential risk that injury will result when officer s find the defendant and attempt to place him in custody. Gosling , 39 F.3d at 1142 (citations omitted); see also United States v. Mitchell , 113 F.3d 1528, 1533 (10th Cir. 1997) (following Gos ling ). The reasons we articulated in Gosling for holding escape to be a crime of violence apply to all escapes, whether or not violence was actually invol ved. Thus, an escape always constitutes “conduct that presents a serious potent ial risk of physical injury to another,” for the purposes of the Act as well as fo r the career offender provisions of the sentencing guidelines. 3 II. Acceptance of Responsibility Defendant next contends that he should have receive d a reduction in his sentence based on acceptance of responsibility. Un der the sentencing guidelines, the calculated offense level should be reduced “[i] f the defendant clearly demonstrates acceptance of responsibility for his o ffense.” U.S.S.G. § 3E1.1(a). Generally, a defendant “who puts the government to its burden of proof at trial by denying the essential factual elements of guilt” is not entitled to this reduction. U.S.S.G. § 3E1.1 cmt. 2. The Sentencing Commission ’s commentary explains that in rare situations, a defendant who goes to tr ial on issues other than factual- 6 -

guilt--for example, to challenge the constitutional ity of a statute--may still qualify for a reduction for acceptance of responsibility. See id . Moudy points out that although he went to trial, he acknowledged the fact ual basis for the charges and went to trial only to assert the insanity defense. “[T]he determination of the sentencing judge [regar ding acceptance of responsibility] is entitled to great deference on r eview.” U.S.S.G. § 3E1.1 cmt. 5. Moreover, because Moudy failed to raise his § 3E1.1 issue in the court below, in this case we review the trial court’s decision onlyfor plain error. See United States v. Ivy , 83 F.3d 1266, 1294-95 (10th Cir.) (stating that l egal questions involving application of the sentencing guidelines are reviewed only for plain error if not raised in district court), cert. denied , 117 S. Ct. 253 (1996). Under this standard, “the error must be particularly egre gious, as well as obvious and substantial.” Id. at 1295 (quoting United States v. Saucedo , 950 F.2d 1508, 1511 (10th Cir. 1991)). Conceding factual guilt does no t automatically entitle a defendant to an adjustment for acceptance of respon sibility as a matter of right.
See U.S.S.G. § 3E1.1 cmt. 3. After reviewing the reco rd, we find nothing in the facts that leads us to reverse the trial judge’s de cision on this matter. For these reasons, we AFFIRM the sentencing order e ntered by the district
court.