* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### FEB 5 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ADAM GREGORY ORR, Defendant-Appellant. No. 98-6104 (D.C. No. CR-97-172-A) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

Defendant Adam Gregory Orr appeals his conviction and sentence for attempted escape from county jail. We exercise jur isdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm.
I. On August 3, 1997, Orr was incarcerated in a single occupancy cell on the tenth floor of the Oklahoma County Jail awaiting se ntencing on federal firearms-2-

convictions. Orr had a non-contact visit with his mother that afternoon at the jail. After she left, Orr told a correctional officer that he had information about a possible escape attempt. During the conversion, Orr admitted he had been planning the escape but that his mother had convinc ed him to abandon the plan. Orr divulged all of the details of the escape plan because he thought the authorities “would be easier on him if he came forw ard and confessed.” Record
III at 37. Orr was indicted for attempted escape, in violationof 18 U.S.C. § 751(a). Prior to trial, the government gave notice pursuantto Fed. R. Evid. 404(b) that it intended to introduce evidence of Orr’s previous un charged escape and illegal possession of contraband offenses. Orr responded w ith a motion in limine to exclude all such evidence as irrelevant and unduly prejudicial. The district court determined the probative value of the 404(b) eviden ce was not substantially outweighed by its potential for unfair prejudice an d authorized admission of certain relevant conduct. A jury found Orr guilty of attempted escape and he was sentenced to thirty months’ imprisonment.
II. Sufficiency of evidence Orr contends there was insufficient evidence to sup port his conviction. Sufficiency of the evidence is a question of law su bject to de novo review.-3-

United States v. Carter , 130 F.3d 1432, 1439 (10th Cir. 1997), cert. denied , 118 S. Ct. 1856 (1998). Evidence is sufficient to supporta conviction if the evidence and all reasonable inferences derived therefrom, vi ewed in a light most favorable to the government, would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt. Id. In undertaking this analysis, we do not scrutiniz e individual pieces of evidence in isolation; rather, we examine the sufficiency of the evidence by “considering the collective inferen ces to be drawn from the evidence as a whole.” Id. We will reverse a defendant’s conviction only if no reasonable jury could have reached the disputed verdict. Id. To secure a conviction under 18 U.S.C. § 751(a), th e government must prove beyond a reasonable doubt that defendant (1) escaped or attempted to escape, (2) from the custody of the Attorney Genera l or from an institution in which he was confined by the Attorney General, (3) where the custody or confinement was by virtue of an arrest on a felony charge or conviction of any offense. United States v. Dickerson , 77 F.3d 774, 776 (4th Cir. 1996); United States v. Davis , 8 F.3d 923, 927 (2d Cir. 1993); United States v. Harper , 901 F.2d 471, 473 (5th Cir. 1990); United States v. Vanover , 888 F.2d 1117, 1121 (6th Cir. 1989). Orr challenges only the first prong of this test, contending he did not attempt to escape.-4- A person is guilty of attempt if, acting with the k ind of culpability otherwise required for commission of th e crime, he purposely does or omits to do anything which, underthe circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of cond uct planned to culminate in his commission of a crime. Davis , 8 F.3d at 927 (citations and alterations omitted) . Thus, the crime of attempt requires proof of (1) the requisite crimina l intent, and (2) an act or omission marking a “substantial step” in furtheranc e of the substantive offense. United States v. Sullivan , 919 F.2d 1403, 1429 (10th Cir. 1990). The thresh old substantial step must entail “conduct strongly corr oborative of the firmness of the defendant’s criminal intent.” United States v. Savaiano , 843 F.2d 1280, 1296 (10th Cir. 1988). Orr insists he did little more than engage in preparation for a possible escape and did not take any substantial steps to co nsummate his intentions. The dividing line between preparation and attempt is di fficult to discern. Conduct may amount to a substantial step if it is “somethin g more than mere preparation, yet [perhaps] less than the last act necessary befo re the actual commission of the substantive crime.” Davis , 8 F.3d at 927 (quotations omitted). Therefore, t he inquiry is highly fact specific. See United States v. DeSantiago-Flores , 107 F.3d 1472, 1479 (10th Cir. 1997), overruled on other grounds in United States v. Holland , 116 F.3d 1353 (10th Cir. 1997). We have noted th e substantial step test shifts the emphasis from what remains to be done, the chief concern-5-

of the proximity tests, to what the actor has already done. That further major steps must be taken before the crime can be completed does not preclude a finding that the steps already undertaken are substantial. It is expected, in the normal case, that this app roach will broaden the scope of attempt liability. Savaiano , 843 F.2d at 1297. Viewed in the light most favorable to the government, there is ample evidence to support defendant’s attempted escape conviction. In United States v. Prichard , 781 F.2d 179, 181-82 (10th Cir. 1986), we held th e reconnoitering of the object of a crime, combined with the collection of instruments to be used in that crime, constituted a “substantial step” for pu rposes of an attempt offense. Orr’s acts easily satisfy that test. At the time o f his “confession,” Orr had developed an elaborate plan of escape, had spent mo re than a week engineering a digging tool from his desk, had dug a hole in the w all between his cell and an adjacent cell, and had constructed a makeshift rope from prison blankets. As the district court correctly observed in its sentencing order, only minor details remained for Orr to successfully complete his escap e. There was sufficient evidence to support the conviction.

Rule 404(b) evidence Orr argues the district court erroneously admitted evidence of his prior escape and prior possessions of contraband under Fe d. R. Evid. 404(b), which1 The district court permitted Orr to maintain a st anding objection to the

404(b) evidence. We have severely criticized use o f continuing objections, (continued...) -6- provides in relevant part:

Evidence of other crimes, wrongs, or acts is not ad missible to prove the character of a person in order to show ac tion in conformity therewith. It may, however, be admissible for othe r purposes, such as proof of motive, opportunity, intent, preparatio n, plan, knowledge, identity, or absence of mistake or accident. We review the district court’s decision to admit Ru le 404(b) evidence for an abuse of discretion. United States v. Hardwell , 80 F.3d 1471, 1488 (10th Cir. 1996). There are four requirements for admissibility underRule 404(b): (1) evidence of other crimes, wrongs, or acts must be i ntroduced for a proper purpose; (2) the evidence must be relevant; (3) the court must make a Rule 403 determination whether the probative value of the si milar acts is substantially outweighed by its potential for unfair prejudice; a nd (4) the court, upon request, must instruct the jury that the evidence of similaracts is to be considered only for the limited purpose for which it was admitted. Huddleston v. United States , 485 U.S. 681, 691-92 (1988); United States v. Fitzherbert , 13 F.3d 340, 343 (10th Cir. 1993). The district court conducted a hearing and determined the evidence could be used to show Orr’s plan, intent, knowledge, moti ve, and absence of mistake with regard to the attempted escape charge. 11 (...continued)

particularly with respect to evidence offered pursuant to Rules 403 and 404. See United States v. McVeigh , 153 F.3d 1166, 1199-1201 (10th Cir. 1998). Nevertheless, we proceed under the assumption that Orr sufficiently preserved his objections to the 404(b) evidence. -7- Orr’s theory in this case was that he abandoned his escape attempt. Although neither side broaches the issue, it is notclear that abandonment is a valid defense to an attempt crime. The problem wit h such a defense is that a defendant may have taken the requisite “substantial step” in furtherance of the crime, thus completing the attempt, before deciding to renounce or abandon consummation of the offense. United States v. Shelton , 30 F.3d 702, 705 (6th Cir. 1994). If abandonment is a proper affirmative defense to an attempt crime, Orr’s prior escape and contraband possession charges were correctly admitted to rebut his abandonment theory. The evidence underscored that Orr’s conduct was not an isolated occurrence, but was part of a longstanding plan/intent to escape from custody. The government sought to show the only re ason Orr revealed his escape plans was because his mother informed him officials had increased pressure on her and were planning to increase their surveillanc e of Orr. Considering Orr’s mother had facilitated an earlier escape, the evide nce was particularly important to show his motivations for disclosing his plans. If abandonment is not a valid defense, Orr’s prior bad acts are still relevant.-8-

His prior escape and prior possession of contrabandhighlight his planning, preparation, and intent to flee. His repeated comm ents to jail officials regarding his steadfast intent to escape buttress this eviden ce. The fact that Orr employed a different method of escape and utilized tools uniqu e from those found in his possession earlier is irrelevant. See United States v. Archer , 843 F.2d 1019, 1023-24 (7th Cir. 1988). Each incident reflects hi s desire and intent to escape and demonstrates his knowledge regarding specific m odes of escape. By insisting he had renounced any escape plans, Orr put his inte nt directly at issue and the government had every right to attack this theory wi th evidence of prior escape attempts. See Hardwell , 80 F.3d at 1489 (government may admit prior bad a cts under 404(b) to show predisposition when defendant raises entrapment defense). As Orr’s intent was a disputed and critical issue i n this case, the district court did not abuse its discretion in admitting evidence of p rior bad acts pursuant to 404(b).

Sentencing Orr contends the district court improperly applied the sentencing guideline for escape, U.S.S.G. § 2P1.1, rather than the guide line for attempt, U.S.S.G. § 2X1.1. We review the district court’s legal interp retation of the sentencing guidelines de novo and its findings of fact in appl ying the guidelines for clear error. United States v. Valdez , 158 F.3d 1140, 1141 (10th Cir. 1998).-9-

The actual source of Orr’s concern rests in the dis trict court’s refusal to grant a three-level reduction pursuant to § 2X1.1(b )(1). Under the general attempt guideline, the court must apply the “base o ffense level from the guideline for the substantive offense [§ 2P1.1], plus any adj ustments from such guideline for any intended offense conduct that can be establ ished with reasonable certainty.” U.S.S.G. § 2X1.1(a). Here, the court correctly applied a base offense level of 13, as derived from § 2P1.1. The attempt guideline also contemplates a reduction in the base offense level for certain eligible defendants:

If an attempt, decrease by 3 levels, unless the def endant completed all the acts the defendant believed neces sary for successful completion of the substantive offense orthe circumstances demonstrate that the defendant was about to complet e all such acts but for apprehension or interruption by some similar event beyond the defendant’s control. Id. § 2X1.1(b)(1). The district court acknowledged th is provision, but determined Orr was not entitled to such a reduction:

The evidence at trial demonstrated that the defenda nt was about to complete all acts necessary for the escape “but for apprehension or interruption by some similar event beyond the defendant’s control.” Only minor details remained for defendant to successfully complete his escape. The evidence at trial was that defendant did not voluntarily abandon his escape but did so only after it became clear that he would probably be cau ght if he attempted to escape. Therefore, pursuant to U.S.S. G. § 2X1.1(b)(1), no decrease is warranted. Record I, Doc. 26 at 4. We see no clear error in t his assessment of the facts.-10-

At oral arguments, Orr insisted he was entitled to a three-point reduction pursuant to § 2X1.1(b)(1) because nothing beyond his control contributed to interruption of his plans or to his apprehension. We disagree. ATF agents had visited the home of Orr’s mother only two days prio r to Orr’s confession. During her visit to the jail, Orr’s mother pressured Orr t o disclose his escape intentions. This evidence is sufficient to support a finding of “constructive apprehension.” The record suggests the primary reason Orr opted no t to carry out the final stages of his escape attempt was because he feared capture by authorities. In most prosecutions for conspiracies or attempts, the substantive offense was substantially completed or was interrup ted or prevented on the verge of completion by the intercession of l aw enforcement authorities or the victim. In such cases, no reduc tion of the offense level is warranted. Sometimes, however, the arrestoccurs well before the defendant or any co-conspirator has comp leted the acts necessary for the substantive offense. Under such circumstances, a reduction of 3 levels is provided under § 2X1.1(b)( 1) or (2). U.S.S.G. § 2X1.1, comment (backg’d). The Sentencin g Commission felt “near accomplishment of the criminal object” implicated asufficiently high degree of actual harm and revealed a sufficient degree of cul pability to justify the identical punishment that would be imposed for a completed crime. United States v. Chapdelaine , 989 F.2d 28, 36 (1st Cir. 1993). “It is nearness of the crime to achievement--not the precise nature of the involunt ary interruption--that defeats the reduction available for conspiracies and attemp ts that have not progressed very far.” Id. ; accord United States v. Medina , 74 F.3d 413, 419 (2d Cir. 1996).-11-

Orr was on the verge of completing the final acts o f his attempted escape when his mother visited him in jail. The district courtdid not err in denying a threelevel reduction under § 2X1.1(b)(1). Orr’s conviction and sentence are AFFIRMED. Entered for the Court Mary Beck Briscoe Circuit Judge