1 The Honorable Henry E. Autrey, United St ates District Judge for the Eastern District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-2180

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Ronnie Delvon Adams, *
* Appellant. *

__________ Submitted: November 15, 2005 Filed: March 23, 2006

___________ Before ARNOLD, BEAM, and RILEY, Circuit Judges.

___________ RILEY, Circuit Judge. Ronnie Delvon Adams (Adams) appeals the district court’s 1 decision to sentence him as an armed car eer criminal pursuant to th e Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). We affirm.

I. DISCUSSION The ACCA provides a sentence enhancemen t for individuals who have at least three prior convictions for a “violent felony.” Id. The ACCA defines a “violent-2- felony” as “any crime punishable by imprisonment for a term exceeding one year . . . that–(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) . . . otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B). The district court sentenced Adams as an armed career criminal becau se he has prior convictions for (1) tampering with a motor vehicle, inviolation of Mo. Rev. Stat. § 569.080.1(2); (2) failure to return to confinement, in violation of Mo. Rev. Stat. § 575.220; and (3) two second-degree assaults. Adams does not challenge that his two assault convictions constitute violent felonies unde r the ACCA, but he maintains his prior convictions for tampering witha motor vehicle and failure to return to confinement are not violent felonies under the ACCA.

A. Tampering With a Motor Vehicle Following our recent en banc decision in United States v. McCall , ___ F.3d ___, 2006 WL 625687 (8th Cir. March 15, 2006)], when dete rmining whether a prior conviction is a violent felony within th e meaning of the “otherwise involves” provision in § 924(e)(2)(B)(ii), we “first dete rmine whether the elem ents of that prior crime involved or described c onduct that necessarily entails a serious potential risk of physical injury” to another. Id. at *2 (internal quotation omitted). In Missouri, a person commits the crime of tampering with a motor vehicle if “[h]e or she knowingly receives, possesses, sells, alters, def aces, destroys or unlawfully operates an automobile . . . without the consent of the owner thereof.” Mo. Rev. Stat. §569.080.1(2). In United States v. Johnson , 417 F.3d 990, 997-99 (8th Cir. 2005), we analyzed whether this offense is a viol ent felony for purposes of the ACCA. We compared the offense of tampering by possession to tampering by operation, and reasoned “tampering by operation represents an escalated, and more dangerous, form of tampering by possession.” Johnson , 417 F.3d at 998. Under Missouri law, “[t]ampering by possession . . . differs from tampering by operation in that the former offense merely requires a defendant to en ter an automobile in a manner consistent with possession while the latter offense requi res a defendant to start the automobile’s-3- engine.” Id. We went on to hold “the risks a ssociated with tampering by operation are sufficient to warrant classifying it as a violent felony.” Id. at 999.

Because the Missouri crime of tamp ering with a motor vehicle is “overinclusive” in that tampering by ope ration involves conduct that presents a serious potential risk of physical injury to another, while tampering by possession does not, we next look to the judicial r ecord to determine whether Adams’s conduct involved tampering by operation. SeeMcCall , 2006 WL 625687, at *5-6 (noting the judicial record review is limited by Taylor v. United States , 495 U.S. 575, 602 (1990), and Shepard v. United States , 544 U.S. 13, 125 S. Ct. 1254, 1263 (2005)). According to the charging document introduced with the government’s sentencing memorandum in the case at bar, Adams “knowingly and without the consent of the owner unlawfully operated an automobile.” Because Adam s’s conduct involved ta mpering by operation, we hold the district court did not err in concluding Adams’s conviction qualified as a violent felony predicate offense under the ACCA. See Johnson , 417 F.3d at 997-99.

B. Failure to Return to Confinement In Missouri, a person commits the crime of failure to return to confinement if, “while serving [a] sentence for any crime wherein he is temporarily permitted to go at large without guard, he purposely fails to return to confinement when he is required to do so.” Mo. Rev. Stat. § 575.220.1. In United States v. Abernathy , 277 F.3d 1048 (8th Cir. 2002), we held “walkaway” es cape constitutes a violent felony under the ACCA. Id. at 1051 (relying on United States v. Nation , 243 F.3d 467, 472 (8th Cir. 2001), which held a “walkaway” escape is a crime of violence under U.S.S.G. § 4B1.2(a)). We see no material distinction between “walkaway” escape and failure to return to confinement. See United States v. Maddox , 388 F.3d 1356, 1368-69 (10th Cir. 2004) (relying on precedent holding escape is a violent felony for purposes of the ACCA and rejecting defendant’s argument that “failure to return [to prison] from the work-release program does not constitute a violent felony”), cert. denied , 125 S. Ct. 1689 (2005); cf. United States v. Winn , 364 F.3d 7, 12 (1st Cir. 2004) (holding2 Although not necessarily controlling, wegenerally apply cases construing what is a “crime of violence” under U.S.S.G. § 4B1. 2 when determining what is a “violent felony” under the ACCA. See United States v. Levering , 431 F.3d 289, 294 (8th Cir. 2005).
-4- “failure to return from a break at a ha lfway house” constitutes a “crime of violence” under U.S.S.G. § 4B1.2(a)(2)); United States v. Bryant , 310 F.3d 550, 553-54 (7th Cir. 2002) (holding same with regard to “f ailure to return to a halfway house after being absent with permission”). 2 We therefore hold the district court did not err in concluding Adams’s conviction for failure to return to confinement qualified as a violent felony predicate offense under the ACCA.

II. CONCLUSION For the reasons stated, we affirm Adams’s sentence.

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