1 The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-3979

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the District * of Minnesota. Eric Leonard Jackson, *
* Defendant - Appellant. *

___________ Submitted: October 23, 2009 Filed: February 16, 2010

___________ Before LOKEN, Chief Judge, MURPHY and MELLOY, Circuit Judges.

___________ MELLOY, Circuit Judge. Defendant Eric Leonard Jackson app eals from the judgment of the district
court 1 sentencing him to twenty-four months of imprisonment for a walkaway escape from a federal prison camp in violation of 18 U.S.C. § 751(a). We affirm.

In 2006, Leonard was sentenced to a to tal of 145 months of imprisonment for a drug offense and a supervised-release violati on. Less than one y ear later, he walked away from the federal prison camp in Duluth , Minnesota, and remained at large for-2- approximately seven months. Upon recapture , he pleaded guilty to violating § 751(a). The only contested issue at sentencing wa s whether his walkaway escape qualified as a crime of violence trigge ring the career-offender provisions of the U.S. Sentencing Guidelines. See U.S. Sentencing Guidelines Manual § 4B1.1(a)(2).

Jackson had a category IV criminal hist ory. His total offense level without application of the career-offender provisions was eleven, resulting in a guidelines range of eighteen to twenty-four months. His total offense level with application of the career-offender provisions was fourteen, re sulting in a guidelines range of thirtyseven to forty-six months.

Before Jackson's sentencing, the Suprem e Court issued its opinion in Begay v. United States , 128 S. Ct. 1581 (2008). Begay interpreted the residual or "otherwise" clause of the Armed Career Criminal Act ("ACCA") to cover only crimes similar to the ACCA's enumerated crimes "rather than everycrime that 'presents a serious potential risk of physical injury to another.'" Begay , 128 S. Ct. at 1585 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). The various fo rms of escape encompassed by § 751(a) are not enumerated offenses inthe ACCA or the guidelin es' career-offender provisions, and may only qualify as crimes of violence if they satisfy the residual clause. See United States v. Pearson , 553 F.3d 1183, 1186 (8th Cir. 2009) (collecting authority to illustrate various types of conduct en compassed by § 751(a)). Prior to Begay , our court had held that escapes , even walkaway escapes, qua lify as crimes of violence. See, e.g. , United States v. Nation , 243 F.3d 467, 472 (8th Cir. 2001).

At the time of Jackson's sentencing, a case pending before the Supreme Court involved the issue of whether an Illinois statute encompassing th e crimes of escape, failure to report for imprisonment, and failure to abide by the terms of home confinement satisfied the residual clause. See Chambers v. United States , 129 S. Ct. 687, 691 (2009) (discussing Ill. Comp. Stat., ch. 720 § 5/31-6(a)). At sentencing, Jackson relied on arguments presen ted by the defendant in Chambers and urged the2 We have recognized that § 751(a) de fines multiple different offenses, is therefore "overinclusive," and is subject to analysis as per the modified categorical approach of Shepard v. United States , 544 U.S. 13, 16–17 (2005). See, e.g. , United
-3- district court to hold that, in light of Begay , his § 751(a) conviction should not qualify as a crime of violence.

The district court rejected his argumen ts and concluded th at § 751(a) qualified as a crime of violence. Th e district court then carefu lly applied 18 U.S.C. § 3553(a), discussed several of the factors from that section, and imposed a sentence of twentyfour months' imprisonment. The district court specifically noted that this sentence would be appropriate even if the career-o ffender provisions were found inapplicable:

I will say for the purposes of the record that were my judgment wrong and it's ultimately determined that es cape is not a crime of violence for purposes of the career offender statute, I still believe that the sentence of 24 months would be appropriate unde r the circumstances, and so I want the record to reflect thateven with a change in the circumstances and a move to the guideline, I think the se ntence that I've given would still be a consistent judgment on what's appropriate under the circumstances.
Subsequently, the Supreme Court issued its opinion in Chambers . The Court held that an escape-related conviction based on a failure to report was not a predicate felony conviction under the ACCA because a failure to report is "a far cry" from the type of conduct associated with the enum erated crimes of the ACCA. Chambers , 129 S. Ct. at 692. The Court noted, however, th at "[t]he behavior that likely underlies a failure to report would seem less likely to i nvolve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody." Id. at 691. On appeal, Jackson relies on Chambers to challenge application of the careeroffender provisions in his case. He also ar gues that his sentence at the top of the noncareer-offender guidelines rangeis unreasonable. The government now concedes that § 751(a) does not qualify as a crime of violence. 2The government argues, however,States v. Pearson , 553 F.3d 1183, 1186 (8th Cir. 2009). We have not yet determined, however, whether a walkaway escape qualifie s as a crime of violence in light of Chambers and Begay . See United States v. Mills , 575 F.3d 833, 833 (8th Cir. 2009) (per curiam) (discussing § 751(a) in light of a sparse factual record and remanding for a district court to assess § 751(a) under Shepardin light of Chambers and Begay ). We have at least twice stated that Chambers "overrule[d] our precedent that all escape offenses are crimes of violence" but "[le ft] intact our precedent holding that escape from penal custody is a crime of violence." United States v. Hudson , 577 F.3d 883, 886 (8th Cir. 2009), cert. denied , ___ S. Ct. ___, 2010 WL 251493; see also Pearson , 553 F.3d at 1186. In Hudsonand Pearson , however, we were not dealing with walkaway escapes, and we have repeatedly noted that our court has not resolved this specific question post-Chambers . See Mills , 575 F.3d at 833 ("Pearson did not consider, however, whether a walkaway escape is a violent felony under Chambers and Begay . That question remains undecide d."); United States v. Parks , 561 F.3d 795, 798 (8th Cir. 2009) (p er curiam) ("Pearson did not consider whether a walkaway escape is a violent felony under Chambers and Begay; that remains an open question."). Given the government's concession on appeal in the present case, and given the clearly harmless nature of any possible error below, this is not an appropriate case for attempting to resolve whether a walkaway escape qualifies as a predicate offense in light of Chambers

. -4- that given the district court's clear statement as quoted above, any error regarding application of the career-offender provisions is harmless.

We agree with the government. Even if the district court were incorrect in holding that a § 751(a) conviction for a "w alkaway escape" qualifies as a crime of violence, a sentencing court's harmless e rror in applying the Guidelines does not require a remand. United States v. Henson , 550 F.3d 739, 740–41 (8th Cir. 2008). Here, the district court sentenced Jacks on below the career-offende r range and at the top of the range that woul d have applied had the district court found the careeroffender provisions inapplicable. The c ourt explained in de tail why it believed a twenty-four month sentence was appropriate given the circumstances of Jackson's escape and the duration of time he spent at large. The court also provided comments leaving no doubt that it would apply the same sentence regardless of whether the-5- career-offender provisions applied. Where "we have a clear record that the judge intended to impose the same sentence," id. at 742, and where the court "tak[es] into account the potential impact of th e specific error alleged," id. at 741, it is appropriate to treat the alleged error as harmless.

Also, because the sentence Jackson r eceived was within the non-career-offender guidelines range, his sentence would be en titled to a presumption of reasonableness if the lower range applied. SeeRita v. United States , 551 U.S. 338, 348 (2007) (identifying the standard for reasonablene ss review and holding th at appellate courts may treat within-guidelines-range sentences as presumptively reasonable). Finding nothing about his sentence unreasonable, we reject his arguments that the district court abused its discretion in applying § 3553(a) and sentencing him to twenty-four months' imprisonment. Id.

We affirm the judgment of the district court.

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