In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2949

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TODD A. TEMPLETON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07-CR-18-C—Barbara B. Crabb, Chief Judge.

____________

ARGUED APRIL 16, 2008—DECIDED SEPTEMBER 9, 2008

____________

Before EASTERBROOK, Chief Judge, and WOOD and

WILLIAMS, Circuit Judges.

EASTERBROOK, Chief Judge. Although the principal issue

in this appeal concerns the scope of the career-offender

sentencing guideline after Begay v. United States, 128 S. Ct.

1581 (2008), Todd Templeton begins with a challenge to

his conviction. When pleading guilty to two bank robberies, 18 U.S.C. §2113, Templeton reserved the right to

challenge the seizure of evidence from his car. See Fed. R.
2 No. 07-2949

Crim. P. 11(a)(2). The district judge denied his motion to

suppress the evidence, and properly. Templeton threatened to shoot a teller during the first robbery. Police

knew that Templeton was their man because both his

mother and his ex-wife told them that he had robbed

the bank. When the police saw a pellet-gun wrapper in

his car, they had probable cause to believe that the car

contained a weapon, if not loot. See Illinois v. Gates, 462

U.S. 213 (1983). Templeton thinks that the police should

have disregarded his statement to the teller. Maybe he

was lying about having a gun, but the police were entitled

to find out. The threat, the wrapper in plain view, and

Templeton’s ownership of the car were enough to

supply probable cause to believe that it contained evidence. (In light of Carroll v. United States, 267 U.S. 132

(1927), and its successors, Templeton does not argue

that a warrant was required.)

Templeton was sentenced to 235 months’ imprisonment

as a career offender. Congress has required the Sentencing

Commission to ensure that such a criminal is sentenced

at or near the statutory maximum. 28 U.S.C. §994(h). A

person is a career offender when “the instant offense of

conviction is a felony that is either a crime of violence or

a controlled substance offense; and . . . the defendant

has at least two prior felony convictions of either a crime

of violence or a controlled substance offense.” U.S.S.G.

§4B1.1.

(a) The term “crime of violence” means any

offense under federal or state law, punishable by

imprisonment for a term exceeding one year,
No. 07-2949 3

that—(1) has as 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 use of explosives, or

otherwise involves conduct that presents a serious

potential risk of physical injury to another.

U.S.S.G. §4B1.2. Templeton acknowledges that bank

robbery, his “instant offense of conviction”, is a crime of

violence. He argues, however, that he does not have “two

prior felony convictions of either a crime of violence

or a controlled substance offense.”

Templeton had been convicted of four felonies before

the robberies: escape from prison (twice), failing to report

to jail, and drunk driving. Under this circuit’s precedents,

each of these offenses is a “violent felony” for the purpose

of 18 U.S.C. §924(e). See United States v. Franklin, 302

F.3d 722 (7th Cir. 2002) (escape); United States v. Golden, 466

F.3d 612 (7th Cir. 2007) (“escape” by failing to return

from furlough, or failure to report for imprisonment);

United States v. Sperberg, 432 F.3d 706 (7th Cir. 2005) (felony

drunk driving). Section 924—a part of the Armed Career

Criminal Act—defines “violent felony” in the same way

as §4B1.2 defines “crime of violence”, and we interpret

§4B1.2 in the same way as §924(e). See United States v.

Upton, 512 F.3d 394, 404 (7th Cir. 2008); United States v.

Howze, 343 F.3d 919, 924 (7th Cir. 2003). At the time

the district court sentenced Templeton, therefore, he

had four convictions for crimes of violence, twice the

requirement for career-offender status. But Begay requires us to rethink the subject.
4 No. 07-2949

Begay dealt with felony drunk driving, the subject of

Sperberg. (Many states, including Wisconsin, treat

driving while intoxicated as a felony when the driver is

a recidivist or a serious injury ensues.) Drunk driving

does not have the use of physical force as an element of

the crime. Thus the Court asked whether drunk driving

came within §924(e)(2)(B)(ii), which covers conduct “that

presents a serious potential risk of physical injury to

another.” The Court acknowledged that drunk driving

does present such a risk—but it added that not all risky

activity fits within subsection (ii). Applying the ejusdem

generis canon, the Court held that a crime comes within

subsection (ii) only if it is “similar” to the offenses listed

in the subsection: burglary of a dwelling, arson, extortion,

and the use of explosives. The Court thought that these

crimes have in common “purposeful, ‘violent,’ and ‘aggressive’ conduct.” Begay, 128 S. Ct. at 1586. Drunk driving

may be intentional, but it is not intentionally violent

or aggressive and so does not fit, the Court held.

Perhaps Begay has broken the link between §924(e) and

§4B1.2. The Court noted that §924 is part of the Armed

Career Criminal Act, which implies a focus “upon the

special danger when a particular type of offender—a

violent criminal . . .”—possesses a gun. Begay, 128 S. Ct. at

1587. Section 4B1.1, the “career offender” guideline, does

not single out armed criminals. Nevertheless, the Court

interpreted the words of §924(e), which the Sentencing

Commission repeated verbatim in §4B1.2. It would be

inappropriate to treat identical texts differently just

because of a different caption. This means—as the prosecutor conceded in a post-argument memorandum—that
No. 07-2949 5

Templeton’s conviction for drunk driving is not a “crime

of violence” under §4B1.2.

Whether Begay affects the classification of Templeton’s

other convictions is a harder question. Our pre-Begay

approach to escapes, and similar offenses, asked whether

a particular crime posed a significant risk of physical

injury. Even before Begay, we had expressed some doubt

about the affirmative answer that our initial decisions had

given on the basis of armchair empiricism. Escapes may

well lead to injuries—either when the prisoner makes the

bid for freedom or when he is recaptured (escape is a

continuing offense, so the risks of recapture are properly

included in the calculus). But when a statute inquires into

risk, data trump judicial guesses.

[I]t is an embarrassment to the law when judges base

decisions of consequence on conjectures, in this case

a conjecture as to the possible danger of physical

injury posed by criminals who fail to show up to

begin serving their sentences or fail to return from

furloughs or to halfway houses.

United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007).

Chambers announced that our classification of escapes was

provisional and would be reexamined if data could be

assembled. Estimates may be essential and must suffice

when data are unavailable or inconclusive (as crime

statistics often are), and a statutory classification such

as the one in §924(e)(2)(B)(i) always prevails. But when

the legislature requires judges to assess “risk”, as

§924(e)(2)(B)(ii) does, provisional estimates must yield

to better sources of knowledge.
6 No. 07-2949

Templeton hired an expert to collect and analyze statistics about escapes in Wisconsin. The expert discovered that

about 11% of those convicted of felony failure to report

under Wis. Stat. §946.425, and 15% of those convicted of

escape under Wis. Stat. §946.42(3), also are charged under

one of four statutes punishing some form of resisting

arrest: Wis. Stat. §946.41 (resisting or obstructing an

officer), Wis. Stat. §946.415 (failure to comply with an

officer’s attempt to take a person into custody), Wis. Stat.

§346.04 (vehicular eluding), and Wis. Stat. §940.20(2)

(battery of a law officer). According to Templeton, this

shows that escapes do not pose a “serious potential risk

of physical injury” and so are not crimes of violence.

The problem with this argument is the assumption that

a 11% to 15% chance of violent resistance to recapture

does not create a “serious” risk. Drawing on the approach

to burglary’s risks in Taylor v. United States, 495 U.S. 575

(1990), we held in Howze that a 2% incidence of injury

from a crime renders the risk “serious.” That’s another

example of ejusdem generis. Section 924(e)(2)(B)(ii) gives

residential burglary as an example of a crime that creates

the level of risk that Congress deemed sufficient. Burglary

rarely leads to physical injury; a careful burglar tries to

ensure that no one is at home before breaking in. But

sometimes the burglar is mistaken, and on other

occasions the owner comes home while the burglary is

in progress. Then there may be a confrontation and an

injury. The Supreme Court has held that even attempted

burglary creates a serious potential risk of violence. James

v. United States, 127 S. Ct. 1586 (2007). Crimes that create
No. 07-2949 7

roughly the same magnitude of risk as burglary satisfy

§924(e)(2)(B)(ii).

True, the numbers Templeton reports are not conclusive.

Not every episode of resisting arrest results in injury. The

rate of injury from escapes and failures to report equals the

fraction of escapes resulting in resistance on apprehension

(or a confrontation on departure) times the fraction of those

occurrences that end in physical injury. Unless every

incident of resisting arrest leads to injury, the percentage

of escapes that result in injury could be less than what

Templeton reports. Not every escapee is caught or

charged, further reducing the first fraction. At the same

time, some risk-creating acts on departure or recapture

may go uncharged; other forms of violence may accompany an escape. Still other escapes may be overcharged:

That an indictment alleges forceful resistance to arrest

does not establish that violence occurred. Thus the

actual rate of injury from escapes could be higher or

lower than the 11% to 15% range.

A little independent research using data compiled by the

Department of Justice shows lower rates of injury. For

1993, of 802 escapes from prison, 5 ended in death and 33

in injury. Three of the deaths, and 13 of the injuries, were

to the prisoner, so the risk to guards and bystanders was

about 2.7%. (The statute speaks of risk to “another”, so

harm to the offenders must be disregarded.) In 1984 there

were 893 escapes, leading to the deaths of 8 guards or

bystanders, and 6 injuries, for 1.6% risk. See United States

Department of Justice National Criminal Justice Referral

Service, Survey: Escapes from Correctional Facilities, 10
8 No. 07-2949

Corrections Compendium 11–15 (1986); Prison Escapes and

Violence Remain Down, 19 Corrections Compendium 6–21

(1994). A recent comprehensive study gives higher rates.

Richard F. Culp, Frequency and Characteristics of Prison

Escapes in the United States: An Analysis of National Data, 85

Prison J. 270 (2005), concludes that 8% of escapees

commit violence against guards in the process of getting

away, and that at least 6% of escapees commit violent

crimes such as murder or robbery against civilians while

on the lam. By contrast, walkaways produced no deaths

or injuries.

These numbers show that escapes (other than walkaways) generate a sufficient risk of injury to count

as crimes of violence. See also United States v. Billups,

No. 07-2037 (7th Cir. July 29, 2008) (false imprisonment

creates a serious risk of injury and must be treated as a

crime of violence on that account). Chambers observed

that judges should rely on data rather than conjecture.

Even if data do not perfectly describe the actual injury

rate, they let us estimate the rate with more confidence

than before.

Readers of this opinion are entitled to wonder at this

point why we have bothered to evaluate the risk from

escape and failure to report for custody. After all, Begay

holds that risk is insufficient—but although risk of injury

is insufficient, it is necessary if the offense in question is

sufficiently “like” the list (burglary, arson, extortion, and

the use of explosives) to pass the ejusdem generis filter.

Shortly after deciding Begay, the Court granted certiorari

in Chambers, 128 S. Ct. 2046 (2008), and set that case for
No. 07-2949 9

plenary review rather than remanding for reconsideration in light of Begay. The data gathered in this case

permit us to fill the empirical void that Chambers noted

and may facilitate the Supreme Court’s decision. But

Begay also shows that this court’s approach in Chambers

and earlier cases was incomplete, because we did not

ask whether escapes and failures to return are

sufficiently similar to the listed offenses.

It isn’t hard to see how some escapes could meet the

standard laid down in Begay. If a prisoner fashions a homemade knife (a shank) and uses it to injure or threaten a

guard in order to get away, the escape will meet the

Court’s standard. Escapes that entail violence (or the

threat of violence) directed against a guard, or an officer

attempting to recapture the escapee, are more dangerous

than burglary or extortion and involve “purposeful,

‘violent,’ and ‘aggressive’ conduct” (Begay, 128 S. Ct. at

1586).

The problem is that many escapes don’t depend on

aggression. A furloughed prisoner’s failure to return is a

form of escape. So is a prisoner’s walkaway from a

halfway house or a camp that lacks fences. We know

from Taylor and Shepard v. United States, 544 U.S. 13 (2005),

that to classify a crime under §924(e) we must look at

how an offense is defined by statute, not at what the

offender did in fact. See also United States v. Shannon, 110

F.3d 382, 384–85 (7th Cir. 1997) (en banc). Here is the

relevant text of Wis. Stat. §946.42, the escape offense of

which Templeton was twice convicted:

A person in custody who intentionally escapes

from custody under any of the following circum-
10 No. 07-2949

stances is guilty of a Class H felony: (a) Pursuant to

a legal arrest for, lawfully charged with or convicted of or sentenced for a crime.

. . .

“Custody” includes . . . the constructive custody of

persons placed on supervised release . . . or . . .

temporarily outside the institution whether for the

purpose of work, school, medical care, a leave

granted under s. 303.068, a temporary leave or

furlough granted to a juvenile, or otherwise.

. . .

“Escape” means to leave in any manner without

lawful permission or authority.

The definition includes prisoners let out for a specific

purpose who do not return as instructed, cf. Wisconsin v.

Magnuson, 233 Wis. 2d. 40, 606 N.W.2d 536, 540–41 (2000),

or who leave unsupervised confinement, such as house

arrest, Wis. Stat. §302.425(6). Wisconsin allows prisoners to

leave certain forms of confinement temporarily “for

employment, education or other rehabilitative activities.”

Wis. Stat. §301.046(5). If a prisoner intentionally fails

to return from this furlough, he is guilty of escape

without so much as moving a muscle. See Wis. Stat.

§302.425(6).

A walkaway is not a crime of violence under Begay. Nor

is a simple failure to report to custody, which violates Wis.

Stat. §946.425. These offenses do not involve “aggressive”

conduct against either a person (as in extortion) or property (arson). All the Wisconsin statute requires is that the

escapee “leave”. The crime does not require any violent or
No. 07-2949 11

aggressive act. Although the statute does require intent,

the required mental state is only intent to be free of custody, not intent to injure or threaten anyone. It is easy

to violate Wis. Stat. §946.42 without intending or accomplishing the destruction of property or acting in an aggressive, violence-provoking manner that could

jeopardize guards or bystanders.

It will not do to argue, as the prosecutor does, that escape

is enough like burglary to make it a crime of violence.

Doubtless for both crimes there is a chance the criminal

will confront another person with violent results: the

building’s occupant for burglaries and the guards or

police for escapes. But Begay requires the crime to be

aggressive or violent. All the prosecutor identifies is a

common result: in both cases injuries may follow confrontations. Begay requires similarities other than risk of injury. That’s why Begay held that drunk driving is not a

“violent felony” despite the substantial risk of injury that

ensues.

Nor does the fact that both crimes contain an intent

element render them similarly violent. Burglary requires

both the intent to enter a building and the intent to commit

a crime once inside. This second intent is what makes

burglary “purposeful, ‘violent,’ and ‘aggressive’ ” in all

cases. It involves intentionally encroaching on another’s

property or person, or intentionally injuring another’s

property or person. By contrast, many escapes under

Wisconsin law are passive.

So it is possible to violate Wis. Stat. §946.42 in a manner

that constitutes a crime of violence under §4B1.1, and
12 No. 07-2949

possible to do so in a way that is not. Taylor holds that

when a state statute can be violated in a way that is, or is

not, the basis of federal recidivist treatment, a court may

look at the indictment or other charging papers to determine in what way the defendant committed the offense.

For other illustrations of this principle, see Shannon, Howze,

Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003), and United

States v. Spells, 2008 U.S. App. LEXIS 16861 at *10–28 (7th

Cir. Aug. 8, 2008). The record does not contain the

charging papers for Templeton’s prior convictions. (They

were not essential under this court’s pre-Begay decisions;

neither counsel nor the district judge can be faulted

for failing to include them.) A remand therefore is necessary to determine whether Templeton’s escapes are

crimes of violence. Because Templeton has two prior

convictions for escape, he can still qualify as a career

offender under §4B1.1.

The district judge should find out—if the charging

papers and other documents that may be considered

under Taylor and Shepard reveal this fact—whether the

crimes of which Templeton was convicted are jailbreaks

or otherwise involve the sort of active and aggressive

conduct that Begay requires. If not, or if the issue was not

addressed by the charging papers and equivalent documents, then the convictions must not be classified as

crimes of violence.

We must address one last issue before closing. Both the

prosecutor and Templeton have asked us to hold this

appeal for the Court’s decision in Chambers. But the data

in this record allow an evaluation of risk in a way that the
No. 07-2949 13

record in Chambers did not. It seems best for this circuit

to state its current understanding of not only the risk of

these crimes but also the way that Begay affects our precedents. If we have misunderstood Begay, the Supreme

Court will tell us. In the meantime the substantial

volume of prosecutions that present issues under §924(e)

or §4B1.1 can be resolved.

Templeton’s conviction is affirmed. His sentence is

vacated, and the case is remanded for further consideration in light of this opinion.

9-9-08