PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4333

ANDREW JERMAINE BETHEA,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Florence.

R. Bryan Harwell, District Judge.

(4:08-cr-00872-RBH-1)

Argued: March 25, 2010

Decided: April 27, 2010

Before TRAXLER, Chief Judge, and GREGORY and

SHEDD, Circuit Judges.

Vacated and remanded by published opinion. Judge Gregory

wrote the opinion, in which Chief Judge Traxler and Judge

Shedd joined.

COUNSEL

ARGUED: Michael A. Meetze, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Florence, South Carolina, for Appellant. Carrie Ann Fisher, OFFICE OF THE UNITED STATES
ATTORNEY, Florence, South Carolina, for Appellee. ON

BRIEF: W. Walter Wilkins, United States Attorney, Columbia, South Carolina, Rose Mary Parham, Assistant United

States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Florence, South Carolina, for Appellee.

OPINION

GREGORY, Circuit Judge:

South Carolina makes it a crime "to escape," and broadly

defines the term to include both unlawfully leaving and failing to report to custody. S.C. Code Ann. § 24-13-410(A)

(2009). We consider two questions regarding the relationship

between this statute and the Armed Career Criminal Act

("ACCA"), 18 U.S.C. § 924(e) (2006), in this appeal: First,

whether a conviction under the state’s escape statute necessarily constitutes a "violent felony" under the ACCA. And second, if it does not, whether this defendant’s conviction

necessarily involves the type of violent conduct contemplated

by the ACCA.

In light of the Supreme Court’s decision in Chambers v.

United States, 129 S. Ct. 687 (2009), we hold that a conviction under South Carolina’s escape statute does not inherently

constitute a violent felony. Further, because we cannot determine whether the defendant’s conduct here necessarily violated the statute in a way that would bring him under the

ACCA’s ambit, we vacate his sentence and remand to the district court for proceedings consistent with this opinion.

I.

The defendant, Andrew Jermaine Bethea ("Bethea"), challenges his 180-month prison sentence, imposed after he pled

guilty to being a felon in possession of a firearm, in violation

2 UNITED STATES v. BETHEA
of 18 U.S.C. § 922(g)(1). The district court enhanced

Bethea’s sentence after determining that he had three prior

ACCA-predicate convictions.

Under the ACCA, a defendant who is convicted of being a

felon in possession of a firearm and who has "three previous

convictions . . . for a violent felony or a serious drug offense,

or both, committed on occasions different from one another,"

is subject to a fifteen-year mandatory minimum prison sentence. § 924(e)(1). The ACCA defines a "violent felony" as a

"crime punishable by imprisonment for a term exceeding one

year" that either

(i) has as an element the use, attempted use, or

threatened use of physical force against the

person of another; or

(ii) is burglary, arson, or extortion, involves the use

of explosives, or otherwise involves conduct

that presents a serious potential risk of physical

injury to another.

§ 924(e)(2)(B).

Before the district court, Bethea did not dispute that two of

his prior convictions were ACCA-predicate offenses; however, he argued that his conviction for violating South Carolina’s escape statute was not. The district court disagreed,

finding that Bethea’s conviction was a violent felony within

the meaning contemplated by the ACCA. Though it apparently agreed that escape, as defined by South Carolina, is not

a categorically violent crime, it found that Bethea violated the

statute in a way that would constitute a violent crime after

considering the relevant charging and judicial documents. It

therefore enhanced Bethea’s sentence in accordance with the

ACCA. Bethea timely appealed.

UNITED STATES v. BETHEA 3
II.

a.

When deciding whether an offense constitutes a violent felony under the ACCA, the Supreme Court has made clear that

our first step is to determine which of two, potentially applicable interpretive methods applies to the challenged statute.

First, we are to consider whether the statute proscribes conduct that "as generally committed" includes an element of

violence. Chambers, 129 S. Ct. at 690; Taylor v. United

States, 495 U.S. 575, 598 (1990). Under this categorical

approach, the way in which a particular defendant violated the

statute on the particular day in question is irrelevant; the only

question is whether the statutory language proscribes conduct

that involves violence when the offense is considered generically. Chambers, 129 S. Ct. at 690.

Where, however, a statute broadly criminalizes conduct

that could be "generally committed" in multiple ways, some

violent and some not, the categorical approach is inapplicable.

Id.; Taylor, 495 U.S. at 599. Under this so-called, "modifiedcategorical" approach, a court is entitled to review "charging

documents filed in the court of conviction, or [ ] recorded

judicial acts of that court," to determine whether the defendant’s crime "necessarily" constituted the type of generic conduct that would implicate the ACCA. Shepard v. United

States, 544 U.S. 13, 20 (2005); Taylor, 495 U.S. at 602. And

in determining whether a statute’s terms are so broad as to

include multiple categories of conduct, some of which would

and others which would not constitute violent felonies, we

look to how its elements are defined by statute and by the

state’s supreme court. Johnson v. United States, No. 08-6925,

2010 U.S. LEXIS 2201, at *8 (U.S. March 2, 2010).

b.

Until recently, the question of which approach to apply to

the escape statute before us would likely have been resolved

4 UNITED STATES v. BETHEA
by Circuit precedent. In United States v. Hairston, 71 F.3d

115 (4th Cir. 1995), we considered a similar North Carolina

escape statute and held that under the categorical approach, an

escape conviction constituted a violent felony under the

ACCA. Id. at 117.

Last term, however, the Supreme Court decided Chambers

v. United States, which directly undermines our holding in

Hairston, particularly where an escape statute can be violated

by a defendant’s failure to report to custody. Addressing an

Illinois escape statute, which by its terms could be violated by

a defendant’s breaking out of jail or by a defendant’s failing

to report, the Court found that a defendant’s conviction under

that statute had to be considered under the modifiedcategorical approach. Chambers, 129 S. Ct. at 691. That statute, the Court reasoned, proscribed "at least two separate

crimes," one of which, failure to report, was not a violent felony under the ACCA. Id. Where, then, a statute prohibits both

failure to report and more traditional escapes, a court must use

the modified-categorical approach to determine which of the

two forms of conduct the defendant engaged in when determining whether his prior offense brings him within the

ACCA’s purview.

III.

a.

At first blush, it is unclear whether South Carolina’s escape

statute proscribes one or more generic forms of conduct. By

its terms, the statute merely makes it a crime "for a person,

lawfully confined in prison or upon the public works of a

county or while in the custody of a superintendent, guard, or

officer, to escape." § 24-13-410(A).1 Unlike the Illinois statute

1Section 24-13-410(A) also makes it a felony to attempt to escape or

possess tools of escape. Neither of these provisions is applicable to this

appeal. 

UNITED STATES v. BETHEA 5
in Chambers, the statute here does not reduce escape to different forms of conduct, but rather makes it a crime simply "to

escape." Id.

It is clear, however, that the term "escape" under South

Carolina law broadly encompasses both traditional escape and

failure to report. A separate statutory provision dealing with

inmate furloughs states that "[t]he wilful failure of a prisoner

to remain within the extended limits of his confinement or

return within the time prescribed to the places of confinement

. . . is considered an escape from the custody of the director

punishable as provided in Section 24-13-410." S.C. Code

Ann. § 24-3-210 (emphasis added). South Carolina therefore

defines and treats the failure to return to custody2 in the same

way it does unlawfully leaving custody. A defendant who

commits either offense is simply charged with escape under

section 24-13-410.

The South Carolina Supreme Court has emphasized section

24-13-410’s broad scope. In South Carolina v. Murray, 256

S.E.2d 543 (S.C. 1979), the defendant challenged his conviction under section 24-13-410 for failing to return to custody

after a period of authorized release. Id. at 543. Specifically, he

alleged a material variance between his indictment, which

alleged that he "wilfully and unlawfully escape[d]" from custody, and the proof at trial, which showed that he merely

failed to return to prison. Id. The state supreme court held that

there was no material variance, because under South Carolina

law, a person escapes from custody by failing to return;

indeed, that failing to return is "the very crime" defined by the

statutory term escape. Id. at 544.

Because it is clear that the term "to escape" broadly encompasses at least two generic classes of conduct under South

2The Supreme Court made clear in Chambers that for ACCA purposes,

a failure to report and a failure to return to custody are considered part of

the same generic course of conduct. 129 S. Ct. at 691. 

6 UNITED STATES v. BETHEA
Carolina law, including failure to report, Chambers requires

us to use the modified-categorical approach to determine

whether the defendant’s conduct was generically violent. See

129 S. Ct. at 691. The district court was therefore correct to

look to the charging documents to determine whether Bethea

committed a violent felony.

b.

In his brief,3 Bethea argues that in light of Chambers’ holding that the challenged Illinois escape statute contained "at

least two separate crimes," id., we should further expand the

range of crimes that generally constitute escape. Specifically,

he urges us to find that "walk-away" escapes are a separate

category of conduct, distinct from "break-out" escapes, and

that the former category is insufficiently "purposeful, violent,

and aggressive," Begay v. United States, 128 S. Ct. 1581,

1588 (2008), to be an ACCA predicate.

3At oral argument, Bethea’s counsel argued, in the alternative, that we

should apply the categorical approach to find that violations of the South

Carolina statute are not violent felonies. We cannot do so in light of

Chambers, in which the Supreme Court made clear that escape statutes,

which include in their definitions failure to report, should be analyzed

under the modified-categorical approach. 129 S. Ct. at 691. 

Furthermore, we disagree with counsel’s contention that our recent

decision in United States v. Rivers, 595 F.3d 558 (4th Cir. 2010), suggests

a contrary result. In Rivers, we found the modified-categorical approach

inapplicable to South Carolina’s blue-light statute because the statute proscribed only one general course of conduct — namely failing to stop for

a police signal. We emphasized that, after Chambers, a statute did not proscribe different forms of conduct simply because it covered both intentional and unintentional acts — the statute had to proscribe acts, which

themselves, were different in-kind, regardless of the perpetrator’s mens

rea. Here, the South Carolina statute covers not just intentional and unintentional conduct, but rather at least two separate generic forms of conduct: unlawfully leaving and failing to return to custody, which the

Supreme Court explicitly held must be analyzed separately under the

ACCA. Chambers, 129 S. Ct. at 691. 

UNITED STATES v. BETHEA 7
Bethea’s argument has gained significant traction in the

federal appellate courts. Indeed, each circuit to consider this

question in a published opinion4 after Chambers has held that

walk-away escape is a distinct form of generic conduct that

does not constitute a violent felony under the ACCA. See

United States v. Lee, 586 F.3d 859, 869 (11th Cir. 2009);

United States v. Hopkins, 577 F.3d 507, 514 (3d Cir. 2009);

United States v. Hart, 578 F.3d 674, 678 (7th Cir. 2009);

United States v. Ford, 560 F.3d 420, 423 (6th Cir. 2009);

United States v. Charles, 576 F.3d 1060, 1068 (10th Cir. 2009).5

We need not wade into this discussion, however, because the

South Carolina escape statute here penalizes both unlawfully

leaving custody and failing to report to custody. Under

Chambers, then, the statute must be analyzed under the

modified-categorical approach, regardless of whether or not

walk-away escape is a distinct form of conduct.

IV.

Because South Carolina’s escape statute includes, by definition, at least one form of conduct that is and one form of

conduct that is not an ACCA predicate, we must now consider

whether Bethea’s charging documents and any judicial

records "necessarily" show that Bethea pled guilty to generic

conduct that would constitute a violent felony. See Shepard,

544 U.S. at 20-21. They do not.

Besides the statute, itself, the only documents relating to

Bethea’s escape conviction that we may consider are the

indictment and the sentencing sheet. See id. at 15. The indict4The Fifth Circuit held in an unpublished decision that walk-away

escape should still be treated as a violent felony after Chambers. United

States v. Delgado, 320 Fed. App’x 286, 286 (5th Cir. 2009). 

5We also note that the government does not challenge Bethea’s argument that walk-away escapes are separate crimes that do not implicate the

ACCA, and that it conceded this same point before at least one other court

of appeals. See Lee, 586 F.3d at 867. 

8 UNITED STATES v. BETHEA
ment reads: "That Andrew Bethea did in Marlboro County on

or about December 12, 1995, escape from the Marlboro

County Detention Center while waiting to appear in General

Sessions Court in violation of Section 24-13-410 of the 1976

Code of Laws of South Carolina." J.A. 106.6 Bethea’s sentencing sheet merely states that Bethea pled guilty to "escape." J.A. 104. The government argues, and the district court

below found, that these documents prove that Bethea unlawfully left prison and did not merely fail to report.

Yet, these documents simply state that Bethea escaped,

which alone makes it possible that Bethea engaged in patently

non-violent conduct. Because a defendant "escapes" under

South Carolina law by either breaking out or failing to report,

see Murray, 256 S.E.2d at 544, Bethea could have failed to

report to the detention center before his hearing and might not

have unlawfully left physical custody. Even the indictment,

which is admittedly more detailed than the sentencing sheet,

would be just as legally and factually accurate were it describing an escape in which Bethea killed four guards, stole a bulldozer, and broke down a concrete wall to effect that escape

from custody, as it would be were it describing an incident in

which Bethea merely failed to arrive at a detention center to

await his court hearing.7 The indictment and the sentencing

sheet, therefore, cannot "necessarily" show that Bethea

engaged in the type of generally violent conduct contemplated

by the ACCA. See Shepard, 544 U.S. at 24.

6Citations to J.A. __ refer to the Joint Appendix filed by the parties

upon appeal. 

7Because the indictment specifies that Bethea escaped while waiting to

appear in court, we recognize that the most plausible explanation for his

specific conduct is that he fled custody, rather than that he simply failed

to report. Under Shepard, however, we are charged with considering

whether Bethea’s conduct was "necessarily" violent, not whether his conduct was plausibly or even likely so. 544 U.S. at 24. Bethea might have

been released from custody for a finite period prior to his hearing. Had he

been on such a furlough and then failed to return for his hearing, he would

have escaped under South Carolina law. This possibility precludes a finding that Bethea necessarily left custody unlawfully. 

UNITED STATES v. BETHEA 9
It is true that were we to interpret the term "escape," as

used in the indictment and sentencing sheet, in the way in

which the word is commonly used, then we would likely have

to conclude that Bethea unlawfully departed prison, and not

that he merely failed to report. We have no basis for assuming, however, that South Carolina ascribes one meaning to

escape when it is used in statutes and court opinions, but

another entirely when used in charging documents and sentencing sheets. This is especially true in light of Murray, in

which the indictment used the term "escape" to describe the

defendant’s failure to return to custody. 256 S.E.2d at 543.

Consequently, we conclude that even after considering the

relevant documents under the modified-categorical approach,

Bethea’s conviction for violating section 24-13-410 is not a

violent felony under the ACCA.8

V.

Our holding that Bethea’s prior escape conviction is not an

ACCA predicate necessarily means that Bethea should not

have been subjected to the ACCA’s fifteen-year, mandatoryminimum provision. We therefore vacate his sentence and

remand to the district court for proceedings consistent with

this opinion.

VACATED AND REMANDED

8Bethea also urges this Court to apply the doctrine of constitutional

avoidance to interpret the ACCA as requiring that predicate convictions be

pled in an indictment and proved beyond a reasonable doubt. We do not

reach this question because the offense at issue is not an ACCA predicate

under these facts. And as Bethea notes, the Supreme Court’s decisions in

Apprendi v. New Jersey, 530 U.S. 466 (2000) and Almendarez-Torres v.

United States, 523 U.S. 224, 249 (1998), preclude this claim. 

10 UNITED STATES v. BETHEA