UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 96-4073

CLARK MCKNIGHT,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CR-95-337)

Argued: July 10, 1996

Decided: August 2, 1996

Before WILKINSON, Chief Judge, and HAMILTON and

WILLIAMS, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Elisabeth Ann Sachs, Special Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. Frank Salvato, Alexandria, Virginia,

for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The United States (the government) appeals the sentence of Clarkson McKnight (McKnight) imposed by the district court following

McKnight's plea of guilty to felony attempted escape from custody,

see 18 U.S.C. § 751(a). Relying on the authority of United States v.

Dickerson, 77 F.3d 774 (4th Cir. 1996), petition for cert. filed, ___

U.S.L.W. ___ (U.S. June 5, 1996) (No. 95-9207), the government

contends that the district court erroneously concluded that McKnight

did not qualify as a career offender under United States Sentencing

Commission, Guidelines Manual (USSG), § 4B1.1 (Nov. 1995). We

agree, and therefore, vacate McKnight's sentence and remand for

resentencing.

I.

On or about July 18, 1995, McKnight, while serving a twenty-year

sentence for two felonies at the Lorton Reformatory, a federal maximum security prison, attempted to escape from custody. Specifically,

McKnight hid beside certain ventilation equipment in the recreation

yard until nightfall. Eventually, McKnight made his way to the outer

perimeter fence. When he neared the top of this fence, a correctional

officer spotted him and fired two shots, neither of which injured

McKnight, causing McKnight to drop to the ground between the

fences and cease movement. Correctional officers then apprehended

McKnight and took him into custody without further incident.

A federal grand jury charged McKnight in an indictment that read,

in pertinent part, as follows:

On or about July 18, 1995, at the Occoquan facility of the

Lorton Reformatory, in Fairfax County, Virginia, within the

Eastern District of Virginia, the defendant CLARK MC-

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KNIGHT, having been convicted of a felony and lawfully

committed to the custody of the Attorney General and her

authorized representative, namely, the District of Columbia

Department of Corrections, by virtue of a Judgment and

Commitment Order of the District of Columbia Superior

Court, did unlawfully, knowingly and willfully attempt to

escape from such custody.

(In violation of Title 18, United States Code, Section

751(a)).

(J.A. 5). In October 1995, McKnight pleaded guilty to this charge.

At McKnight's sentencing hearing in December 1995, the government contended that McKnight should be sentenced as a "career

offender" under the Career Offender provision of the Sentencing

Guidelines, see USSG § 4B1.1. McKnight opposed the government's

contention on the ground that the crime of felony attempted escape

from custody, in violation of 18 U.S.C. § 751(a), did not constitute a

crime of violence under the Career Offender provision. Agreeing with

McKnight, the district court refused to sentence McKnight as a career

offender.

The district court then calculated McKnight's total offense level at

eleven under the Sentencing Guidelines. In reaching this calculation,

the district court used the base offense level provided for the crime

of attempting to escape while in custody by virtue of a conviction, see

USSG § 2P1.1(a)(1), and then subtracted two levels for McKnight's

acceptance of responsibility, see USSG § 3E1.1. McKnight had a

criminal history category of VI, which combined with his total

offense level of eleven to produce a sentencing range of twenty-seven

to thirty-three months' imprisonment. Within this range, the district

court sentenced McKnight to twenty-seven months' imprisonment.

The government noted a timely appeal.

II.

On appeal, the government challenges the district court's refusal to

sentence McKnight as a career offender under the Career Offender

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provision of the Sentencing Guidelines, see USSG § 4B1.1. Under

that provision, a defendant is subject to increased penalties if "(1) the

defendant was at least eighteen years old at the time of the instant

offense, (2) the instant offense of conviction is a felony that is either

a crime of violence or a controlled substance offense, and (3) the

defendant has at least two prior felony convictions of either a crime

of violence or a controlled substance offense." USSG § 4B1.1.

In this case, the parties do not dispute that McKnight met the first

and third elements of the Career Offender provision of the Sentencing

Guidelines. The debate here surrounds the second element; whether

the crime of felony attempted escape from custody, in violation of 18

U.S.C. § 751(a), constitutes a "crime of violence" under the Career

Offender provision of the Sentencing Guidelines. In Dickerson,*

under facts materially indistinguishable from this case, we recently

answered this question in the affirmative. See 77 F.3d at 777. Under

this authority, we vacate McKnight's sentence and remand this case

to the district court for resentencing. On remand, the district court

should resentence McKnight as a career offender under USSG

§ 4B1.1.

VACATED AND REMANDED FOR RESENTENCING

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*We note that the district court did not have the benefit of our decision

in Dickerson when sentencing McKnight.

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