United States v. Clay

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 09-4572
JAMES JESSE CLAY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(1:08-cr-00123-LHT-1)

Argued: September 22, 2010

Decided: December 8, 2010

Before AGEE, Circuit Judge, HAMILTON, Senior Circuit
Judge, and James C. DEVER III, United States District
Judge for the Eastern District of North Carolina,
sitting by designation.

Vacated and remanded by published opinion. Senior Judge
Hamilton wrote the opinion, in which Judge Agee and Judge
Dever joined.

COUNSEL

ARGUED: Matthew Segal, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Asheville, North
2 UNITED STATES v. CLAY
Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Car-
olina, for Appellee. ON BRIEF: Claire J. Rauscher, Execu-
tive Director, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Asheville, North Carolina, for
Appellant. Edward R. Ryan, United States Attorney, Char-
lotte, North Carolina, for Appellee.

OPINION

HAMILTON, Senior Circuit Judge:

On February 5, 2009, James Clay (Clay) pled guilty to one
count of being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g). Thereafter, the district court sentenced
him to sixty months’ imprisonment. In calculating Clay’s
advisory sentencing range under the United States Sentencing
Guidelines (Guidelines or USSG), the district court counted
Clay’s prior conviction for the offense of felony escape under
Georgia law, see Ga. Code § 16-10-52(a), as a predicate crime
of violence for purposes of setting Clay’s base offense level
at 20, pursuant to USSG § 2K2.1(a)(4)(A).

On appeal, Clay challenges his sentence as procedurally
unreasonable, inter alia, on the ground that the district court
erred in calculating his advisory sentencing range under the
Guidelines by erroneously counting his conviction for the
offense of felony escape under Georgia law as a predicate
crime of violence under USSG § 2K2.1(a)(4)(A). We agree.
Accordingly, we vacate Clay’s sentence and remand for
resentencing in accordance with this opinion.

I.

USSG § 2K2.1 is the Guidelines section applicable to cal-
culate the advisory sentencing range under the Guidelines for
 UNITED STATES v. CLAY 3
a defendant convicted of a § 922(g) offense. Of particular rel-
evance on appeal, USSG § 2K2.1(a)(4)(A) provides for a base
offense level of 20, "if . . . the defendant committed any part
of the instant offense subsequent to sustaining one felony con-
viction of . . . a crime of violence . . . ." Id. Application Note
1 of the Commentary to USSG § 2K2.1 provides: "For pur-
poses of this guideline: . . . ‘Crime of violence’ has the mean-
ing given that term in § 4B1.2(a) and Application Note 1 of
the Commentary to § 4B1.2." USSG § 2K2.1, comment. (n.1).
USSG § 4B1.2(a), in turn, defines the term "‘crime of vio-
lence’" as:

any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, 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.

Id. The language highlighted in bold is referred to in the rele-
vant jurisprudence as "the Otherwise Clause."

Below, the Presentence Report (PSR) determined that Clay
had committed his § 922(g) offense subsequent to sustaining
one felony conviction for a crime of violence as the term
"crime of violence" is found in USSG § 2K2.1(a)(4)(A), and
therefore, recommended that the district court set Clay’s base
offense level at 20. The PSR identified Clay’s 2003 convic-
tion for felony escape under Georgia Code § 16-10-52(a) as
the crime of violence. The PSR then reduced Clay’s base
offense level by 3 levels for acceptance of responsibility, see
USSG § 3E1.1(a)-(b), resulting in a total offense level of 17.
The PSR determined Clay’s criminal history category to be
4 UNITED STATES v. CLAY
VI. Based upon a total offense level of 17 and a criminal his-
tory category of VI, the PSR reported Clay’s advisory sen-
tencing range under the Guidelines as 51 to 63 months’
imprisonment.

In the first of his two objections to the PSR, Clay objected
to the PSR’s recommendation to set his base offense level at
20. According to Clay, his felony escape offense did not qual-
ify as a "crime of violence" as that term is found in USSG
§ 2K2.1(a)(4)(A), because "this is a walk away from a nonse-
cure facility." (J.A. 39) (sentencing hearing). The government
directly disputed Clay’s characterization of his felony escape
offense as a walk away escape from a unsecured facility on
the basis that Clay had also pled guilty to the offense of inter-
ference with government property, see Ga. Code Ann. § 16-7-
24(a), which involved Clay damaging leg irons belonging to
the Gainesville State Diversion Center and the State of Geor-
gia, on the same day that he committed his felony escape
offense.

In support of its position, the government submitted a copy
of the two-page charging document (the Charging Document).
The second page of this document set forth the totality of the
allegations against Clay with respect to his felony escape
offense and his interference with government property
offense. Additionally, the government submitted Clay’s peti-
tion to enter a guilty plea to these offenses and the respective
criminal judgments (the Guilty Plea/Judgment Documents).

With respect to Clay’s felony escape offense, the Charging
Document alleged:

I, JASON J. DEAL, District Attorney of the
Northeastern Judicial Circuit of Georgia, on behalf
of the people of the State of Georgia, charge and
accuse JAMES JESSE CLAY with the offense of
ESCAPE (FELONY) for that the said accused in
the County and State aforesaid, on the twentieth day
 UNITED STATES v. CLAY 5
of September, 2002, did unlawfully, having been
charged with a felony and having been sentenced
under the First Offender Act but prior to adjudication
of guilt, escape from a place of lawful custody and
confinement: to wit, the Gainesville State Diversion
Center, contrary to the laws of this State, the good
order, peace and dignity thereof.

(J.A. 169). Clay pled guilty to this charge. The corresponding
criminal judgment described the offense only as "Escape."
(J.A. 172).

With respect to Clay’s interference with government prop-
erty offense, the Charging Document alleged that, on Septem-
ber 20, 2002, Clay "did unlawfully damage government
property, to-wit: leg irons, the property of Gainesville State
Diversion Center and the State of Georgia . . . ." (J.A. 169).
The criminal judgment for this offense described it only as
"Interference with Government Property." (J.A. 173). Clay’s
petition to enter a guilty plea offered no details regarding
either offense. According to the government, Clay’s convic-
tion for interference with government property established
that, at the time he committed his felony escape "he was
shackled and in leg irons," (J.A. 51) (sentencing hearing), and
thus, "was not in a walk away type camp," id. at 50.

In Clay’s second objection to the PSR, he contended that
if his first objection is sustained, his base offense level would
decrease to 14, pursuant to USSG § 2K2.1(a)(6), and he
would then be eligible to decrease his offense level to 6, pur-
suant to USSG § 2K2.1(b)(2), because he possessed the shot-
gun found under his bed, which was the subject of his
§ 922(g) offense, solely for lawful sporting purposes. Accord-
ing to Clay, he was entitled to the lawful sporting purposes
reduction, because although he did not have a hunting license,
his intent was to use the shotgun to hunt with his grandpar-
ents. As proof of his intent, Clay pointed to a statement by his
landlord set forth in the PSR that Clay had asked her for per-
6 UNITED STATES v. CLAY
mission to hunt on the rented property and a statement by his
grandmother set forth in the PSR that the shotgun belonged to
Clay’s grandfather, her husband, and they planned to go hunt-
ing with Clay during their upcoming Thanksgiving visit with
him. The crux of the government’s response was that Clay
failed to carry his burden of proving that he possessed the
shotgun solely for lawful sporting purposes, because he did
not possess a valid hunting license in either North Carolina or
Georgia and, at the time he possessed the shotgun at issue,
rabbit hunting season was not open in North Carolina.

At Clay’s sentencing hearing, the district court heard argu-
ment from both sides with respect to Clay’s two objections to
the PSR. At the conclusion of such hearing, the district court
overruled both objections and adopted the PSR "to be correct
as written." (J.A. 53). Thus, the district court calculated
Clay’s advisory sentencing range under the Guidelines as 51
to 63 months’ imprisonment.

In overruling Clay’s first objection, the district court read
the Charging Document as establishing that Clay was shack-
led in leg irons during the commission of his felony escape,
which circumstance indicated to the district court "that it was
not simply a walk away type of confinement at the time of the
escape." (J.A. 53). Accordingly, in calculating Clay’s sentenc-
ing range, the district court set his base offense level at 20,
pursuant to USSG § 2K2.1(a)(4)(A).

In initially overruling Clay’s objection to the PSR’s failure
to give him a lawful sporting purposes reduction, the district
court stated during the sentencing hearing:

Two reasons, it is necessary to hunt—to legally
hunt in the State of Georgia or surrounding states, to
possess a valid hunting license.

And second, as a felon, he would not be entitled
to possess the firearm, and thus, it would convinc-
 UNITED STATES v. CLAY 7
ingly appear that the defendant was not legally pos-
sessing a firearm for the lawful purpose of hunting,
for which he had no license, by his own admission.

(J.A. 53-54). At a later time during this same sentencing hear-
ing, the government submitted the document signed by Clay
in April 2002, acknowledging that he was prohibited by fed-
eral law from possessing firearms. The district court then told
Clay that it did not understand how he could come into court
and suggest that he possessed the shotgun for hunting when
in 2002 he signed a statement acknowledging that he could no
longer possess a firearm. Clay responded that the Guidelines
provide that a felon in possession of a firearm is eligible for
the lawful sporting purposes reduction. The district court reit-
erated that it did not understand how Clay could argue that he
possessed it for hunting purposes, when he was not allowed
to have a gun. The district court then immediately proceeded
to pronounce sentence on Clay, sentencing him to 60 months’
imprisonment and 3 years of supervised release. This timely
appeal challenging Clay’s sentence followed. Notably, in
addition to the regular appellate briefs to be submitted on
appeal, upon our order, the parties submitted (approximately
two weeks prior to oral argument) supplemental briefs
addressing the impact of our recent decision in United States
v. Bethea, 603 F.3d 254 (4th Cir. 2010), on the present appeal.

II.

We review Clay’s sentence for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 46 (2007). In so reviewing, we must first determine
whether the district court committed significant procedural
error in sentencing Clay, such that his sentence is procedur-
ally unreasonable. Id. at 51. Improper calculation of a defen-
dant’s advisory sentencing range under the Guidelines
constitutes significant procedural error. Id.; see also United
States v. Chacon, 533 F.3d 250, 253 (4th Cir. 2008); United
States v. Diaz-Ibarra, 522 F.3d 343, 347 (4th Cir. 2008).
8 UNITED STATES v. CLAY
In his first claim of significant procedural error, Clay con-
tends the district court erred in counting his offense for felony
escape under Georgia law as a crime of violence for purposes
of setting his base offense level at 20, pursuant to USSG
§ 2K2.1(a)(4)(A). In addressing this claim of error, the term
"‘[c]rime of violence’ has the meaning given that term in
§ 4B1.2(a) and Application Note 1 of the Commentary to
§ 4B1.2." USSG § 2K2.1, comment. (n.1). As previously set
forth, USSG § 4B1.2(a) defines the term "‘crime of violence’"
as:

any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, 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 phys-
ical injury to another.

Id.

Whether Clay’s offense of felony escape under Georgia law
qualifies as a crime of violence under USSG § 4B1.2(a) is a
question of law that we review de novo. See United States v.
Jarmon, 596 F.3d 228, 230 (4th Cir. 2010). Cf. Diaz-Ibarra,
522 F.3d at 347. Pursuant to Georgia Code § 16-10-52(a):

(a) A person commits the offense of escape when he
or she:

(1) Having been convicted of a felony or misdemea-
nor or of the violation of a municipal ordinance,
intentionally escapes from lawful custody or from
any place of lawful confinement;
 UNITED STATES v. CLAY 9
(2) Being in lawful custody or lawful confinement
prior to conviction, intentionally escapes from such
custody or confinement;

(3) Having been adjudicated of a delinquent or
unruly act or a juvenile traffic offense, intentionally
escapes from lawful custody or from any place of
lawful confinement;

(4) Being in lawful custody or lawful confinement
prior to adjudication, intentionally escapes from such
custody or confinement; or

(5) Intentionally fails to return as instructed to lawful
custody or lawful confinement or to any residential
facility operated by the Georgia Department of Cor-
rections after having been released on the condition
that he or she will so return; provided, however, such
person shall be allowed a grace period of eight hours
from the exact time specified for return if such per-
son can prove he or she did not intentionally fail to
return.

Ga. Code § 16-10-52(a).

This offense does not have as an element the use, attempted
use, or threatened use of physical force against the person of
another. Neither does it proscribe burglary of a dwelling,
arson, or extortion, or involve the use of explosives. Accord-
ingly, as the government righty concedes, if Clay’s offense
for felony escape under Georgia law constitutes a crime of
violence as defined under USSG § 4B1.2(a), it must fall
within the scope of USSG § 4B1.2(a)’s Otherwise Clause. In
deciding whether the offense of felony escape under Georgia
law falls within the scope of USSG § 4B1.2(a)’s Otherwise
Clause, we rely upon precedents evaluating whether an
offense constitutes a violent felony under the Armed Career
Criminal Act (the ACCA), 18 U.S.C. § 924(e)(2)(B), inter-
10 UNITED STATES v. CLAY
changeably with precedents evaluating whether an offense
constitutes a crime of violence under USSG § 4B1.2(a). See
Jarmon, 596 F.3d at 231 n.*; United States v. Rivers, 595
F.3d 558, 560 n.1 (4th Cir. 2010); United States v. Seay, 553
F.3d 732, 739 (4th Cir. 2009). We do so because "[t]he
ACCA defines ‘violent felony’ in a manner substantively
identical to the definition of a ‘crime of violence’ in § 4B1.2."1
Jarmon, 596 F.3d at 231 n.*.

Before addressing the parties’ arguments regarding whether
Clay’s offense for felony escape under Georgia law falls
within the scope of USSG § 4B1.2(a)’s Otherwise Clause, we
must first set forth the relevant legal landscape, beginning
with the Supreme Court’s opinion in Begay v. United States,
553 U.S. 137 (2008). In Begay, the Supreme Court considered
whether driving under the influence of alcohol falls within the
scope of the ACCA’s Otherwise Clause. Id. at 1583. In hold-
ing that it does not,

[t]he Court reasoned that Congress included the enu-
merated offenses of burglary, arson, extortion, and
the use of explosives to limit the crimes that the sec-
ond clause covers to crimes that are roughly similar,
in kind as well as in degree of risk posed, to the
examples themselves. The Court found that the enu-
merated felonies typically involve purposeful, vio-
lent, and aggressive conduct, and thus distinguished
those crimes from offenses, like driving under the
influence of alcohol, that impose strict liability,
1
The ACCA defines the term "violent 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) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another . . . .
18 U.S.C. § 924(e)(2)(B).
 UNITED STATES v. CLAY 11
criminalizing conduct in respect to which the
offender need not have had any criminal intent at all.

Jarmon, 596 F.3d at 231 (internal quotation marks, citations,
alteration marks, and ellipses omitted).

In deciding whether the offense of felony escape under
Georgia law qualifies as a crime of violence under USSG
§ 4B1.2(a)’s Otherwise Clause, we must first determine which
of two, potentially applicable interpretive methods, the cate-
gorical approach or the modified categorical approach, is
applicable. Bethea, 603 F.3d at 256 (ACCA); United States v.
Seay, 553 F.3d 732, 737 (4th Cir. 2009) (USSG § 4B1.2(a)).
"Under th[e] categorical approach, the way in which a partic-
ular defendant violated the statute on the particular day in
question is irrelevant; the only question is whether the statu-
tory language proscribes conduct that involves violence when
the offense is considered generically." Bethea, 603 F.3d at
256. The categorical approach is inapplicable, however, if "a
statute broadly criminalizes conduct that could be ‘generally
committed’ in multiple ways, some violent and some not
. . . ." Id.

Under the modified categorical approach, we may consider
the charging documents filed in the court of conviction. Seay,
553 F.3d at 737 (USSG § 4B1.2(a)) ("Because the statute
criminalizes more than one type of conduct, we may look
beyond the statutory language to the actual charging docu-
ment controlling the defendant’s conviction to understand the
nature of the offense."); Diaz-Ibarra, 522 F.3d at 348 (USSG
§ 2L1.2(b)(1)(A)(ii)) ("Under the modified categorical
approach, we determine whether a defendant’s specific con-
duct qualifies as a crime of violence by looking to the terms
of the charging document . . . ." (internal quotation marks
omitted)). Moreover, applying the modified categorical
approach in a guilty-plea situation, such is at issue here, we
may consider, as set forth in Shepard v. United States, 544
U.S. 13, 26 (2005), "‘the terms of a plea agreement,’ the
12 UNITED STATES v. CLAY
‘transcript of colloquy between judge and defendant,’ or
‘some comparable judicial record’ revealing the ‘factual basis
for the plea.’" Diaz-Ibarra, 522 F.3d at 348 (quoting Shepard,
544 U.S. at 26). Also under the modified categorical
approach, in order to count a defendant’s prior offense as a
crime of violence for purposes of setting his base offense
level at 20, pursuant to USSG § 2K2.1(a)(4)(A), these materi-
als must necessarily show (plausibility or even likelihood is
insufficient) that the defendant pleaded guilty to generic con-
duct that would constitute a crime of violence under USSG
§ 4B1.2(a)’s Otherwise Clause.2 See Bethea, 603 F.3d at 259-
60 & 259 n.7.

Finally, of specific relevance to the present appeal, in
Chambers v. United States, 129 S. Ct. 687 (2009), the
2
Although the government consistently espoused in its appellate brief-
ing that the modified categorical approach applied in this case, and that,
under such approach, "the next question is whether the defendant’s ‘charg-
ing documents and any judicial records ‘necessarily’ show that [the defen-
dant] pled guilty to generic conduct that would constitute a [crime of
violence],’" (government’s Supplemental Br. at 8) (quoting Bethea, 603
F.3d at 259) (alterations in original), at oral argument, the government
abruptly changed course and offered its newly minted argument that the
modified categorical approach’s must-necessarily-show requirement, as
expounded upon by this court in Bethea, 603 F.3d at 259-60, is inapplica-
ble when analyzing whether a defendant is guilty of a crime of violence
under USSG § 4B1.2(a), because a defendant’s advisory sentencing range
under the Guidelines does not have constitutional implications. We hold
the government’s newly minted argument, made for the first time at oral
argument, is waived in this appeal. This is because, although we gave the
government the opportunity to make this very argument in its supplemen-
tal brief addressing the impact of our recent decision in Bethea, 603 F.3d
at 254, on the present appeal, the government unequivocally failed to avail
itself of such opportunity. See United States v. Leeson, 453 F.3d 631, 638
n.4 (4th Cir. 2006) (argument based upon particular Supreme Court case
made for the first time in a letter styled as notice of supplemental author-
ity, submitted pursuant to Federal Rule of Appellate Procedure 28(j), was
waived on appeal; appellant did not present argument based upon the
Supreme Court case in the argument section of its opening brief and such
case was readily available at the time appellant filed his opening brief).
 UNITED STATES v. CLAY 13
Supreme Court held that the generic crime of failing to report
to a penal institution did not fall within the scope of the
ACCA’s Otherwise Clause. Id. at 691-92. The Court reasoned
that, "[c]onceptually speaking, the crime amounts to a form of
inaction, a far cry from the purposeful, violent, and aggressive
conduct potentially at issue when an offender uses explosives
against property, commits arson, burgles a dwelling or resi-
dence, or engages in certain forms of extortion." Id. at 692
(internal quotation marks omitted).

Here, with the exception by the government previously
noted, see supra at 12 n.2, and an alternative argument by
Clay which we find unnecessary to reach, see infra at 18 n.
4, the parties agree that the modified categorical approach, not
the categorical approach, is applicable, because Georgia’s fel-
ony escape statute criminalizes at least two generic classes of
conduct: (1) traditional break-out escape from a secured facil-
ity, which the parties unremarkably agree involves conduct
that presents a serious potential risk of physical injury to
another, see, e.g., United States v. Pratt, 568 F.3d 11, 22 (1st
Cir. 2009); and (2) failure to return to custody, which the par-
ties rightly agree under the Supreme Court’s decision in
Chambers, 129 S. Ct. at 691-92, does not. See also Bethea,
603 F.3d at 258 ("Because it is clear that the term ‘to escape’
broadly encompasses at least two generic classes of conduct
under South Carolina law, including failure to report, Cham-
bers requires us to use the modified-categorical approach to
determine whether the defendant’s conduct was generically
violent."). The parties also rightly agree that Georgia’s felony
escape statute criminalizes a third generic class of conduct,
i.e. walk-away escape from an unsecured facility. See Truax
v. State, 428 S.E.2d 611, 613 (Ga. Ct. App. 1993) (holding
evidence sufficient to support felony escape conviction under
Ga. Code § 16-10-52(a), where defendant was brought to
police department for the purpose of investigating a theft
offense, told to wait, and walked out without permission when
left unattended); Hornsby v. State, 284 S.E.2d 630, 631 (Ga.
Ct. App. 1981) (holding, under predecessor version of Ga.
14 UNITED STATES v. CLAY
Code § 16-10-52(a), that prisoner who was admitted to hospi-
tal for treatment of back pains and accompanied to hospital
room by police officer, but then left unguarded, could be con-
victed of felony escape when he walked away from hospital
without permission before his sentence had expired). Finally,
the parties agree that walk-away escape from an unsecured
facility does not qualify as a crime of violence within the
scope of USSG § 4B1.2(a)(2)’s Otherwise Clause.

Despite all their points of agreement, at least throughout the
entirety of their respective briefing in this appeal, Clay and
the government parted company on the issue of whether,
under the modified categorical approach, the Charging Docu-
ment and the Guilty Plea/Judgment Documents necessarily
show (as opposed to just being plausible or even likely) that
Clay had pled guilty to traditional break-out escape from a
secured facility as opposed to walk-away escape from an
unsecured facility. Bethea, 603 F.3d at 259. In all of his
appellate briefing, Clay argued that, at most, the Charging
Document and the Guilty Plea/Judgment Documents show
that he committed walk-away escape from an unsecured facil-
ity. Clay adhered to this argument at oral argument. In all of
its appellate briefing, the government argued that the lan-
guage in the Charging Document and the Guilty
Plea/Judgment Documents necessarily show that Clay had
pled guilty to traditional break-out escape from a secured
facility as opposed to walk-away escape from an unsecured
facility. In this regard, the government reasoned that Clay’s
plea of guilty to interference with government property under
Georgia law, when read in combination with the language
charging him with felony escape under Georgia law, conclu-
sively established that he was shackled in leg irons at the time
of his escape from the Gainesville State Diversion Center, and
therefore, committed the generic crime of break-out escape
from a secured facility (secured at least with respect to Clay).
At oral argument, the government again abruptly changed
course from its appellate briefing and candidly conceded that
 UNITED STATES v. CLAY 15
"there is an inference that has to be drawn to establish that,
at the time he escaped, he was wearing leg irons."

Before addressing the penultimate issue in the present
appeal, i.e., whether the Charging Document and the Guilty
Plea/Judgment Documents necessarily show that Clay com-
mitted the generic crime of traditional break-out escape from
a secured facility, we must address whether walk-away escape
from an unsecured facility constitutes a qualifying crime of
violence under USSG § 4B1.2(a)(2)’s Otherwise Clause,
which is an issue of first impression in our circuit. In Bethea,
we left open the analogous issue under the ACCA’s Other-
wise Clause. Bethea, 603 F.3d at 258-59. Because the South
Carolina escape statute at issue in Bethea penalized failing to
return to custody and the relevant documents to be considered
under the modified categorical approach in Bethea did not
conclusively rule out the possibility that the defendant had
violated South Carolina’s escape statute by failing to return to
custody, we did not need to decide whether the generic crime
of walk-away escape from an unsecured facility qualified as
a violent felony under the ACCA’s Otherwise Clause in order
to resolve the appeal. Bethea, 603 F.3d at 258-60.

In contrast to the defendant in Bethea, Clay does not con-
tend that the Charging Document and Guilty Plea/Judgment
Documents fail to conclusively rule out the possibility that he
violated Georgia’s felony escape statute by failing to return to
custody. This approach is unsurprising given two facts: (1)
Georgia’s felony escape statute expressly distinguishes
between various forms of escaping from lawful custody or
lawful confinement, Ga. Code § 16-10-52(a)(1)-(4), and
"[i]ntentionally fail[ing] to return as instructed to lawful cus-
tody or lawful confinement or to any residential facility oper-
ated by the Georgia Department of Corrections after having
been released on the condition that he or she will so return
. . . ," Ga. Code § 16-10-52(a)(5); and (2) the language in the
Charging Document tracked the language of subsection (a)(4)
of Georgia’s felony escape statute, which subsection provides
16 UNITED STATES v. CLAY
that "[a] person commits the offense of escape when he or she
. . . [b]eing in lawful custody or lawful confinement prior to
adjudication, intentionally escapes from such custody or con-
finement . . . ," Ga. Code § 16-10-52(a)(4).

Post Chambers, five of our sister circuits have held, in pub-
lished opinions, that walk-away escape from an unsecured
facility is a distinct form of generic conduct that does not
involve purposeful, violent, and aggressive conduct that is
"roughly similar, in kind as well as in degree of risk posed,"
Begay, 553 U.S. at 143, to the enumerated crimes of burglary
of a dwelling, arson, extortion, or crimes involving the use of
explosives, and therefore, does not fall within the Otherwise
Clause of, in some cases the ACCA, in others USSG
§ 4B1.2(a). See United States v. Lee, 586 F.3d 859, 869 (11th
Cir. 2009) (ACCA); United States v. Hopkins, 577 F.3d 507,
514-15 (3d Cir. 2009) (USSG § 4B1.2(a)); United States v.
Hart, 578 F.3d 674, 678 (7th Cir. 2009) (USSG § 4B1.2(a));
United States v. Ford, 560 F.3d 420, 423-26 (6th Cir. 2009)
(USSG § 4B1.2(a)); United States v. Charles, 576 F.3d 1060,
1068-69 (10th Cir. 2009) (USSG § 4B1.2(a)). See also United
States v. Parks, 620 F.3d 911, 912, 916 (8th Cir. September
7, 2010) (recognizing that Eighth Circuit has not yet deter-
mined whether a walk-away escape from an unsecured facility
qualifies as a crime of violence under USSG § 4B1.2(a)(2) in
light of Chambers and Begay). Common to each of these
decisions is the rationale that a walk-away escape from an
unsecured facility, in the words of the Eleventh Circuit in Lee,
quoting in part the words of the Sixth Circuit in Ford,
"[u]nlike the prototypical escape scenario in which an individ-
ual must overcome physical barriers, a walkaway escape
involves simply ‘leav[ing] a facility without removing a phys-
ical restraint, without breaking a lock on a door, without
climbing over a prison wall or security fence or without other-
wise breaking through any other form of security designed to
keep them put.’" Lee, 586 F.3d at 870 (quoting Ford, 560
F.3d at 424) (second alteration in original). Moreover, "an
individual who simply walks away from custody was just as
 UNITED STATES v. CLAY 17
unlikely as an individual who fails to report to custody to call
attention to his whereabouts by simultaneously engaging in
additional violent and unlawful conduct." Lee, 586 F.3d 870-
71 (internal quotation marks omitted).

We agree with the rationale of our sister circuits, and thus
hold that the generic crime of walk-away escape from an
unsecured facility does not qualify as a crime of violence
under USSG § 4B1.2(a)’s Otherwise Clause. Analogous to the
Supreme Court’s reasoning in Chambers that a defendant’s
failure to report to custody (or failure to return to custody) is
"a far cry" from the type of conduct associated with the enu-
merated crimes in the ACCA’s Otherwise Clause, Chambers,
129 S. Ct. at 692, a walk-away escape from an unsecured
facility is a far cry from the type of conduct associated with
the enumerated crimes in § 4B1.2(a)’s Otherwise Clause.

Moving on to the issue of whether the Charging Document
and Guilty Plea/Judgment Documents necessarily show that
Clay was convicted of the generic crime of break-out escape
as opposed to the generic crime of walk-away escape from an
unsecured facility, we hold they do not. Critically, the Charg-
ing Document and Guilty Plea/Judgment Documents left
room for the possibility that Clay was convicted of the generic
crime of walk-away escape from an unsecured facility, and
therefore, make it possible that he engaged in patently non-
violent conduct.3 Cf. Bethea, 603 F.3d at 261 ("[b]ecause a
defendant ‘escapes’ under South Carolina law by either break-
ing out or failing to report", the fact that the only documents
related to the defendant’s escape conviction that the court
could properly consider (the indictment and sentencing sheet)
stated that defendant had escaped "ma[de] it possible that
Bethea engaged in patently non-violent conduct"). The fact
that Clay unlawfully damaged leg irons at some point during
3
Notably, the government concedes in its briefing that "a diversion cen-
ter is akin to a half-way house . . . ." (government’s Supplemental Br. at
8).
18 UNITED STATES v. CLAY
the same day he violated Georgia’s felony escape statute by
"escap[ing] from a place of lawful custody and confinement:
to wit, the Gainesville State Diversion Center," (J.A. 169),
which the government concedes is a half-way house, does not
necessarily show, as the government righty conceded at oral
argument, that he pled guilty to break-out escape from a
secured facility as opposed to walk-away escape from an
unsecured facility. Indeed, it does not necessarily show that
he was ever actually restrained by the leg irons. Equally plau-
sible is the scenario that Clay walked away without restraint
from the Gainesville State Diversion Center, was captured
later the same day, and then placed in leg irons which he dam-
aged. Because the Charging Document and the Guilty
Plea/Judgment Documents left room for the possibility that
Clay was convicted of the generic crime of walk-away escape
from an unsecured facility, Clay’s felony escape conviction
under Georgia law does not qualify as a crime of violence
under USSG § 4B1.2(a). In sum, we hold the district court
erred in counting Clay’s escape conviction under Georgia law
as a crime of violence for purposes of setting his base offense
level at 20 under USSG § 2K2.1(a)(4)(A), and therefore, erred
in calculating his advisory sentencing range under the Guide-
lines. Improper calculation of Clay’s advisory sentencing
range under the Guidelines constitutes significant procedural
error, making Clay’s sentence procedurally unreasonable.
Gall, 552 U.S. at 51. Accordingly, we vacate Clay’s sentence
and remand this case for resentencing consistent with our
holdings on this issue and further instructions that follow in
the next part of this opinion.4
4
We need not and do not address Clay’s alternative argument, based
upon Johnson v. United States, 130 S. Ct. 1265 (2010), that the modified
categorical approach applies only "[w]hen the law under which the defen-
dant has been convicted contains statutory phrases that cover several dif-
ferent generic crimes," and only to "determine which statutory phrase was
the basis for the conviction . . . ." Id. at 1273.
 UNITED STATES v. CLAY 19
III.

Because the district court erred in setting Clay’s base
offense level at 20 under USSG § 2K2.1(a)(4)(A), we instruct
the district court on remand to revisit whether, pursuant to
USSG § 2K2.1(b)(2), Clay was entitled to have his offense
level reduced to level 6 for § 922(g) defendants who "pos-
sessed all ammunition and firearms solely for lawful sporting
purposes or collection, and did not unlawfully discharge or
otherwise unlawfully use such firearms or ammunition,"
USSG § 2K2.1(b)(2). In so revisiting, we instruct the district
court to be mindful that a defendant convicted of being a
felon in possession of a firearm is not automatically ineligible
for the lawful sporting purposes reduction because such
defendant cannot legally possess a firearm or obtain a hunting
license and/or because he knew of these facts. See United
States v. Sura, 511 F.3d 654, 663 (7th Cir. 2007) (advising
sentencing court that, on remand for resentencing, it should
not consider the fact that defendant had been warned that as
a convicted felon he could not possess a firearm in determin-
ing whether to give offense level reduction under USSG
§ 2K2.1(b)(2) for possession of a firearm solely for lawful
sporting purposes). The focus of the reduction is whether the
defendant possessed the firearm solely for otherwise lawful
sporting purposes (e.g. hunting) or whether he possessed it for
an otherwise unlawful purpose such as protecting a stash of
illegal drugs.

We also remind the district court to comply fully with the
chosen-sentence explanation requirements set forth in United
States v. Carter, 564 F.3d 325 (4th Cir. 2009). Id. at 328 (dis-
trict court commits procedural error in sentencing defendant
if it does not state in open court particular reasons supporting
its chosen sentence sufficient to permit meaningful appellate
review).

IV.

In conclusion, we hold the district court erred in calculating
Clay’s advisory sentencing range under the Guidelines by
20 UNITED STATES v. CLAY
counting Clay’s conviction for felony escape under Georgia
law as a "crime of violence" under USSG § 2K2.1(a)(4)(A),
as the term "crime of violence" is defined by USSG
§ 4B1.2(a). Accordingly, we vacate Clay’s sentence and
remand for resentencing consistent with this opinion.

VACATED AND REMANDED