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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 24, 2003 Decided July 8, 2003
No. 01-3132
UNITED STATES OF AMERICA,
APPELLEE
v.
TOUMANI TOURAY THOMAS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00225–01)
David W. Bos, Assistant Federal Public Defender, argued
the cause for appellant. With him on the brief was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Ann M. Carroll, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Roscoe C. Howard,
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Jr., U.S. Attorney, John R. Fisher and Thomas J. Tourish,
Jr., Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and SENTELLE and
RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Appellant Toumani Touray
Thomas appeals from a judgment of the District Court sen-
tencing him to fifty-seven months on his plea of guilty to
possession of a firearm by a convicted felon, and of assaulting,
resisting, and interfering with a police officer. On appeal he
contends that the District Court improperly calculated the
Sentencing Guidelines range by considering his prior convic-
tion for escape from an officer to be for a crime of violence.
Because we conclude that the District Court did not err in its
calculations, we affirm the judgment on appeal.
I
Thomas pleaded guilty to an information charging him with
unlawful possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1) (2000), and assaulting, re-
sisting, and interfering with a police officer in violation of
D.C. Code § 22–505(a) (2001), under a plea agreement which
did not purport to be definitive as to the base offense level
applicable to his sentence. The probation office in the pre-
sentence report (PSR) calculated a base offense level of 20.
Thomas contended at sentencing and contends now that the
level should have been 14. The point of contention is his
criminal history score which includes a conviction in 1997 for
escape from an officer in violation of D.C. Code § 22–
2601(a)(2). The District Court, consistent with the PSR,
considered that offense to constitute a ‘‘crime of violence.’’
Under the applicable Guidelines section, the base offense
level is 20 where the defendant has committed the instant
offense, or any part of it, ‘‘subsequent to sustaining one felony
conviction of TTT a crime of violenceTTTT’’ U.S. SENTENCING
GUIDELINES MANUAL § 2K2.1(a)(4)(A) (2002). Without the
enhancing effect of the crime of violence conviction, defen-
3
dant’s base offense level would apparently have been 14.
U.S.S.G. § 2K2.1(a)(6).
Thomas argued at sentencing, and argues now, that escape
is not a crime of violence. Thomas relies on the definitional
section, § 4B1.2, which specifies that a ‘‘crime of violence’’
(other than for certain specified offenses) ‘‘means 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) TTT otherwise involves conduct that
presents a serious potential risk of physical injury to anoth-
er.’’ U.S.S.G. § 4B1.2(a). Thomas argues that the crime of
escape may not involve violence at all, as in the case of a
‘‘walkaway’’ escape from a halfway house. The government
argues for, and the District Court adopted, a ‘‘categorical’’
approach in which the offense of escape is treated as categori-
cally a crime of violence and therefore subject to the enhanc-
ing effect of § 2K2.1(a)(4)(A). As there was no controlling
authority from this court or from the United States Supreme
Court, the District Court adopted the reasoning of United
States v. Nation, 243 F.3d 467 (8th Cir. 2001), and other
circuits cited therein, and entered a judgment based on the
base offense level of 20. Thomas appealed.
II
As noted above, section 2K2.1(a)(4)(A) enhances a defen-
dant’s sentence if ‘‘the defendant committed any part of the
instant offense subsequent to sustaining one felony conviction
of TTT a crime of violence.’’ U.S.S.G. § 2K2.1(a)(4)(A). Ap-
plication Note 5 to § 2K2.1(a)(4)(A) states that the term
‘‘crime of violence’’ is given the meaning outlined in
§ 4B1.2(a). U.S.S.G. § 2K2.1 cmt. n.5. Section 4B1.2(a)
defines a ‘‘crime of violence’’ as:
[A]ny 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 threat-
ened use of physical force against the person of
another, or
4
(2) is burglary of a dwelling, arson, or extortion, in-
volves the use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2(a). Application Note 1 to U.S.S.G. § 4B1.2
provides that:
‘‘Crime of violence’’ includes murder, manslaughter, kid-
napping, aggravated assault, forcible sex offenses, rob-
bery, arson, extortion, extortionate extension of credit,
and burglary of a dwelling. Other offenses are included
as ‘‘crimes of violence’’ if (A) that offense has as an
element the use, attempted use, or threatened use of
physical force against the person of another, or (B) the
conduct set forth (i.e., expressly charged) in the count of
which the defendant was convicted involved the use of
explosives (including any explosive material or destruc-
tive device) or, by its nature, presented a serious poten-
tial risk of physical injury to another.
U.S.S.G. § 4B1.2 cmt. n.1.
Thomas’s prior offense of conviction, escape from an officer
in violation of D.C. Code § 22–2601(a)(2), concededly was
punishable by imprisonment for a term exceeding one year.
The current dispute concerns whether it fits the definition
borrowed from the application note of U.S.S.G. § 4B1.2 –
more specifically, whether the offense ‘‘by its nature, present-
ed a serious potential risk of physical injury to another.’’ In
the ‘‘categorical’’ approach set out in United States v. Nation,
243 F.3d 467 (8th Cir. 2001), and adopted by the District
Court, every offense of escape, ‘‘even a so-called ‘walkaway’
escape, involves a potential risk of injury to others.’’ Id. at
472. We are not certain that we are prepared to go so far.
The Nation court analyzed the offense of escape in the
criminal history of the appellant before it by looking to the
first Application Note to § 4B1.2, specifically the language
which directs the inclusion of enumerated offenses as ‘‘crimes
of violence’’ when ‘‘the conduct set forth TTT in the count of
which the defendant was convicted TTT by its very nature,
5
presented a serious potential risk of physical injury to anoth-
er.’’ U.S.S.G. § 4B1.2, cmt. n.1. The Nation court concluded
that escape categorically fits that description, because ‘‘[e]v-
ery escape TTT ‘is a powder keg, which may or may not
explode into violence and result in physical injury to someone
at any given time, but which always has the serious potential
to do so.’ ’’ 243 F.3d at 472 (quoting United States v.
Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994)). Under the view
of the Eighth Circuit and the Tenth Circuit, this violence is
inherent even in an escape by stealth, or a walkaway escape,
because ‘‘[e]ven the most peaceful escape cannot eliminate the
potential for violent conflict when the authorities attempt to
recapture the escapee.’’ Nation, 243 F.3d at 472. Accord
United States v. Hairston, 71 F.3d 115 (4th Cir. 1995);
United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999); United
States v. Harris, 165 F.3d 1062 (6th Cir. 1999).
Arguably, the approach taken by the other circuits proves
too much. While it may be true that the recapture of an
escapee inherently contains a risk of violent encounter be-
tween the escapee and the arresting officers, the same is true
as to the capture of any lawbreaker. Thus, one might argue
that under the approach of those circuits, all crimes become
crimes of violence and the crime of violence enhancement
created by § 2K2.1(a)(4)(A) destroys the base offense level
that would exist in its absence for all defendants with prior
felony convictions of whatever nature. Therefore, we are
reluctant to adopt the categorical approach. However, it
makes no difference in the outcome.
As the Nation court recognized, ‘‘the term ‘conduct’ in
§ 4B1.2(a)(2) could suggest an examination of the underlying
facts of a particular offense,’’ 243 F.3d at 472. While we have
little before us of the specifics of Thomas’s prior conviction
for escape, we do know that offense was not just ‘‘escape,’’
but specifically ‘‘escape from an officer’’ in violation of D.C.
Code § 22–2601(a)(2). That statute also outlaws ‘‘escape
from an institution.’’ D.C. Code § 22–2601(a)(1). If the
latter charge had been the offense of conviction, perhaps the
argument between the categorical or underlying facts ap-
proach to the crimes of violence question might be squarely
6
presented. But where, as here, it appears that Thomas
effected his escape from the person of an officer, the risk of
violence is much more apparent. A prisoner not returning to
a halfway house or sneaking away from an unguarded posi-
tion in the night may not inherently create a risk of harm to
others. A prisoner escaping from the custody of an officer
does create such an inherent risk.
We find ourselves, then, in the position of the Tenth Circuit
in United States v. Gosling, supra. Just as that circuit
opined, we need not ‘‘adopt either a categorical or an underly-
ing facts approach in the context of § 4B1.2.’’ 39 F.3d at
1142 n.3. Whichever approach we employ, the District Court
did not err in concluding that defendant’s escape from an
officer constituted a crime of violence within the meaning of
U.S.S.G. § 2K2.1(a)(4)(A) and setting the base level at 20.
Conclusion
For the reasons set forth above, the sentencing judgment
of the District Court is
Affirmed.