United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2180
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Ronnie Delvon Adams, *
*
Appellant. *
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Submitted: November 15, 2005
Filed: March 23, 2006
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Before ARNOLD, BEAM, and RILEY, Circuit Judges.
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RILEY, Circuit Judge.
Ronnie Delvon Adams (Adams) appeals the district court’s1 decision to
sentence him as an armed career criminal pursuant to the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(1). We affirm.
I. DISCUSSION
The ACCA provides a sentence enhancement for individuals who have at least
three prior convictions for a “violent felony.” Id. The ACCA defines a “violent
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
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) . . . otherwise involves conduct that presents
a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B). The district
court sentenced Adams as an armed career criminal because he has prior convictions
for (1) tampering with a motor vehicle, in violation of Mo. Rev. Stat. § 569.080.1(2);
(2) failure to return to confinement, in violation of Mo. Rev. Stat. § 575.220; and (3)
two second-degree assaults. Adams does not challenge that his two assault
convictions constitute violent felonies under the ACCA, but he maintains his prior
convictions for tampering with a motor vehicle and failure to return to confinement
are not violent felonies under the ACCA.
A. Tampering With a Motor Vehicle
Following our recent en banc decision in United States v. McCall, ___ F.3d
___, 2006 WL 625687 (8th Cir. March 15, 2006)], when determining whether a prior
conviction is a violent felony within the meaning of the “otherwise involves”
provision in § 924(e)(2)(B)(ii), we “first determine whether the elements of that prior
crime involved or described conduct that necessarily entails a serious potential risk of
physical injury” to another. Id. at *2 (internal quotation omitted). In Missouri, a
person commits the crime of tampering with a motor vehicle if “[h]e or she knowingly
receives, possesses, sells, alters, defaces, destroys or unlawfully operates an
automobile . . . without the consent of the owner thereof.” Mo. Rev. Stat.
§569.080.1(2). In United States v. Johnson, 417 F.3d 990, 997-99 (8th Cir. 2005), we
analyzed whether this offense is a violent felony for purposes of the ACCA. We
compared the offense of tampering by possession to tampering by operation, and
reasoned “tampering by operation represents an escalated, and more dangerous, form
of tampering by possession.” Johnson, 417 F.3d at 998. Under Missouri law,
“[t]ampering by possession . . . differs from tampering by operation in that the former
offense merely requires a defendant to enter an automobile in a manner consistent
with possession while the latter offense requires a defendant to start the automobile’s
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engine.” Id. We went on to hold “the risks associated with tampering by operation
are sufficient to warrant classifying it as a violent felony.” Id. at 999.
Because the Missouri crime of tampering with a motor vehicle is
“overinclusive” in that tampering by operation involves conduct that presents a
serious potential risk of physical injury to another, while tampering by possession
does not, we next look to the judicial record to determine whether Adams’s conduct
involved tampering by operation. See McCall, 2006 WL 625687, at *5-6 (noting the
judicial record review is limited by Taylor v. United States, 495 U.S. 575, 602 (1990),
and Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 1263 (2005)). According
to the charging document introduced with the government’s sentencing memorandum
in the case at bar, Adams “knowingly and without the consent of the owner unlawfully
operated an automobile.” Because Adams’s conduct involved tampering by operation,
we hold the district court did not err in concluding Adams’s conviction qualified as
a violent felony predicate offense under the ACCA. See Johnson, 417 F.3d at 997-99.
B. Failure to Return to Confinement
In Missouri, a person commits the crime of failure to return to confinement if,
“while serving [a] sentence for any crime wherein he is temporarily permitted to go
at large without guard, he purposely fails to return to confinement when he is required
to do so.” Mo. Rev. Stat. § 575.220.1. In United States v. Abernathy, 277 F.3d 1048
(8th Cir. 2002), we held “walkaway” escape constitutes a violent felony under the
ACCA. Id. at 1051 (relying on United States v. Nation, 243 F.3d 467, 472 (8th Cir.
2001), which held a “walkaway” escape is a crime of violence under U.S.S.G.
§ 4B1.2(a)). We see no material distinction between “walkaway” escape and failure
to return to confinement. See United States v. Maddox, 388 F.3d 1356, 1368-69 (10th
Cir. 2004) (relying on precedent holding escape is a violent felony for purposes of the
ACCA and rejecting defendant’s argument that “failure to return [to prison] from the
work-release program does not constitute a violent felony”), cert. denied, 125 S. Ct.
1689 (2005); cf. United States v. Winn, 364 F.3d 7, 12 (1st Cir. 2004) (holding
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“failure to return from a break at a halfway house” constitutes a “crime of violence”
under U.S.S.G. § 4B1.2(a)(2)); United States v. Bryant, 310 F.3d 550, 553-54 (7th
Cir. 2002) (holding same with regard to “failure to return to a halfway house after
being absent with permission”).2 We therefore hold the district court did not err in
concluding Adams’s conviction for failure to return to confinement qualified as a
violent felony predicate offense under the ACCA.
II. CONCLUSION
For the reasons stated, we affirm Adams’s sentence.
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2
Although not necessarily controlling, we generally apply cases construing what
is a “crime of violence” under U.S.S.G. § 4B1.2 when determining what is a “violent
felony” under the ACCA. See United States v. Levering, 431 F.3d 289, 294 (8th Cir.
2005).
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