[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 18, 2001
No. 00-14729
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 97-00011-CR-2-WLS-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNY GAY,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Georgia
_________________________
(May 18, 2001)
Before ANDERSON, Chief Judge, HULL and FAY, Circuit Judges.
PER CURIAM:
Denny Gay appeals his 162-month sentence resulting from his plea of guilty
to possession with intent to distribute methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1). On appeal, Gay argues that the district court erred in refusing to hold
an evidentiary hearing regarding the factual circumstances of his prior escape
conviction. Gay also argues that the district court erred in treating him as a career
offender using his prior escape conviction as one of the qualifying criteria. We
affirm.
We review a district court’s denial of an evidentiary hearing for abuse of
discretion. United States v. Dynalectric Co., 859 F.2d 1559, 1580 (11th Cir. 1988),
cert. denied, 490 U.S. 1006 (1989). We review a district court’s factual findings
for clear error and its application of the guidelines to those facts de novo. United
States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998).
Upon review of the presentence investigation report and the sentencing
transcript, and upon consideration of the briefs of the parties, we find no reversible
error.
Denny Gay pled guilty to a superseding information that charged him with
possession with intent to distribute methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1). According to the Presentence Investigation, an investigation was
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conducted by several state and federal drug enforcement agencies, targeting a
methamphetamine trafficking organization responsible for the distribution of the
drug from Florida to Georgia. The investigation revealed that Denny Gay, among
other individuals, served as a distributor of the drug. In this position, Gay
obtained quantities of the drug, used some of the drug personally, and sold a
portion of the drugs to other people. While no contraband was seized as a result of
this investigation, Gay and the government stipulated that Gay was accountable for
at least 20 grams but less than 40 grams of a mixture containing methamphetamine.
Prior to Gay’s sentencing hearing, the probation department prepared a PSI,
recommending that he be classified as a career offender with an elevated base
offense level of 32, rather than his original base offense level of 18. Gay objected
to this classification and argued that, because the underlying facts of his prior
escape conviction involved walking away from a non-secure community
corrections facility, the offense did not constitute a violent crime. Gay also
requested an evidentiary hearing to present evidence regarding the nature and
circumstances of the escape.
After considering cases from other circuits as well as looking at the language
of U.S.S.G. § 4B1.2(a)(2), the district court found that the escape was a “technical”
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one in that Gay had not “busted out in the sense with blazed guns and fighting
people . . . or . . . even threatened or did anything to anyone.” Nevertheless, the
court determined that an escape conviction is an offense that “otherwise involves
conduct that presents a serious potential risk of physical injury to another,” and, as
such, overruled Gay’s objection. The court also concluded that, because the
government was not contesting the fact that the escape charge was based upon Gay
leaving a community corrections center without authorization, and because the law
does not support a broad review of the circumstances of the escape, it would not
grant Gay’s motion for an evidentiary hearing.
Gay argues that the district court erred in refusing to hold an evidentiary
hearing regarding the factual circumstances of his prior escape conviction. Gay
asserts that the court mistakenly believed that it was precluded from holding such a
hearing and believing that a hearing would be futile because all escapes inherently
possess the “serious potential risk of physical injury to another” as contemplated
by U.S.S.G. § 4B1.2(a)(2). Gay states that the court should not have relied on the
holdings of other circuit courts in deciding whether escape constitutes a crime of
violence because the courts did not have the same access to the underlying facts.
Citing to a footnote in Walker v. Mortham, 158 F.3d 1177 (11th Cir. 1998), cert.
denied, 528 U.S. 809 (1999), which examined the presumption existing in civil
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rights cases, Gay also asserts that the court should have treated his case like an
employment discrimination claim and allowed him to rebut the presumption that
escape constitutes a crime of violence.
In response, the government argues that no factual dispute existed, as the
government did not challenge the PSI’s description of the escape as a “walk-away”
from a diversion center without authority, and, as such, that Gay has not shown
how he was harmed by the court’s refusal to conduct an evidentiary hearing. The
government also asserts that, because this Court has held that courts should only
look at the elements of an offense in determining whether an underlying conviction
qualifies as a crime of violence for purposes of classifying a defendant as a career
offender, the district court was prohibited from reviewing the underlying facts of
the escape conviction.
As we have stated, a district court may only inquire into the conduct
surrounding a conviction if ambiguities in the judgment make the crime of violence
determination impossible from the face of the judgment, and then may only
examine easily produced and evaluated court documents, including the judgment
of conviction, charging papers, plea agreement, presentence report, and findings of
the sentencing judge. United States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995). If
no ambiguities exist, the guidelines prohibit the district court from reviewing the
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underlying facts of a conviction to determine whether it is a crime of violence for
career offender purposes. United States v. Rucker, 171 F.3d 1359, 1362 (11th Cir.),
cert. denied, 528 U.S. 976 (1999).
Gay was convicted of felony escape, in violation of O.C.G.A. § 16-10-52,
which provides that a person commits the offense of escape when he or she is
confined for a variety of reasons and “intentionally escapes from lawful custody or
from any lawful place of lawful confinement,” or “intentionally fails to return as
instructed to lawful custody.” O.C.G.A. § 16-10-52(a) (1982-2000). As this statute
is not ambiguous on its face, the district court did not abuse its discretion when it
declined to hold an evidentiary hearing on the underlying facts of the escape
conviction. Regardless, the court and both parties agreed that the underlying facts
involved a situation where Gay walked away from a diversion facility in a non-
violent manner, and Gay failed to establish how any further review of “easily
produced and evaluated court documents” would produce a different ruling. As
such, the court did not abuse its discretion when it refused to conduct an
evidentiary hearing on the prior escape conviction.
Gay also argues that the district court erred in treating him as a career
offender by using his escape conviction as one of the qualifying criteria. Citing to
no authority, Gay asserts that the district court unjustly decided that the offense of
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escape creates the potential risk of injury when so many other offenses also may
possess an equal degree of danger, and that the court unfairly placed all escape
situations into the same category. Gay points to the separate treatment of different
types of escapes in U.S.S.G. § 2P1.1(b), as evidence that the guidelines
acknowledge a difference between various types of escape. Gay admits that other
circuits have found that the offense of escape presents a potential risk of injury to
others, but argues that these opinions are distinguishable because the courts either
looked at the offense of escape in the abstract or the offenses involved escapes
from secure federal facilities. Finally, Gay argues that his escape did not fit within
the “heartland” of the guidelines’ intent.
In response, the government agrees that this Court has not yet considered
whether an escape is a crime of violence as defined by U.S.S.G. § 4B1.2(a)(ii). The
government also acknowledges that the crime of escape for which Gay was
convicted did not have the use of force or threatened use of force as an element of
the offense. It argues, however, that the reasoning of all of the other circuits,
which have addressed this issue and concluded that escape does present the risk of
physical injury to others and falls within the definition of a violent offense, is
sound and should be followed by this Court.
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Pursuant to § 4B1.1, a defendant qualifies as a career offender if (1) he is at
least 18 years old, (2) the instant offense is a felony that is either a crime of
violence or a controlled substance offense, and (3) he has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1. This provision is interpreted strictly, and the government must
demonstrate all three elements by a preponderance of the evidence. Spell, 44 F.3d
at 938.
As both parties agree that Gay was over age 18 when convicted and that the
instant offense and Gay’s prior burglary conviction are qualified felonies, the issue
before this Court is whether Gay’s prior escape conviction constitutes a crime of
violence justifying career offender status. A crime of violence, as used in § 4B1.1,
is defined by the guidelines as an offense punishable by imprisonment exceeding
one year that involves the use or threatened use of physical force against another
person or an offense that 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.” U.S.S.G. § 4B1.2(a).
While this Court has not decided whether escape is a crime of violence
under § 4B1.2(a), every other circuit that has applied this analysis has determined
that escape does involve conduct that “presents a serious potential risk of physical
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injury to another.” The Fourth Circuit, in United States v. Dickerson, 77 F.3d 774,
776-77 (4th Cir.), cert. denied, 519 U.S. 843 (1996), in looking at whether an
attempted escape from a federal maximum security prison constituted a crime of
violence under the career offender provision, determined that it did not involve the
use of physical force and did not constitute one of the specifically named crimes of
violence in § 4B1.2 or its accompanying commentary, but that, by its nature, the
offense presented a potential risk of violence. Id. Looking at escape in the
“abstract,” the court reasoned that even an escape by stealth presented this risk
because, “the escapee, intent on his goal of escaping, faces the decision of whether
to dispel the interference or yield to it.” Id. at 777.
Similarly, the Tenth Circuit in United States v. Mitchell, 113 F.3d 1528,
1532-33 (10th Cir. 1997), cert. denied, 522 U.S. 1063 (1998), in looking at prior
escapes that were “nonviolent walk-aways” from unsecured correctional facilities,
reaffirmed its holding in United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.
1994), that regardless of the facts underlying a particular escape, a defendant’s
escape conviction “by its nature present[s] a serious potential risk of physical
injury to another.” In reaching its holding, the court clarified that it did not look to
the underlying facts of the conviction, but rather at the “expressly charged
conduct.” The court in Mitchell, citing to Gosling, 39 F.3d at 1142, reasoned that:
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[E]very escape scenario 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 . . .
Indeed, even in a case where a defendant escapes from a jail by stealth
and injures no one in the process, there is still a serious potential risk
that injury will result when officers find the defendant and attempt to
place him in custody.
Mitchell, 113 F.3d at 1533.
Following this line of cases, the Sixth Circuit, in United States v. Harris, 165
F.3d 1062, 1068 (6th Cir. 1999), and the Fifth Circuit, in United States v. Ruiz,
180 F.3d 675, 676-77 (5th Cir. 1999), have held that the crime of escape, by its
nature, presents a serious potential risk of physical injury. In Ruiz, the Fifth
Circuit also looked at a defendant who walked away from a prison camp where no
physical barriers prevented the escape and no guards were armed, and who asked
the court to look at the underlying facts. The court, nevertheless, found the
reasoning of the Fourth, Sixth, and Tenth Circuits to be persuasive and concluded
that the conduct constituted a crime of violence under § 4B1.2. Ruiz, 180 F.3d at
676-77.
Most recently, the Eighth Circuit followed this reasoning and held in United
States v. Nation, Nos. 00-1931, 00-1941 (8th Cir. March 16, 2001), that every
escape, even a so-called “walkaway” escape, involves a potential risk of injury to
others, and that escape categorically is a crime of violence as defined in U.S.S.G.
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§ 4B1.2. While the court acknowledged that the term “conduct” in § 4B1.2(a)(2)
could suggest an examination of the underlying facts of a particular offense, the
court determined that the guidelines’ first application note, which directs the court
to look at the “nature” of an offense, was controlling and reasoned that “[e]ven the
most peaceful escape cannot eliminate the potential for violent conflict when the
authorities attempt to recapture the escapee.” Id.
We agree with the reasoning of these courts and now hold that a prior escape
conviction qualifies as a “crime of violence” under the career offender guideline.
While Gay is correct in stating that U.S.S.G. § 2P1.1(b), recognizes specific
characteristics of escape, this distinction is not applicable to the separate and
distinct definition of “crime of violence” in U.S.S.G. § 4B1.2(a). In addition,
while this Court has determined that the commentary to the guidelines precludes a
purely categorical approach to determining whether a prior conviction is a crime of
violence within the § 4B1.2 career criminal guideline, we have held that “a district
court only may inquire into the conduct surrounding a conviction if ambiguities in
the judgment make the crime of violence determination impossible from the face of
the judgment itself.” Spell, 44 F.3d at 939. Because the offense of escape does not
contain such ambiguities and does present the potential risk of violence, even when
it involves a “walk-away” from unsecured correctional facilities, the district court
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did not err in holding that the escape conviction qualified as a “crime of violence”
under the career offender guideline.
AFFIRMED.
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