dissenting.
I agree with the majority’s treatment of Sun Bear’s prior convictions for attempted escape and attempted burglary of a commercial building. I disagree, however, with the majority’s conclusion that Sun Bear’s prior conviction for attempted auto theft is a crime of violence under U.S.S.G. § 4B1.2. Accordingly, I would reverse the district court and find the government failed to prove Sun Bear should be sentenced as a career offender.
*754A “crime of violence” is defined in U.S.S.G. § 4B1.2 as:
(a) ... 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.
U.S.S.G. § 4B1.2. The Utah statute under which Sun Bear was convicted does not require the use of physical force for a conviction. Compare Utah Code Ann. §§ 76-6-404 (theft statute) with Utah Code Ann. § 76-6-301(1) (robbery statute, which requires force). Thus, U.S.S.G. § 4B1.2(a)(l) is not implicated. At issue is whether Sun Bear’s attempted theft of an operable vehicle falls within U.S.S.G. § 4B1.2(a)(2) as a crime “otherwise in-volv[ing] conduct that presents a serious potential risk of physical injury to another.” See also U.S.S.G. § 4B1.2, cmt. n.l (“[Ojffenses are included as ‘crimes of violence’ if ... the conduct set forth (i.e., expressly charged) in the count of which the defendant was convieted[,] ... by its nature, presented a serious potential risk of physical injury to another.”).
In Utah, attempted theft of an operable motor vehicle is a third degree felony punishable by up to five years imprisonment. Utah Code Ann. §§ 76-6-404, 76-6-412(l)(a)(ii), 76-4-102, 76-3-203(3). The Utah theft statute provides that “[a] person commits theft if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof.” Utah Code Ann. § 76-6-404. Theft of an operable motor vehicle is not a separate crime under Utah law. Rather, it is a category that is used to define the penalty. Utah Code Ann. § 76-6-412(l)(a)(ii). The district court relied solely on these statutes when it determined that Sun Bear’s attempted theft offense qualified as a crime of violence for purposes of U.S.S.G. § 4B1.1. Other information, such as the charge or indictment, the judgment, or police report, was not provided to the district court.
In support of the district court, the Government argues, and the majority agrees, that when a defendant attempts to steal an operable motor vehicle the risk of physical injury to others is the same as in the case of escape or burglary. See United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (concluding that all escapes present a potential risk of injury to others such that they should be classified as crimes of violence); United States v. Hascall, 76 F.3d 902, 904 (8th Cir.1996) (finding that second degree burglary of a commercial building is a crime of violence because of the serious potential risk of physical injury to others). Based on circuit precedent, the majority adopts a rule which provides that attempted theft of an operable motor vehicle is always a crime of violence because the conduct underlying the offense presents a serious potential risk of physical injury to another. I do not agree that our prior holdings mandate this conclusion and I believe such a rule extends this court’s reasoning in Nation and Hascall too far.
While comparison in this area is a speculative enterprise, I do not believe that attempted auto theft presents the same risk of injury to others as those offenses we have previously designated crimes of violence. See United States v. Griffith, 301 F.3d 880, 885 (8th Cir.2002) (concluding that the offense of theft from a person is a “violent felony” which “involves conduct that presents a serious risk that a person may be physically injured”); Nation, 243 F.3d at 472 (stating that all es*755capes should be classified as crimes of violence); Hascall, 76 F.3d at 904 (characterizing burglary of a commercial building as a crime of violence). In a commercial burglary there is always a risk that, unknown to the burglar, the building is occupied. Such surprise is unlikely in an attempted auto theft and, if present, would typically result in a more serious charge. Cf. United States v. Jernigan, 257 F.3d 865, 866-67 (8th Cir.2001) (holding that negligent homicide conviction for operating a vehicle while intoxicated or under the influence constitutes a crime of violence). The risks attendant to attempted auto theft are also distinguishable from those associated with theft from a person which, by its nature, requires close proximity to a victim. See Griffith, 301 F.3d at 885 (quoting with approval the Sixth Circuit’s observation that “[a]ny person falling victim to a crime involving such an invasion of personal space would likely resist or defend in a manner that could lead to immediate violence” (citation omitted)). And finally, attempted auto theft does not necessarily implicate law enforcement response in the same way that attempted escape does.
All felons fear apprehension in the midst of, and following, their criminal conduct, and all may act recklessly when attempting to evade capture. But not all felonies may be read into the “otherwise” clause of section 4B1.2(a)(2). Significantly, even felonies which present a “potential risk” of injury to others are expressly excluded from the definition. Instead, only those which present a “serious potential risk” warrant designation as crimes of violence for career offender purposes. Under Utah’s criminal code, scenarios involving theft but not violence are unlimited. See, e.g., State v. Larocco, 794 P.2d 460 (Utah 1990) (defendant convicted under Utah Code Ann. § 76-6-404 where a car salesman allowed the defendant to take a car for an unaccompanied test drive and the defendant failed to return the car or pay for it); State v. Seekford, 638 P.2d 525 (Utah 1981) (defendant convicted under Utah’s general theft statute where he failed to return rental car). Given this, I do not believe it should be categorically held that every attempted auto theft presents the serious potential risk mandated by U.S.S.G. § 4B1.2(a)(2).
In a recent decision, a majority of the Fifth Circuit held that “simple motor vehicle theft,” by its nature, does not involve conduct that presents a serious potential risk of physical injury to another. United States v. Charles, 301 F.3d 309, 312-14 (5th Cir.2002) (en banc). The facts of Charles are nearly identical to those at issue here. The defendant appealed the district court’s determination that theft of a vehicle is a crime of violence under § 4B1.2(a)(2). Id. at 311. The general statute under which the defendant was convicted defined theft as “unlawfully appropriating] property with the intent to deprive the owner of property.” Id. at 313 (citing Tex. Pen.Code § 31.03(a)). In addition, the defendant’s indictment from his motor vehicle theft offense was made available. Id.
Before making a determination as to the theft offense, the Fifth Circuit held:
Based on the language in § 4B1.2(a)(2) and in Application Note 1, ... a crime is a crime of violence under § 4B1.2(a)(2) only if, from the face of the indictment, the crime charged or the conduct charged presents a serious potential risk of injury to a person. Injury to another person need not be a certain result, but it must be clear from the indictment that the crime itself or the conduct specifically charged posed this serious potential risk.
*756Id. at 314. The Fifth Circuit then reviewed the defendant’s prior theft offense. It concluded that although the defendant’s conduct presented a risk of injury to property, there was “no suggestion in the indictment that [the defendant’s] conduct in stealing the car presented a serious potential risk of physical injury to another person.” Id. Thus, it found that the defendant’s prior theft offense was not a crime of violence. Id. In so finding, the Fifth Circuit offered the following explanation: “Application Note 1, by requiring that other crimes must ‘by [their] nature’ present a ‘serious potential risk of physical injury to another,’ calls for a categorical inclusion or exclusion of crimes and/or conduct. Simple motor vehicle theft does not, by its nature, present this risk.” Id.
I agree with the Fifth Circuit’s reasoning in Charles and would hold that attempted theft of an operable motor vehicle is not a crime of violence. See also United States v. Crowell, 997 F.2d 146, 149 (6th Cir.1993) (holding that aggravated motor vehicle theft, as defined by Colorado law, is not, per se, a crime of violence).
For these reasons, I respectfully dissent.