UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 96-4073
CLARK MCKNIGHT,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-95-337)
Argued: July 10, 1996
Decided: August 2, 1996
Before WILKINSON, Chief Judge, and HAMILTON and
WILLIAMS, Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
ARGUED: Elisabeth Ann Sachs, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alex-
andria, Virginia, for Appellant. Frank Salvato, Alexandria, Virginia,
for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellant.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
The United States (the government) appeals the sentence of Clark-
son McKnight (McKnight) imposed by the district court following
McKnight's plea of guilty to felony attempted escape from custody,
see 18 U.S.C. § 751(a). Relying on the authority of United States v.
Dickerson, 77 F.3d 774 (4th Cir. 1996), petition for cert. filed, ___
U.S.L.W. ___ (U.S. June 5, 1996) (No. 95-9207), the government
contends that the district court erroneously concluded that McKnight
did not qualify as a career offender under United States Sentencing
Commission, Guidelines Manual (USSG), § 4B1.1 (Nov. 1995). We
agree, and therefore, vacate McKnight's sentence and remand for
resentencing.
I.
On or about July 18, 1995, McKnight, while serving a twenty-year
sentence for two felonies at the Lorton Reformatory, a federal maxi-
mum security prison, attempted to escape from custody. Specifically,
McKnight hid beside certain ventilation equipment in the recreation
yard until nightfall. Eventually, McKnight made his way to the outer
perimeter fence. When he neared the top of this fence, a correctional
officer spotted him and fired two shots, neither of which injured
McKnight, causing McKnight to drop to the ground between the
fences and cease movement. Correctional officers then apprehended
McKnight and took him into custody without further incident.
A federal grand jury charged McKnight in an indictment that read,
in pertinent part, as follows:
On or about July 18, 1995, at the Occoquan facility of the
Lorton Reformatory, in Fairfax County, Virginia, within the
Eastern District of Virginia, the defendant CLARK MC-
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KNIGHT, having been convicted of a felony and lawfully
committed to the custody of the Attorney General and her
authorized representative, namely, the District of Columbia
Department of Corrections, by virtue of a Judgment and
Commitment Order of the District of Columbia Superior
Court, did unlawfully, knowingly and willfully attempt to
escape from such custody.
(In violation of Title 18, United States Code, Section
751(a)).
(J.A. 5). In October 1995, McKnight pleaded guilty to this charge.
At McKnight's sentencing hearing in December 1995, the govern-
ment contended that McKnight should be sentenced as a "career
offender" under the Career Offender provision of the Sentencing
Guidelines, see USSG § 4B1.1. McKnight opposed the government's
contention on the ground that the crime of felony attempted escape
from custody, in violation of 18 U.S.C. § 751(a), did not constitute a
crime of violence under the Career Offender provision. Agreeing with
McKnight, the district court refused to sentence McKnight as a career
offender.
The district court then calculated McKnight's total offense level at
eleven under the Sentencing Guidelines. In reaching this calculation,
the district court used the base offense level provided for the crime
of attempting to escape while in custody by virtue of a conviction, see
USSG § 2P1.1(a)(1), and then subtracted two levels for McKnight's
acceptance of responsibility, see USSG § 3E1.1. McKnight had a
criminal history category of VI, which combined with his total
offense level of eleven to produce a sentencing range of twenty-seven
to thirty-three months' imprisonment. Within this range, the district
court sentenced McKnight to twenty-seven months' imprisonment.
The government noted a timely appeal.
II.
On appeal, the government challenges the district court's refusal to
sentence McKnight as a career offender under the Career Offender
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provision of the Sentencing Guidelines, see USSG § 4B1.1. Under
that provision, a defendant is subject to increased penalties if "(1) the
defendant was at least eighteen years old at the time of the instant
offense, (2) the instant offense of conviction is a felony that is either
a crime of violence or a controlled substance offense, and (3) the
defendant has at least two prior felony convictions of either a crime
of violence or a controlled substance offense." USSG § 4B1.1.
In this case, the parties do not dispute that McKnight met the first
and third elements of the Career Offender provision of the Sentencing
Guidelines. The debate here surrounds the second element; whether
the crime of felony attempted escape from custody, in violation of 18
U.S.C. § 751(a), constitutes a "crime of violence" under the Career
Offender provision of the Sentencing Guidelines. In Dickerson,*
under facts materially indistinguishable from this case, we recently
answered this question in the affirmative. See 77 F.3d at 777. Under
this authority, we vacate McKnight's sentence and remand this case
to the district court for resentencing. On remand, the district court
should resentence McKnight as a career offender under USSG
§ 4B1.1.
VACATED AND REMANDED FOR RESENTENCING
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*We note that the district court did not have the benefit of our decision
in Dickerson when sentencing McKnight.
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