                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         FEB 5 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

               v.                                       No. 98-6104
                                                  (D.C. No. CR-97-172-A)
 ADAM GREGORY ORR,                                      (W.D. Okla.)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.


      Defendant Adam Gregory Orr appeals his conviction and sentence for

attempted escape from county jail. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), and affirm.

                                         I.

      On August 3, 1997, Orr was incarcerated in a single occupancy cell on the

tenth floor of the Oklahoma County Jail awaiting sentencing on federal firearms



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
convictions. Orr had a non-contact visit with his mother that afternoon at the jail.

After she left, Orr told a correctional officer that he had information about a

possible escape attempt. During the conversion, Orr admitted he had been

planning the escape but that his mother had convinced him to abandon the plan.

Orr divulged all of the details of the escape plan because he thought the

authorities “would be easier on him if he came forward and confessed.” Record

III at 37.

       Orr was indicted for attempted escape, in violation of 18 U.S.C. § 751(a).

Prior to trial, the government gave notice pursuant to Fed. R. Evid. 404(b) that it

intended to introduce evidence of Orr’s previous uncharged escape and illegal

possession of contraband offenses. Orr responded with a motion in limine to

exclude all such evidence as irrelevant and unduly prejudicial. The district court

determined the probative value of the 404(b) evidence was not substantially

outweighed by its potential for unfair prejudice and authorized admission of

certain relevant conduct. A jury found Orr guilty of attempted escape and he was

sentenced to thirty months’ imprisonment.

                                          II.

Sufficiency of evidence

       Orr contends there was insufficient evidence to support his conviction.

Sufficiency of the evidence is a question of law subject to de novo review.


                                         -2-
United States v. Carter , 130 F.3d 1432, 1439 (10th Cir. 1997),    cert. denied , 118 S.

Ct. 1856 (1998). Evidence is sufficient to support a conviction if the evidence

and all reasonable inferences derived therefrom, viewed in a light most favorable

to the government, would allow a reasonable jury to find the defendant guilty

beyond a reasonable doubt.     Id. In undertaking this analysis, we do not scrutinize

individual pieces of evidence in isolation; rather, we examine the sufficiency of

the evidence by “considering the collective inferences to be drawn from the

evidence as a whole.”   Id. We will reverse a defendant’s conviction only if no

reasonable jury could have reached the disputed verdict.     Id.

      To secure a conviction under 18 U.S.C. § 751(a), the government must

prove beyond a reasonable doubt that defendant (1) escaped or attempted to

escape, (2) from the custody of the Attorney General or from an institution in

which he was confined by the Attorney General, (3) where the custody or

confinement was by virtue of an arrest on a felony charge or conviction of any

offense. United States v. Dickerson , 77 F.3d 774, 776 (4th Cir. 1996);     United

States v. Davis , 8 F.3d 923, 927 (2d Cir. 1993);   United States v. Harper , 901 F.2d

471, 473 (5th Cir. 1990);    United States v. Vanover , 888 F.2d 1117, 1121 (6th Cir.

1989). Orr challenges only the first prong of this test, contending he did not

attempt to escape.




                                           -3-
              A person is guilty of attempt if, acting with the kind of
       culpability otherwise required for commission of the crime, he
       purposely does or omits to do anything which, under the
       circumstances as he believes them to be, is an act or omission
       constituting a substantial step in a course of conduct planned to
       culminate in his commission of a crime.

Davis , 8 F.3d at 927 (citations and alterations omitted). Thus, the crime of

attempt requires proof of (1) the requisite criminal intent, and (2) an act or

omission marking a “substantial step” in furtherance of the substantive offense.

United States v. Sullivan , 919 F.2d 1403, 1429 (10th Cir. 1990). The threshold

substantial step must entail “conduct strongly corroborative of the firmness of the

defendant’s criminal intent.”      United States v. Savaiano , 843 F.2d 1280, 1296

(10th Cir. 1988).

       Orr insists he did little more than engage in preparation for a possible

escape and did not take any substantial steps to consummate his intentions. The

dividing line between preparation and attempt is difficult to discern. Conduct

may amount to a substantial step if it is “something more than mere preparation,

yet [perhaps] less than the last act necessary before the actual commission of the

substantive crime.”    Davis , 8 F.3d at 927 (quotations omitted). Therefore, the

inquiry is highly fact specific.     See United States v. DeSantiago-Flores   , 107 F.3d

1472, 1479 (10th Cir. 1997),       overruled on other grounds   in United States v.

Holland , 116 F.3d 1353 (10th Cir. 1997). We have noted the substantial step test

       shifts the emphasis from what remains to be done, the chief concern

                                              -4-
      of the proximity tests, to what the actor has already done. That
      further major steps must be taken before the crime can be completed
      does not preclude a finding that the steps already undertaken are
      substantial. It is expected, in the normal case, that this approach will
      broaden the scope of attempt liability.

Savaiano , 843 F.2d at 1297.

      Viewed in the light most favorable to the government, there is ample

evidence to support defendant’s attempted escape conviction. In     United States v.

Prichard , 781 F.2d 179, 181-82 (10th Cir. 1986), we held the reconnoitering of

the object of a crime, combined with the collection of instruments to be used in

that crime, constituted a “substantial step” for purposes of an attempt offense.

Orr’s acts easily satisfy that test. At the time of his “confession,” Orr had

developed an elaborate plan of escape, had spent more than a week engineering a

digging tool from his desk, had dug a hole in the wall between his cell and an

adjacent cell, and had constructed a makeshift rope from prison blankets. As the

district court correctly observed in its sentencing order, only minor details

remained for Orr to successfully complete his escape. There was sufficient

evidence to support the conviction.



Rule 404(b) evidence

      Orr argues the district court erroneously admitted evidence of his prior

escape and prior possessions of contraband under Fed. R. Evid. 404(b), which


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provides in relevant part:

                Evidence of other crimes, wrongs, or acts is not admissible to
         prove the character of a person in order to show action in conformity
         therewith. It may, however, be admissible for other purposes, such
         as proof of motive, opportunity, intent, preparation, plan, knowledge,
         identity, or absence of mistake or accident.

We review the district court’s decision to admit Rule 404(b) evidence for an

abuse of discretion.   United States v. Hardwell , 80 F.3d 1471, 1488 (10th Cir.

1996).

         There are four requirements for admissibility under Rule 404(b): (1)

evidence of other crimes, wrongs, or acts must be introduced for a proper

purpose; (2) the evidence must be relevant; (3) the court must make a Rule 403

determination whether the probative value of the similar acts is substantially

outweighed by its potential for unfair prejudice; and (4) the court, upon request,

must instruct the jury that the evidence of similar acts is to be considered only for

the limited purpose for which it was admitted.          Huddleston v. United States , 485

U.S. 681, 691-92 (1988);     United States v. Fitzherbert , 13 F.3d 340, 343 (10th Cir.

1993). The district court conducted a hearing and determined the evidence could

be used to show Orr’s plan, intent, knowledge, motive, and absence of mistake

with regard to the attempted escape charge.         1




        The district court permitted Orr to maintain a standing objection to the
         1

404(b) evidence. We have severely criticized use of continuing objections,
                                                                     (continued...)

                                              -6-
      Orr’s theory in this case was that he abandoned his escape attempt.

Although neither side broaches the issue, it is not clear that abandonment is a

valid defense to an attempt crime. The problem with such a defense is that a

defendant may have taken the requisite “substantial step” in furtherance of the

crime, thus completing the attempt, before deciding to renounce or abandon

consummation of the offense.   United States v. Shelton , 30 F.3d 702, 705 (6th

Cir. 1994).

      If abandonment is a proper affirmative defense to an attempt crime, Orr’s

prior escape and contraband possession charges were correctly admitted to rebut

his abandonment theory. The evidence underscored that Orr’s conduct was not an

isolated occurrence, but was part of a longstanding plan/intent to escape from

custody. The government sought to show the only reason Orr revealed his escape

plans was because his mother informed him officials had increased pressure on

her and were planning to increase their surveillance of Orr. Considering Orr’s

mother had facilitated an earlier escape, the evidence was particularly important

to show his motivations for disclosing his plans.

      If abandonment is not a valid defense, Orr’s prior bad acts are still relevant.


      1
        (...continued)
particularly with respect to evidence offered pursuant to Rules 403 and 404. See
United States v. McVeigh , 153 F.3d 1166, 1199-1201 (10th Cir. 1998).
Nevertheless, we proceed under the assumption that Orr sufficiently preserved his
objections to the 404(b) evidence.

                                         -7-
His prior escape and prior possession of contraband highlight his planning,

preparation, and intent to flee. His repeated comments to jail officials regarding

his steadfast intent to escape buttress this evidence. The fact that Orr employed a

different method of escape and utilized tools unique from those found in his

possession earlier is irrelevant.   See United States v. Archer , 843 F.2d 1019,

1023-24 (7th Cir. 1988). Each incident reflects his desire and intent to escape

and demonstrates his knowledge regarding specific modes of escape. By insisting

he had renounced any escape plans, Orr put his intent directly at issue and the

government had every right to attack this theory with evidence of prior escape

attempts. See Hardwell , 80 F.3d at 1489 (government may admit prior bad acts

under 404(b) to show predisposition when defendant raises entrapment defense).

As Orr’s intent was a disputed and critical issue in this case, the district court did

not abuse its discretion in admitting evidence of prior bad acts pursuant to 404(b).



Sentencing

       Orr contends the district court improperly applied the sentencing guideline

for escape, U.S.S.G. § 2P1.1, rather than the guideline for attempt, U.S.S.G. §

2X1.1. We review the district court’s legal interpretation of the sentencing

guidelines de novo and its findings of fact in applying the guidelines for clear

error. United States v. Valdez , 158 F.3d 1140, 1141 (10th Cir. 1998).


                                            -8-
      The actual source of Orr’s concern rests in the district court’s refusal to

grant a three-level reduction pursuant to § 2X1.1(b)(1). Under the general

attempt guideline, the court must apply the “base offense level from the guideline

for the substantive offense [§ 2P1.1], plus any adjustments from such guideline

for any intended offense conduct that can be established with reasonable

certainty.” U.S.S.G. § 2X1.1(a). Here, the court correctly applied a base offense

level of 13, as derived from § 2P1.1.

      The attempt guideline also contemplates a reduction in the base offense

level for certain eligible defendants:

             If an attempt, decrease by 3 levels, unless the defendant
      completed all the acts the defendant believed necessary for
      successful completion of the substantive offense or the circumstances
      demonstrate that the defendant was about to complete all such acts
      but for apprehension or interruption by some similar event beyond
      the defendant’s control.

Id. § 2X1.1(b)(1). The district court acknowledged this provision, but determined

Orr was not entitled to such a reduction:

              The evidence at trial demonstrated that the defendant was
      about to complete all acts necessary for the escape “but for
      apprehension or interruption by some similar event beyond the
      defendant’s control.” Only minor details remained for defendant to
      successfully complete his escape. The evidence at trial was that
      defendant did not voluntarily abandon his escape but did so only
      after it became clear that he would probably be caught if he
      attempted to escape. Therefore, pursuant to U.S.S.G. § 2X1.1(b)(1),
      no decrease is warranted.

Record I, Doc. 26 at 4. We see no clear error in this assessment of the facts.

                                            -9-
      At oral arguments, Orr insisted he was entitled to a three-point reduction

pursuant to § 2X1.1(b)(1) because nothing      beyond his control contributed to

interruption of his plans or to his apprehension. We disagree. ATF agents had

visited the home of Orr’s mother only two days prior to Orr’s confession. During

her visit to the jail, Orr’s mother pressured Orr to disclose his escape intentions.

This evidence is sufficient to support a finding of “constructive apprehension.”

The record suggests the primary reason Orr opted not to carry out the final stages

of his escape attempt was because he feared capture by authorities.

      In most prosecutions for conspiracies or attempts, the substantive
      offense was substantially completed or was interrupted or prevented
      on the verge of completion by the intercession of law enforcement
      authorities or the victim. In such cases, no reduction of the offense
      level is warranted. Sometimes, however, the arrest occurs well
      before the defendant or any co-conspirator has completed the acts
      necessary for the substantive offense. Under such circumstances, a
      reduction of 3 levels is provided under § 2X1.1(b)(1) or (2).

U.S.S.G. § 2X1.1, comment (backg’d). The Sentencing Commission felt “near

accomplishment of the criminal object” implicated a sufficiently high degree of

actual harm and revealed a sufficient degree of culpability to justify the identical

punishment that would be imposed for a completed crime.        United States v.

Chapdelaine , 989 F.2d 28, 36 (1st Cir. 1993). “It is nearness of the crime to

achievement--not the precise nature of the involuntary interruption--that defeats

the reduction available for conspiracies and attempts that have not progressed

very far.” Id. ; accord United States v. Medina , 74 F.3d 413, 419 (2d Cir. 1996).

                                            -10-
Orr was on the verge of completing the final acts of his attempted escape when

his mother visited him in jail. The district court did not err in denying a three-

level reduction under § 2X1.1(b)(1).

      Orr’s conviction and sentence are AFFIRMED.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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