                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           __________

            No. 00-1931
           __________

United States of America,              *
                                       *
              Appellee,                *
                                       *
      v.                               *
                                       *
Larry Jack Nation,                     *
                                       *
              Appellant.               *

           __________                      Appeals from the United States
                                           District Court for the
            No. 00-1941                    Eastern District of Arkansas.
           __________

United States of America,              *
                                       *
              Appellant,               *
                                       *
      v.                               *
                                       *
Larry Jack Nation,                     *
                                       *
              Appellee.                *

                                  ___________

                             Submitted: December 12, 2000

                                 Filed: March 16, 2001
                                  ___________
Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD, and HANSEN,
      Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

       Larry Jack Nation appeals from his conviction in district court for being a felon
in possession of a firearm. The United States cross-appeals, contending that the district
court erred in sentencing Nation. We affirm the conviction, but vacate the sentence and
remand for further proceedings.

                                            I.

       During the course of a search otherwise unrelated to this case, officers of the
Cleburne County, Arkansas, sheriff’s department performed a consensual search of a
home occupied by Nation and owned by James Wright. During the search, officers
detected the strong odor of ether, a substance commonly utilized in the production of
methamphetamine. When questioned about the odor, Wright informed officers that he
had been using ether to clean a carburetor in a small storage shed on the property.
Wright directed the officers to the shed, which contained significant quantities of starter
fluid (ether), numerous new and used coffee filters, plastic milk jugs, glassware
containing a liquid and a powdery substance, and a small tank with a “purplish-green”
valve. Recognizing the possible components of a methamphetamine operation, officers
requested permission to search the shed. Wright denied the request, after which the
officers applied for and received a warrant to search the entire premises. During a
search of the house the following morning, officers discovered a firearm in Nation’s
bedroom. Nation was convicted by a jury of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g), and sentenced by the district court to 65 months of
imprisonment and three years of supervised release.




                                           -2-
       Nation raises three claims on appeal. He argues (1) that there was no probable
cause to support the issuance of the warrant; (2) that the government presented
improper rebuttal evidence at trial; and (3) that there is insufficient evidence to support
his conviction. The United States cross-appeals, contending that the district court erred
in sentencing Nation by failing to treat his prior conviction for escape as a crime of
violence.

                                            II.

        Nation first contends that the search warrant was not based on probable cause
and therefore that the weapon discovered at his residence should not have been
admitted into evidence. “We examine the factual findings underlying the district
court’s denial of the motion to suppress for clear error and review de novo the ultimate
question of whether the Fourth Amendment has been violated.” United States v.
Clayton, 210 F.3d 841, 845 (8th Cir. 2000) (citation omitted). Probable cause exists
if there is a “fair probability that contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). We will uphold a
judicial determination of probable cause if we believe that there was a substantial basis
for concluding that a search would uncover evidence of wrongdoing. United States v.
Horn, 187 F.3d 781, 785 (8th Cir. 1999) (citation omitted).

      Nation argues that the warrant lacked probable cause because the items in the
shed were “non-contraband” and “innocuous.” He also notes that officers did not
report seeing ephedrine or drain cleaner, other components often used in
methamphetamine production, nor did they observe the presence of a heat source
necessary to produce the drug. Further, although Nation acknowledges that the odor
of an illegal substance can provide police with probable cause, United States v. Gipp,
147 F.3d 680, 685 (8th Cir. 1998), he argues that the odor of ether, a non-controlled
substance, cannot constitute probable cause.


                                           -3-
       In determining whether probable cause exists, we do not evaluate each piece of
information independently; rather, we consider all of the facts for their cumulative
meaning. United States v. Morales, 923 F.2d 621, 623-24 (8th Cir. 1991). Taken
together, we believe the combination of items in the shed created a fair probability that
police would discover further evidence of illegal drug activity on the premises. It is
beyond dispute that the individual items located in the shed could be used for legal
purposes. As the Supreme Court has noted, however, “innocent behavior frequently
will provide the basis for a showing of probable cause.” Gates, 462 U.S. at 243 n.13.
“In making a determination of probable cause the relevant inquiry is not whether
particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to
particular types of noncriminal acts.” Id. As the sheriff indicated in his application for
the warrant, ether, coffee filters, plastic and glass containers, and pressurized
containers with purplish-green residue on the valve are common to methamphetamine
operations. In our view, the storage of these items together under the specific
circumstances of this case raised sufficient suspicion of criminal activity to support a
finding of probable cause.

       Furthermore, it is irrelevant that police did not report the presence of all of the
items required for methamphetamine production on the premises. Probable cause
requires only that police have a substantial basis for believing that a search would
uncover evidence of criminal activity, Horn, 187 F.3d at 785; it does not require that
police observe every component or ingredient involved in an illegal drug operation
before applying for a warrant. Cf. Morales, 923 F.2d at 624 (police are not required
to “have enough evidence to justify a conviction” before making a warrantless arrest).
Additionally, because the numerous items observed in the shed during the consensual
search supported a finding of probable cause, we need not reach the issue of whether
the odor of a legal substance alone, in this case ether, could have supported issuance
of the warrant.




                                           -4-
       Second, Nation contends that the district court abused its discretion by allowing
the government to present improper rebuttal testimony. Specifically, Nation challenges
the testimony of one of the arresting officers that there was only one bed in the house.
Nation contends this testimony should have been presented during the government’s
case-in-chief and that it should have been excluded under Federal Rule of Evidence
403. We disagree.

        “The function of rebuttal is to explain, repel, counteract, or disprove evidence
of the adverse party.” United States v. Azure, 845 F.2d 1503, 1508 (8th Cir. 1988)
(citation omitted). Here, Nation presented testimony by James Wright that could have
led the jury to believe that Nation did not occupy the bedroom where the gun was
located and therefore was not aware of the existence of the weapon in the house.
During cross-examination, Wright testified that there were beds in two rooms of the
house at the time of the search. Additionally, the district court permitted Nation to
introduce a videotape made eight months after his arrest that showed two beds in the
house. Because the officer’s testimony that there was only one bed in the house was
offered to counter this evidence, we conclude that the district court did not abuse its
discretion in allowing the testimony as rebuttal. United States v. Beasley, 102 F.3d
1440, 1445 (8th Cir. 1996) (standard of review). We also conclude that the district
court did not abuse its discretion by refusing to exclude the evidence under Rule 403.

      Third, Nation argues that there is insufficient evidence to support his conviction.
Although the government must prove every element of the offense, the evidence “need
not exclude every reasonable hypothesis of innocence, but simply be sufficient to
convince the jury beyond a reasonable doubt that the defendant is guilty.” United
States v. Lee, 232 F.3d 653, 655 (8th Cir. 2000). We view the evidence in the light
most favorable to the verdict, accepting as established all reasonable inferences the
evidence tends to prove. Id.




                                          -5-
       The only issue before the jury in this case was whether Nation knowingly
possessed the firearm. Viewed in the light most favorable to the verdict, the evidence
introduced at trial proved that police located the firearm in an open armoire in Nation’s
bedroom. The gun itself was in an open case, and numerous letters addressed to Nation
were located in the room. This evidence, in addition to testimony suggesting that
Nation initially asked Wright to obtain the gun, is sufficient to establish either actual
or constructive possession of the firearm. To the extent that Nation urges us to reassess
the credibility of witnesses at trial, we emphasize that credibility determinations are the
province of the jury. United States v. Ireland, 62 F.3d 227, 230 (8th Cir. 1995).

                                           III.

       On cross-appeal, the United States argues that the district court incorrectly
calculated Nation’s base offense level. The court sentenced Nation pursuant to
U.S.S.G. § 2K1.3, which provides for a base level of 20 “if the defendant had one prior
felony conviction of either a crime of violence or a controlled substance offense,”
U.S.S.G. § 2K1.3(a)(2), and a base offense level of 24 “if the defendant has had at least
two prior felony convictions of either a crime of violence or a controlled substance
offense,” U.S.S.G. § 2K1.3(a)(1). In 1995, Nation was convicted in Arkansas state
court of second degree escape. After examining the circumstances of the escape and
determining that the only individual at risk was Nation himself, the district court
concluded that it was not a crime of violence. Accordingly, the court assigned Nation
a base offense level of 20, resulting in a sentencing range of 63 to 78 months’
imprisonment.1 The United States contends that under the guidelines escape is,
categorically, a crime of violence and that Nation should have been assigned a base
offense level of 24.


      1
       Nation has a criminal history category of V and a prior conviction for burglary
of a commercial building, a crime of violence pursuant to United States v. Hascall, 76
F.3d 902 (8th Cir. 1996).

                                           -6-
       We review the district court’s interpretation and construction of the sentencing
guidelines de novo. United States v. Snoddy, 139 F.3d 1224, 1227 (8th Cir. 1998).
The guidelines define a “crime of violence” as:

      [A]ny 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 the 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).

      It is undisputed that Nation’s conviction for escape was punishable by a term of
imprisonment in excess of one year and that it does not qualify as a crime of violence
under U.S.S.G. § 4B1.2(a)(1). The only question here is whether the offense “involves
conduct that presents a serious potential risk of physical injury to another.” In
addressing this issue, the district court determined that the guidelines authorized an
examination of the particular facts of Nation’s escape from the county jail. Although
the court acknowledged that “generally, escape has a potential of harm to others,” it
reasoned that the term “conduct” in U.S.S.G. § 4B1.2(a)(2) referred to the underlying
facts of a particular offense. Accordingly, the court examined the specific
circumstances of Nation’s conviction, determined that the escape posed no serious risk
of physical injury to another, and concluded that the offense was not a crime of
violence.

      We respectfully disagree with the district court’s analysis and conclusion.
Although we acknowledge that the term “conduct” in § 4B1.2(a)(2) could suggest an



                                          -7-
examination of the underlying facts of a particular offense, we note that the first
application note to § 4B1.2 explains that:

      [o]ther offenses are included as “crimes of violence” if . . . the conduct set
      forth (i.e., expressly charged) in the count of which the defendant was
      convicted . . . by its nature, presented a serious potential risk of physical
      injury to another.

U.S.S.G. § 4B1.2, comment. (n.1). This interpretation is controlling. Stinson v. United
States, 508 U.S. 36, 42 (1993). Thus, the guidelines direct us to examine the nature of
the expressly charged conduct, rather than the particulars of the defendant’s behavior,
to determine whether a particular offense is a crime of violence. In a similar context,
we have described this method as the “categorical approach” to defining violent
criminal conduct, United States v. Stuckey, 220 F.3d 976, 985 (8th Cir. 2000) (citation
omitted), and have acknowledged that such an approach covers a broad range of
activity. Id.

      We must therefore determine whether the nature of the expressly charged
conduct in this case presented a serious potential risk of physical injury to another. The
record indicates that the criminal information charged that Nation “did unlawfully,
being a convicted felon, on or about the 8th day of April, 1995, escape from the Cross
County Jail, a correctional facility.” The issue before us, then, is whether the crime of
escape, by its nature, involves a serious potential risk of physical injury to another. We
conclude that it does, and accordingly we hold that escape is categorically a crime of
violence as defined in U.S.S.G. § 4B1.2.

      We believe that every escape, even a so-called “walkaway” escape, involves a
potential risk of injury to others. As the Tenth Circuit observed, an escapee is likely
to possess a “variety of super-charged emotions, and in evading those trying to
recapture him, may feel threatened by police officers, ordinary citizens, or even fellow


                                           -8-
escapees.” United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994). Every
escape, therefore, “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.” Id. Even the most peaceful escape cannot eliminate the potential
for violent conflict when the authorities attempt to recapture the escapee. Given this
reality, we have no difficulty in concluding that escape qualifies as a crime of violence
pursuant to U.S.S.G. § 4B1.2. We note that the Fourth, Fifth, Sixth, and Tenth Circuits
have reached similar conclusions. United States v. Hairston, 71 F.3d 115, 118 (4th Cir.
1995) (escape is a crime of violence for the purposes of the Armed Career Criminal
Act); United States v. Ruiz, 180 F.3d 675, 676 (5th Cir. 1999) (walkaway escape is a
crime of violence pursuant to U.S.S.G. § 4B1.2); United States v. Harris, 165 F.3d
1062, 1068 (6th Cir. 1999) (guidelines prescribe a categorical approach in defining a
crime of violence for purposes of career offender status); Gosling, 39 F.3d at 1142-
1143 (escape is a crime of violence for purposes of U.S.S.G. § 4B1.2).

      We affirm the conviction, vacate the sentence, and remand for further
proceedings not inconsistent with this opinion.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -9-
