PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                  No. 95-5435

CHRISTOPHER DICKERSON,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-94-511)

Argued: January 29, 1996

Decided: March 12, 1996

Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge,
and BLAKE, United States District Judge for the District of
Maryland, sitting by designation.

_________________________________________________________________

Vacated and remanded for resentencing by published opinion. Judge
Hamilton wrote the opinion, in which Chief Judge Wilkinson and
Judge Blake joined.

_________________________________________________________________

COUNSEL

ARGUED: William Graham Otis, Senior Litigation Counsel,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellant. Joseph N. Bowman, Alexandria, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Alex-
andria, Virginia, for Appellee.
OPINION

HAMILTON, Circuit Judge:

The United States (the government) appeals the sentence of Chris-
topher Dickerson (Dickerson) imposed by the district court following
Dickerson's plea of guilty to felony attempted escape from custody,
see 18 U.S.C.A. § 751(a) (West Supp. 1995). The government con-
tends that the district court erroneously concluded that Dickerson did
not qualify as a career offender under United States Sentencing Com-
mission, Guidelines Manual (USSG), § 4B1.1 (Nov. 1994). Because
we conclude that the crime of felony attempted escape from custody,
in violation of 18 U.S.C.A. § 751(a), in the abstract, "involves con-
duct that presents a serious potential risk of physical injury to
another," USSG § 4B1.2(1)(ii), we vacate Dickerson's sentence and
remand for resentencing.

I.

The relevant facts of this appeal are straightforward. On July 1,
1993, while serving a felony murder sentence of twenty years to life
at the Lorton Reformatory, a federal maximum security prison, in
Lorton, Virginia, Dickerson attempted to escape from custody
through an opening in the perimeter fence that he and two fellow
inmates, aided by a pair of wire cutters, had just created. Hearing gun-
fire, Dickerson retreated toward an interior building where he was
apprehended and subsequently charged by a federal grand jury in an
indictment that read, in pertinent part, as follows:

          On or about July 1, 1993, at the Occoquan Facility of the
          Lorton Reformatory Correctional Complex in Fairfax
          County, Virginia, in the Eastern District of Virginia, defen-
          dant CHRISTOPHER DICKERSON, 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 vir-
          tue of Judgment and Commitment Order of the District of

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          Columbia Superior Court, did unlawfully, knowingly, and
          willfully attempt to escape from such custody.

          (Violation of Title 18, United States Code, Section 751(a)).

(J.A. 16). In February 1995, Dickerson pled guilty to this charge.

At Dickerson's sentencing hearing, the government contended that
Dickerson should be sentenced as a "career offender" under the
Career Offender provision of the Sentencing Guidelines, see USSG
§ 4B1.1. Dickerson opposed the government's contention on the
ground that the crime of felony attempted escape from custody, in
violation of 18 U.S.C.A. § 751(a), did not constitute a crime of vio-
lence under the Career Offender provision. Agreeing with Dickerson,
the district court refused to sentence Dickerson as a career offender.

The district court then calculated Dickerson's total offense level
under the Sentencing Guidelines at eleven. In reaching this calcula-
tion, the district court used the base offense level provided for the
crime of attempting to escape while in custody by virtue of a convic-
tion, see USSG § 2P1.1(a)(1), and then subtracted two levels for
Dickerson's acceptance of responsibility, see USSG § 3E1.1. Dicker-
son had a criminal history category of six, 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 Dickerson to twenty-seven months' imprison-
ment. The government noted a timely appeal.

II.

On appeal, the government challenges the district court's refusal to
sentence Dickerson as a career offender under the Career Offender
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 18 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.

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In this case, that Dickerson met the first and third elements of the
Career Offender provision is not in dispute--Dickerson was at least
18 years old at the time that he attempted to escape from the Lorton
Reformatory and has at least two prior felony convictions for drug
trafficking or violent offenses. The debate in this case surrounds the
second element; specifically, whether the crime of felony attempted
escape from custody, in violation of 18 U.S.C.A.§ 751(a), constitutes
a "crime of violence." Because resolution of this question turns pri-
marily on the legal application of a Sentencing Guideline term, our
review is plenary. See United States v. Daugherty, 874 F.2d 213, 217
(4th Cir. 1989).

The Career Offender provision of the Sentencing Guidelines,
USSG § 4B1.1, does not itself define the term"crime of violence."
Instead, its accompanying commentary provides that courts should
use the definition of the term "crime of violence" as found in USSG
§ 4B1.2. See USSG § 4B1.1, comment. (n.1). USSG § 4B1.2 defines
the term "crime of violence" as:

          (1) . . . any offense under federal or state law punishable
          by imprisonment for a term exceeding one year that--

          (i) has as an element the use, attempted use, or
          threatened use of physical force against the
          person of another, or

          (ii) 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.

The commentary accompanying USSG § 4B1.2 sheds light on the
proper application of USSG § 4B1.2(1). For example, Application
Note 1 provides that the term "crime of violence" includes a defen-
dant's attempt at committing such offenses. See USSG § 4B1.2, com-
ment. (n.1). Furthermore, Application Note 2 lists ten offenses that
are by definition crimes of violence. See USSG § 4B1.2, comment.
(n.2). These offenses are murder, manslaughter, kidnapping, aggra-
vated assault, forcible sex offenses, robbery, arson, extortion, extor-
tionate extension of credit, and burglary of a dwelling. Id. The

                    4
commentary also indicates that other nonlisted offenses constitute
crimes of violence where "[t]he 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." Id. Accordingly, in assessing whether a particular offense
satisfies the "otherwise clause" of USSG § 4B1.2(1)(ii), "a sentencing
court must confine its factual inquiry to those facts charged in the
indictment." United States v. Johnson, 953 F.2d 110, 113 (4th Cir.
1991). See also United States v. Neal, 27 F.3d 90, 93 (4th Cir. 1994)
(per curiam). If the sentencing court cannot glean the circumstances
surrounding the defendant's commission of the crime from the indict-
ment, the question for the sentencing court becomes whether that
crime, "in the abstract," involves conduct that presents a serious
potential risk of physical injury to another. Johnson, 953 F.3d at 114-
15. With the mechanics of USSG § 4B1.2 in mind, we now turn to
consider whether the crime of felony attempted escape from custody,
in violation of 18 U.S.C.A. § 751(a), constitutes a crime of violence
under the Career Offender provision of the Sentencing Guidelines, see
USSG § 4B1.1.

The crime of felony attempted escape from custody, in violation of
18 U.S.C.A. § 751(a), carries a five year maximum term of imprison-
ment. Thus, the crime of felony attempted escape from custody is a
crime punishable by imprisonment for a term exceeding one year. In
addition, USSG § 4B1.2(1)(i) is inapplicable to our analysis because
a conviction for felony attempted escape from custody, in violation
of 18 U.S.C.A. § 751(a), does not have, as an element of the offense,
the "use, attempted use, or threatened use of physical force against the
person of another." See United States v. Vanover, 888 F.2d 1117,
1121 (6th Cir.) (stating that the elements of felony attempted escape
from custody under 18 U.S.C.A. § 751(a) are:"(1) attempted . . .
escape, (2) from the custody of the Attorney General, his appointed
agent, or from a place where the defendant is confined at the direction
of the Attorney General, (3) where the custody is by virtue of (a)
arrest on a felony charge or (b) conviction of any offense"), cert.
denied, 495 U.S. 934 (1989). Furthermore, felony attempted escape
from custody does not constitute one of the specifically named crimes
of violence in USSG § 4B1.2(1)(ii) or the commentary accompanying
USSG § 4B1.2.

                    5
Under these circumstances, we are left to determine whether "[t]he
conduct set forth (i.e., expressly charged) in the count of which [Dick-
erson] was convicted . . . by its nature, presented a serious potential
risk of physical injury to another." USSG § 4B1.2, comment. (n.2).
Because the indictment contains very few specific facts concerning
the circumstances surrounding Dickerson's attempted escape from
custody, the ultimate question that we must decide is whether the
crime of felony attempted escape from custody, in violation of 18
U.S.C.A. § 751(a), "in the abstract," involves conduct that presents a
serious potential risk of physical injury to another. See Johnson, 953
F.3d at 114-15.

In United States v. Hairston, 71 F.3d 115 (4th Cir. 1995), we
recently answered the nearly identical question in the affirmative. In
that case, looking only to the fact of conviction and the statutory defi-
nition of the crime, we held that the crime of felony escape from cus-
tody in North Carolina, see N.C. Gen. Stat.§ 148-45(b)(1), involves
conduct that presents a serious potential risk of physical injury to
another, thus qualifying as a "violent felony" under the Armed Career
Criminal Act, see 18 U.S.C.A. § 924(e) (West Supp. 1995). In reach-
ing this holding, we first concluded that no one could credibly dispute
the contention that an overt escape, especially an overt escape from
a maximum security prison, inherently presents a serious potential
risk of physical injury to another. Hairston, 71 F.3d at 118. We then
concluded that even an escape by stealth presented a serious potential
risk of physical injury to another. Id.

          Critical to our conclusion [was] the chance that in the case
          of an escape by stealth, the escapee will be intentionally or
          unintentionally interrupted by another, for example a prison
          guard, police officer or ordinary citizen. This encounter
          inherently presents the serious potential risk of physical
          injury to another, because the escapee, intent on his goal of
          escaping, faces the decision of whether to dispel the interfer-
          ence or yield to it. To avoid jeopardizing the success of the
          escape and further punishment upon capture, the escapee
          may choose to dispel the interference by means of physical
          force.

Id.

                     6
The reasoning of Hairston applies with equal force to the question
at hand, and thus, compels the conclusion that, in the abstract, the
crime of felony attempted escape from custody, in violation of 18
U.S.C.A. § 751(a), involves conduct that presents a serious potential
risk of physical injury to another. Accordingly, it qualifies as a crime
of violence under the Career Offender provision of the Sentencing
Guidelines, see USSG § 4B1.1. See also United States v. Gosling, 39
F.3d 1140, 1142 (10th Cir. 1994) (holding that the crime of felony
escape from custody in North Dakota involves conduct that presents
a serious potential risk of physical injury to another, and thus it con-
stitutes a crime of violence under the Career Offender provision of the
Sentencing Guidelines).

We note that in applying the reasoning in Hairston to this case, the
fact that Dickerson was convicted of attempting to escape from cus-
tody, while Hairston was convicted of affirmatively escaping, is of no
consequence. First, the commentary to USSG § 4B1.2 specifically
recognizes that an attempted crime may constitute a"crime of vio-
lence." See USSG § 4B1.2, comment. (n. 1). Furthermore, common
sense dictates that an attempted escape presents at least as much risk
of physical injury to another as a successful escape.

III.

In sum, we hold that the crime of felony attempted escape from
custody, in violation of 18 U.S.C.A. § 751(a), in the abstract, involves
conduct that presents a serious potential risk of physical injury to
another, and thus, constitutes a crime of violence for purposes of the
Career Offender provision of the Sentencing Guidelines, see USSG
§ 4B1.1. In view of our holding, we remand the case to the district
court for resentencing. On remand, Dickerson should be sentenced as
a career offender under USSG § 4B1.1.

VACATED AND REMANDED FOR RESENTENCING

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