                                            Filed:   June 14, 2000

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                            No. 99-4610
                            (CR-99-206)



United States of America,

                                                Plaintiff - Appellee,

          versus


Calvin Pierre Antonio Martin,

                                               Defendant - Appellant.



                             O R D E R



     The court amends its opinion filed June 9, 2000, as follows:

     On the cover sheet, section 4 -- “Argued:” is inserted before

the May 5, 2000, date.

                                         For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 99-4610

CALVIN PIERRE ANTONIO MARTIN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Margaret B. Seymour, District Judge.
(CR-99-206)

Argued: May 5, 2000

Decided: June 9, 2000

Before WILKINS, MICHAEL, and TRAXLER,
Circuit Judges.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Wilkins wrote the
opinion, in which Judge Michael and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: David Wilson Plowden, Assistant Federal Public
Defender, Greenville, South Carolina, for Appellant. Isaac Louis
Johnson, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee. ON BRIEF: J. Rene Josey,
United States Attorney, Harold Watson Gowdy, III, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.

_________________________________________________________________
OPINION

WILKINS, Circuit Judge:

Calvin Pierre Antonio Martin appeals an order of the district court
sentencing him as a career offender, see U.S. Sentencing Guidelines
Manual § 4B1.1 (1998), following his conviction for bank larceny,
see 18 U.S.C.A. § 2113(b) (West Supp. 2000).1 Martin contends that
he is not eligible to be sentenced as a career offender because bank
larceny is not a crime of violence. We agree and accordingly vacate
and remand for resentencing.

I.

On February 17, 1999, Martin entered a federally insured bank in
Spartanburg, South Carolina, approached a teller, handed her a plastic
bag, and said, "I need you to fill this up please." J.A. 54 (internal quo-
tation marks omitted). Martin was unarmed. The teller described Mar-
tin as serious and nervous. While she filled the bag, he leaned over
the counter with his face about a foot from hers. After the teller had
put some bills into the bag, Martin said, "Okay. That's enough." Id.
at 55 (internal quotation marks omitted). The teller then returned the
bag, and Martin left the bank without saying more. Martin was subse-
quently charged with a single count of bank robbery. See 18 U.S.C.A.
§ 2113(a) (West Supp. 2000). The indictment charged that Martin "by
force, violence, and intimidation did take [money] from the person
and presence of employees of the Palmetto Bank." J.A. 10.

The teller testified at trial that she was afraid, although she never
saw a weapon. Martin admitted at trial that he had stolen money from
_________________________________________________________________

1 The statute provides in relevant part as follows:

          Whoever takes and carries away, with intent to steal or purloin,
          any property or money or any other thing of value exceeding
          $1,000 belonging to, or in the care, custody, control, manage-
          ment, or possession of any bank, credit union, or any savings and
          loan association, shall be fined under this title or imprisoned not
          more than ten years, or both . . . .

18 U.S.C.A. § 2113(b).

                     2
the bank but denied threatening the teller. The district court instructed
the jury on the elements of bank robbery and of bank larceny as a
lesser included offense. The jury convicted Martin of bank larceny.

At sentencing, the district court determined that Martin was a
career offender. First, the court found that Martin was over the age
of 18 at the time of the instant offense and that he had two or more
prior felony convictions for crimes of violence or drug offenses. Over
Martin's objection, the court also found that the instant offense of
bank larceny was a crime of violence. The court sentenced Martin to
84 months imprisonment followed by a three-year term of supervised
release. Martin appeals his sentence.

II.

The guidelines provide that a defendant should be sentenced as a
career offender

          if (1) the defendant was at least eighteen years old at the
          time the defendant committed the instant offense of convic-
          tion, (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 convic-
          tions of either a crime of violence or a controlled substance
          offense.

U.S.S.G. § 4B1.1. Here, there is no dispute that Martin was at least
18 years old when he committed the instant offense and that he has
the requisite predicate convictions. Martin argues, however, that he
should not have been sentenced as a career offender because the
offense of conviction, bank larceny, is not a crime of violence within
the meaning of the career offender provision. We review this legal
question de novo. See United States v. Dickerson, 77 F.3d 774, 775
(4th Cir. 1996).

"Crime of violence" is defined by the guidelines as

          any offense under federal or state law, punishable by impris-
          onment for a term exceeding one year, that--

                     3
          (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(a). The commentary enumerates certain offenses
that are crimes of violence and explains that

          [o]ther offenses are . . . "crimes of violence" if (A) that
          offense has as an element the use, attempted use, or threat-
          ened use of physical force against the person of another, or
          (B) 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.

Id. § 4B1.2, comment. (n.1).

Bank larceny is not one of the offenses enumerated in U.S.S.G.
§ 4B1.2(a)(2) or the accompanying commentary. Moreover, this
offense does not contain as an element the use, attempted use, or
threatened use of physical force.2 See 18 U.S.C.A. § 2113(b). There-
fore, bank larceny is a crime of violence only if it"otherwise involves
_________________________________________________________________

2 We have held that when the elements of an offense indicate that it
could be committed in two ways, one of which requires a finding that
physical force was used and the other of which does not, "it is appropri-
ate for a court to look beyond the fact of conviction and the elements of
the offense" to the charging papers and jury instructions in deciding
whether an offense constitutes a crime of violence. United States v. Cole-
man, 158 F.3d 199, 202 (4th Cir. 1998) (en banc); see United States v.
Kirksey, 138 F.3d 120, 124 (4th Cir. 1998); United States v. Cook, 26
F.3d 507, 509 (4th Cir. 1994). Here, the elements of 18 U.S.C.A.
§ 2113(b) contain no ambiguity that would permit us to look beyond
those elements in determining whether bank larceny is a crime of vio-
lence.

                    4
conduct that presents a serious potential risk of physical injury to
another." U.S.S.G. § 4B1.2(a)(2).

The commentary emphasizes that "in determining whether an
offense is a crime of violence . . . the offense of conviction (i.e., the
conduct of which the defendant was convicted) is the focus of
inquiry." Id. § 4B1.2, comment. (n.2) (emphasis added). The guide-
lines therefore prohibit "a wideranging inquiry into the specific cir-
cumstances surrounding a conviction" in determining whether an
offense is a crime of violence. United States v. Johnson, 953 F.2d
110, 113 (4th Cir. 1992). Consistent with the limitations imposed by
the guidelines on any factual inquiry, we have stated that

          in assessing whether a particular offense satisfies the "other-
          wise clause" of [U.S.S.G. § 4B1.2(a)(2)], a sentencing court
          must confine its factual inquiry to those facts charged in the
          indictment. If the sentencing court cannot glean the circum-
          stances surrounding the defendant's commission of the
          crime from the indictment, 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.

Dickerson, 77 F.3d at 776 (internal quotation marks & citations omit-
ted) (emphasis added); see also Johnson, 953 F.2d at 113 (stating that
the plain meaning of application note 2 to U.S.S.G.§ 4B1.2 makes
clear that "a sentencing court must confine its factual inquiry to those
facts charged in the indictment"). Thus, a two-part inquiry is required
to determine whether an offense is a crime of violence under the "oth-
erwise clause." First, we consider the indictment pertaining to the
offense of which the defendant was convicted. If that effort is unavail-
ing, we consider whether the offense of conviction is a crime of vio-
lence in the abstract.

A.

Martin was indicted for bank robbery, see 18 U.S.C.A. § 2113(a).3
_________________________________________________________________

3 The statute pertaining to bank robbery provides, in relevant part:

                     5
In particular, the indictment charged that Martin "by force, violence,
and intimidation did take [money] from the person and presence of
employees of the Palmetto Bank." J.A. 10. The jury convicted Martin
of the lesser included offense of bank larceny. Thus, it is not the case
that the conduct set forth in the indictment is "the conduct set forth
(i.e., expressly charged) in the count of which the defendant was con-
victed." U.S.S.G. § 4B1.2, comment. (n.1). In fact, there is no indict-
ment charging Martin with bank larceny, the offense of which he was
convicted.

The Government essentially argues for the creation of a de facto
"indictment" for the offense of conviction by omitting from the indict-
ment for bank robbery the reference to "force, violence, and intimida-
tion," and retaining the reference to "tak[ing] from the person and
presence of [bank] employees." J.A. 10. The Government asserts that
the conviction by the jury on the lesser included offense indicates
that, although the jury did not find that Martin used force, violence,
or intimidation, it did find that Martin took the money from a person.
Reasoning by analogy to cases from other circuits holding that lar-
ceny from a person is a crime of violence, the Government argues that
bank larceny from the person or presence of a teller is also a crime
of violence. See United States v. Payne, 163 F.3d 371, 374-75 (6th
Cir. 1998); United States v. De Jesus, 984 F.2d 21, 24-25 (1st Cir.
1993). But see United States v. Lee, 22 F.3d 736, 740-41 (7th Cir.
1994) (holding that theft from a person is not a crime of violence).

Assuming without deciding that when a jury convicts a defendant
of a lesser included offense it is permissible to consider those facts
_________________________________________________________________

          Whoever, by force and violence, or by intimidation, takes . . .
          from the person or presence of another . . . any property or
          money or any other thing of value belonging to, or in the care,
          custody, control, management, or possession of, any bank, credit
          union, or any savings and loan association . . .

          ...

           [s]hall be fined under this title or imprisoned not more than
          twenty years, or both.

18 U.S.C.A. § 2113(a).

                    6
alleged in the original indictment that correspond to the elements of
the lesser included offense, the Government's argument fails. Bank
larceny lacks as a statutory element not only the use of force, vio-
lence, or intimidation, but also the taking from the person or presence
of another. Thus, conforming the indictment to Martin's bank larceny
conviction requires deletion of both the reference to force, violence,
and intimidation and the reference to taking from the person and pres-
ence of bank employees. See United States v. Arnold, 58 F.3d 1117,
1124 (6th Cir. 1995) (holding in a case where the defendant was not
convicted of the offense with which he was originally charged that in
determining whether the offense of conviction is a crime of violence,
"the . . . court should limit its examination to only those charges in
the indictment that are essential to the offense" of which the defen-
dant was convicted); United States v. Wilson, 951 F.2d 586, 588 (4th
Cir. 1991) (stating that under the categorical approach, "the relevant
determination is whether the defendant was convicted of a given
offense, not whether he engaged in certain conduct").

In sum, no matter how clear it may be from the record as a whole
that Martin committed larceny from a person, the limited nature of the
permissible factual inquiry precludes our consideration of that fact in
determining whether Martin's offense of bank larceny was a crime of
violence. In particular, we may not consider all the allegations in the
indictment charging Martin with bank robbery, but rather only those
that directly correspond to the elements of the offense of conviction.
We therefore need not address whether a larceny from a person con-
stitutes a crime of violence. Instead, we move to the second inquiry
under Dickerson.

B.

Because we cannot conclude from the indictment that Martin's
offense was a crime of violence, it is necessary under Dickerson to
consider the broader question of whether bank larceny, in the abstract,
is a crime of violence. We conclude that it is not.

We have held that escape from custody is a violent felony,4 relying
_________________________________________________________________

4 The term "violent felony" is defined in 18 U.S.C.A. § 924(e) (West
Supp. 1999), which provides for an enhancement of the sentence of cer-

                    7
on "the chance that [even] in the case of an escape by stealth, the
escapee will be intentionally or unintentionally interrupted by
another" creating the possibility that "the escapee [will] choose to dis-
pel the interference by means of physical force." United States v.
Hairston, 71 F.3d 115, 118 (4th Cir. 1995); see Dickerson, 77 F.3d
at 777 (relying on Hairston in holding that attempted escape from
custody is a crime of violence); United States v. Aragon, 983 F.2d
1306, 1311-15 (4th Cir. 1993) (holding that attempting to rescue a
prisoner or assisting his escape is a crime of violence for purposes of
18 U.S.C.A. § 1952(a)(2) (West Supp. 2000)). On similar grounds,
we have held that the attempted breaking and entering of a dwelling
constitutes a violent felony because of the substantial risk of confron-
tation. See United States v. Custis, 988 F.2d 1355, 1363-64 (4th Cir.
1993) ("In most cases, attempted breaking and entering will be
charged when a defendant has been interrupted in the course of ille-
gally entering a home. Interrupting an intruder while breaking into a
home involves a risk of confrontation nearly as great as finding him
inside the house."); see also United States v. Mobley, 40 F.3d 688,
696 (4th Cir. 1994) (holding that pickpocketing is a violent felony
because of the likelihood of confrontation).

On the other hand, we have held that possession of a firearm by a
convicted felon is not a crime of violence because "[t]he danger inher-
ent in the mere possession of a firearm is, in many cases, too highly
attenuated to qualify the offense as a per se `crime of violence.'"
Johnson, 953 F.2d at 115; see United States v. Rutherford, 54 F.3d
370, 375 (7th Cir. 1995) ("A court must . . . tread carefully when
_________________________________________________________________

tain defendants convicted of violating 18 U.S.C.A.§ 922(g) (West Supp.
1999). Since the language in U.S.S.G. § 4B1.2(a) is almost identical to
that in 18 U.S.C.A. § 924(e)(2)(B), our reasoning regarding the meaning
of "violent felony" is relevant to determining the meaning of "crime of
violence." See United States v. Hill, 131 F.3d 1056, 1062 n.6 (D.C. Cir.
1997); Johnson, 953 F.2d at 113-14. Similarly, the term "crime of vio-
lence" is used in 18 U.S.C.A. § 1952(a)(2) (West Supp. 2000) to describe
an element of a violation of that statute. "Crime of violence" is defined
in 18 U.S.C.A. § 16 (West Supp. 1999) for use throughout Title 18. The
definition in 18 U.S.C.A. § 16 uses operative language that is similar to
that used in U.S.S.G. § 4B1.2(a). Thus, our determinations regarding
what constitutes a crime of violence for purposes of 18 U.S.C.A. § 16 are
also relevant here. See Wilson, 951 F.2d at 588.

                     8
interpreting the `otherwise' clause. Conjecture or speculation about
possible harm is not sufficient to create a crime of violence under
§ 4B1.2; instead, there must be evidence that the crime, by its nature,
presents a substantial risk or an affirmative indication in the indict-
ment or information that the defendant engaged in conduct presenting
a serious risk of physical injury." (internal quotation marks omitted)).

We conclude that bank larceny is not a crime of violence. Our pre-
cedents suggest that most, if not all, instances of an offense should
involve a serious potential risk of injury in order for that offense to
constitute a crime of violence in the abstract. See Aragon, 983 F.2d
at 1315 (emphasizing, in determining that instigating or assisting the
rescue of a prisoner is a crime of violence, that the offense "fre-
quently" presents a risk of injury and that this "risk is invariably pres-
ent due to the nature of the crime[ ], whether or not physical force is
in fact used" (internal quotation marks omitted)). Although some
bank larcenies may present a risk of physical confrontation, bank lar-
ceny may be committed by numerous means that present no such risk.
For example, an individual may commit bank larceny by obtaining
money through false pretenses, see Bell v. United States, 462 U.S.
356, 360-62 (1983); by forging a certified check, see United States v.
Thorpe, 191 F.3d 339, 341 (2d Cir. 1999); by exploiting one's posi-
tion as a bank employee to steal from a bank drawer, vault, or night
deposit safe, see United States v. Brelsford, 982 F.2d 269, 270 (8th
Cir. 1992); United States v. Maciaga, 965 F.2d 404, 405 (7th Cir.
1992); or by manufacturing keys to someone else's safe deposit box
and stealing the contents, see United States v. Munzingo, 999 F.2d
361, 362-63 (8th Cir. 1993). The vast array of means of committing
bank larceny that pose no potential risk of physical injury to another,
let alone a serious one, precludes a determination that the offense in
the abstract is a crime of violence.

III.

We conclude that bank larceny is not a crime of violence and that
the district court therefore erred in sentencing Martin as a career
offender. Accordingly, we vacate Martin's sentence and remand for
resentencing.

VACATED AND REMANDED

                     9
