                            In the

United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-2949

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

T ODD A. T EMPLETON,
                                             Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
               for the Western District of Wisconsin.
          No. 07-CR-18-C—Barbara B. Crabb, Chief Judge.
                        ____________

     A RGUED A PRIL 16, 2008—D ECIDED S EPTEMBER 9, 2008
                        ____________



 Before EASTERBROOK,        Chief   Judge,     and   WOOD     and
WILLIAMS, Circuit Judges.
  E ASTERBROOK, Chief Judge. Although the principal issue
in this appeal concerns the scope of the career-offender
sentencing guideline after Begay v. United States, 128 S. Ct.
1581 (2008), Todd Templeton begins with a challenge to
his conviction. When pleading guilty to two bank robber-
ies, 18 U.S.C. §2113, Templeton reserved the right to
challenge the seizure of evidence from his car. See Fed. R.
2                                               No. 07-2949

Crim. P. 11(a)(2). The district judge denied his motion to
suppress the evidence, and properly. Templeton threat-
ened to shoot a teller during the first robbery. Police
knew that Templeton was their man because both his
mother and his ex-wife told them that he had robbed
the bank. When the police saw a pellet-gun wrapper in
his car, they had probable cause to believe that the car
contained a weapon, if not loot. See Illinois v. Gates, 462
U.S. 213 (1983). Templeton thinks that the police should
have disregarded his statement to the teller. Maybe he
was lying about having a gun, but the police were entitled
to find out. The threat, the wrapper in plain view, and
Templeton’s ownership of the car were enough to
supply probable cause to believe that it contained evi-
dence. (In light of Carroll v. United States, 267 U.S. 132
(1927), and its successors, Templeton does not argue
that a warrant was required.)
  Templeton was sentenced to 235 months’ imprisonment
as a career offender. Congress has required the Sentencing
Commission to ensure that such a criminal is sentenced
at or near the statutory maximum. 28 U.S.C. §994(h). A
person is a career offender when “the instant offense of
conviction is a felony that is either a crime of violence or
a controlled substance offense; and . . . the defendant
has at least two prior felony convictions of either a crime
of violence or a controlled substance offense.” U.S.S.G.
§4B1.1.
    (a) The term “crime of violence” means any
    offense under federal or state law, punishable by
    imprisonment for a term exceeding one year,
No. 07-2949                                                  3

    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 use of explosives, or
    otherwise involves conduct that presents a serious
    potential risk of physical injury to another.
U.S.S.G. §4B1.2. Templeton acknowledges that bank
robbery, his “instant offense of conviction”, is a crime of
violence. He argues, however, that he does not have “two
prior felony convictions of either a crime of violence
or a controlled substance offense.”
  Templeton had been convicted of four felonies before
the robberies: escape from prison (twice), failing to report
to jail, and drunk driving. Under this circuit’s precedents,
each of these offenses is a “violent felony” for the purpose
of 18 U.S.C. §924(e). See United States v. Franklin, 302
F.3d 722 (7th Cir. 2002) (escape); United States v. Golden, 466
F.3d 612 (7th Cir. 2007) (“escape” by failing to return
from furlough, or failure to report for imprisonment);
United States v. Sperberg, 432 F.3d 706 (7th Cir. 2005) (felony
drunk driving). Section 924—a part of the Armed Career
Criminal Act—defines “violent felony” in the same way
as §4B1.2 defines “crime of violence”, and we interpret
§4B1.2 in the same way as §924(e). See United States v.
Upton, 512 F.3d 394, 404 (7th Cir. 2008); United States v.
Howze, 343 F.3d 919, 924 (7th Cir. 2003). At the time
the district court sentenced Templeton, therefore, he
had four convictions for crimes of violence, twice the
requirement for career-offender status. But Begay re-
quires us to rethink the subject.
4                                                No. 07-2949

  Begay dealt with felony drunk driving, the subject of
Sperberg. (Many states, including Wisconsin, treat
driving while intoxicated as a felony when the driver is
a recidivist or a serious injury ensues.) Drunk driving
does not have the use of physical force as an element of
the crime. Thus the Court asked whether drunk driving
came within §924(e)(2)(B)(ii), which covers conduct “that
presents a serious potential risk of physical injury to
another.” The Court acknowledged that drunk driving
does present such a risk—but it added that not all risky
activity fits within subsection (ii). Applying the ejusdem
generis canon, the Court held that a crime comes within
subsection (ii) only if it is “similar” to the offenses listed
in the subsection: burglary of a dwelling, arson, extortion,
and the use of explosives. The Court thought that these
crimes have in common “purposeful, ‘violent,’ and ‘aggres-
sive’ conduct.” Begay, 128 S. Ct. at 1586. Drunk driving
may be intentional, but it is not intentionally violent
or aggressive and so does not fit, the Court held.
  Perhaps Begay has broken the link between §924(e) and
§4B1.2. The Court noted that §924 is part of the Armed
Career Criminal Act, which implies a focus “upon the
special danger when a particular type of offender—a
violent criminal . . .”—possesses a gun. Begay, 128 S. Ct. at
1587. Section 4B1.1, the “career offender” guideline, does
not single out armed criminals. Nevertheless, the Court
interpreted the words of §924(e), which the Sentencing
Commission repeated verbatim in §4B1.2. It would be
inappropriate to treat identical texts differently just
because of a different caption. This means—as the prosecu-
tor conceded in a post-argument memorandum—that
No. 07-2949                                                5

Templeton’s conviction for drunk driving is not a “crime
of violence” under §4B1.2.
  Whether Begay affects the classification of Templeton’s
other convictions is a harder question. Our pre-Begay
approach to escapes, and similar offenses, asked whether
a particular crime posed a significant risk of physical
injury. Even before Begay, we had expressed some doubt
about the affirmative answer that our initial decisions had
given on the basis of armchair empiricism. Escapes may
well lead to injuries—either when the prisoner makes the
bid for freedom or when he is recaptured (escape is a
continuing offense, so the risks of recapture are properly
included in the calculus). But when a statute inquires into
risk, data trump judicial guesses.
    [I]t is an embarrassment to the law when judges base
    decisions of consequence on conjectures, in this case
    a conjecture as to the possible danger of physical
    injury posed by criminals who fail to show up to
    begin serving their sentences or fail to return from
    furloughs or to halfway houses.
United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007).
Chambers announced that our classification of escapes was
provisional and would be reexamined if data could be
assembled. Estimates may be essential and must suffice
when data are unavailable or inconclusive (as crime
statistics often are), and a statutory classification such
as the one in §924(e)(2)(B)(i) always prevails. But when
the legislature requires judges to assess “risk”, as
§924(e)(2)(B)(ii) does, provisional estimates must yield
to better sources of knowledge.
6                                               No. 07-2949

  Templeton hired an expert to collect and analyze statis-
tics about escapes in Wisconsin. The expert discovered that
about 11% of those convicted of felony failure to report
under Wis. Stat. §946.425, and 15% of those convicted of
escape under Wis. Stat. §946.42(3), also are charged under
one of four statutes punishing some form of resisting
arrest: Wis. Stat. §946.41 (resisting or obstructing an
officer), Wis. Stat. §946.415 (failure to comply with an
officer’s attempt to take a person into custody), Wis. Stat.
§346.04 (vehicular eluding), and Wis. Stat. §940.20(2)
(battery of a law officer). According to Templeton, this
shows that escapes do not pose a “serious potential risk
of physical injury” and so are not crimes of violence.
  The problem with this argument is the assumption that
a 11% to 15% chance of violent resistance to recapture
does not create a “serious” risk. Drawing on the approach
to burglary’s risks in Taylor v. United States, 495 U.S. 575
(1990), we held in Howze that a 2% incidence of injury
from a crime renders the risk “serious.” That’s another
example of ejusdem generis. Section 924(e)(2)(B)(ii) gives
residential burglary as an example of a crime that creates
the level of risk that Congress deemed sufficient. Burglary
rarely leads to physical injury; a careful burglar tries to
ensure that no one is at home before breaking in. But
sometimes the burglar is mistaken, and on other
occasions the owner comes home while the burglary is
in progress. Then there may be a confrontation and an
injury. The Supreme Court has held that even attempted
burglary creates a serious potential risk of violence. James
v. United States, 127 S. Ct. 1586 (2007). Crimes that create
No. 07-2949                                                7

roughly the same magnitude of risk as burglary satisfy
§924(e)(2)(B)(ii).
  True, the numbers Templeton reports are not conclusive.
Not every episode of resisting arrest results in injury. The
rate of injury from escapes and failures to report equals the
fraction of escapes resulting in resistance on apprehension
(or a confrontation on departure) times the fraction of those
occurrences that end in physical injury. Unless every
incident of resisting arrest leads to injury, the percentage
of escapes that result in injury could be less than what
Templeton reports. Not every escapee is caught or
charged, further reducing the first fraction. At the same
time, some risk-creating acts on departure or recapture
may go uncharged; other forms of violence may accom-
pany an escape. Still other escapes may be overcharged:
That an indictment alleges forceful resistance to arrest
does not establish that violence occurred. Thus the
actual rate of injury from escapes could be higher or
lower than the 11% to 15% range.
  A little independent research using data compiled by the
Department of Justice shows lower rates of injury. For
1993, of 802 escapes from prison, 5 ended in death and 33
in injury. Three of the deaths, and 13 of the injuries, were
to the prisoner, so the risk to guards and bystanders was
about 2.7%. (The statute speaks of risk to “another”, so
harm to the offenders must be disregarded.) In 1984 there
were 893 escapes, leading to the deaths of 8 guards or
bystanders, and 6 injuries, for 1.6% risk. See United States
Department of Justice National Criminal Justice Referral
Service, Survey: Escapes from Correctional Facilities, 10
8                                                No. 07-2949

Corrections Compendium 11–15 (1986); Prison Escapes and
Violence Remain Down, 19 Corrections Compendium 6–21
(1994). A recent comprehensive study gives higher rates.
Richard F. Culp, Frequency and Characteristics of Prison
Escapes in the United States: An Analysis of National Data, 85
Prison J. 270 (2005), concludes that 8% of escapees
commit violence against guards in the process of getting
away, and that at least 6% of escapees commit violent
crimes such as murder or robbery against civilians while
on the lam. By contrast, walkaways produced no deaths
or injuries.
  These numbers show that escapes (other than walk-
aways) generate a sufficient risk of injury to count
as crimes of violence. See also United States v. Billups,
No. 07-2037 (7th Cir. July 29, 2008) (false imprisonment
creates a serious risk of injury and must be treated as a
crime of violence on that account). Chambers observed
that judges should rely on data rather than conjecture.
Even if data do not perfectly describe the actual injury
rate, they let us estimate the rate with more confidence
than before.
  Readers of this opinion are entitled to wonder at this
point why we have bothered to evaluate the risk from
escape and failure to report for custody. After all, Begay
holds that risk is insufficient—but although risk of injury
is insufficient, it is necessary if the offense in question is
sufficiently “like” the list (burglary, arson, extortion, and
the use of explosives) to pass the ejusdem generis filter.
Shortly after deciding Begay, the Court granted certiorari
in Chambers, 128 S. Ct. 2046 (2008), and set that case for
No. 07-2949                                                9

plenary review rather than remanding for reconsidera-
tion in light of Begay. The data gathered in this case
permit us to fill the empirical void that Chambers noted
and may facilitate the Supreme Court’s decision. But
Begay also shows that this court’s approach in Chambers
and earlier cases was incomplete, because we did not
ask whether escapes and failures to return are
sufficiently similar to the listed offenses.
  It isn’t hard to see how some escapes could meet the
standard laid down in Begay. If a prisoner fashions a home-
made knife (a shank) and uses it to injure or threaten a
guard in order to get away, the escape will meet the
Court’s standard. Escapes that entail violence (or the
threat of violence) directed against a guard, or an officer
attempting to recapture the escapee, are more dangerous
than burglary or extortion and involve “purposeful,
‘violent,’ and ‘aggressive’ conduct” (Begay, 128 S. Ct. at
1586).
  The problem is that many escapes don’t depend on
aggression. A furloughed prisoner’s failure to return is a
form of escape. So is a prisoner’s walkaway from a
halfway house or a camp that lacks fences. We know
from Taylor and Shepard v. United States, 544 U.S. 13 (2005),
that to classify a crime under §924(e) we must look at
how an offense is defined by statute, not at what the
offender did in fact. See also United States v. Shannon, 110
F.3d 382, 384–85 (7th Cir. 1997) (en banc). Here is the
relevant text of Wis. Stat. §946.42, the escape offense of
which Templeton was twice convicted:
    A person in custody who intentionally escapes
    from custody under any of the following circum-
10                                                No. 07-2949

     stances is guilty of a Class H felony: (a) Pursuant to
     a legal arrest for, lawfully charged with or con-
     victed of or sentenced for a crime.
     ...
     “Custody” includes . . . the constructive custody of
     persons placed on supervised release . . . or . . .
     temporarily outside the institution whether for the
     purpose of work, school, medical care, a leave
     granted under s. 303.068, a temporary leave or
     furlough granted to a juvenile, or otherwise.
     ...
     “Escape” means to leave in any manner without
     lawful permission or authority.
The definition includes prisoners let out for a specific
purpose who do not return as instructed, cf. Wisconsin v.
Magnuson, 233 Wis. 2d. 40, 606 N.W.2d 536, 540–41 (2000),
or who leave unsupervised confinement, such as house
arrest, Wis. Stat. §302.425(6). Wisconsin allows prisoners to
leave certain forms of confinement temporarily “for
employment, education or other rehabilitative activities.”
Wis. Stat. §301.046(5). If a prisoner intentionally fails
to return from this furlough, he is guilty of escape
without so much as moving a muscle. See Wis. Stat.
§302.425(6).
   A walkaway is not a crime of violence under Begay. Nor
is a simple failure to report to custody, which violates Wis.
Stat. §946.425. These offenses do not involve “aggressive”
conduct against either a person (as in extortion) or prop-
erty (arson). All the Wisconsin statute requires is that the
escapee “leave”. The crime does not require any violent or
No. 07-2949                                                11

aggressive act. Although the statute does require intent,
the required mental state is only intent to be free of cus-
tody, not intent to injure or threaten anyone. It is easy
to violate Wis. Stat. §946.42 without intending or accom-
plishing the destruction of property or acting in an ag-
gressive, violence-provoking manner that could
jeopardize guards or bystanders.
  It will not do to argue, as the prosecutor does, that escape
is enough like burglary to make it a crime of violence.
Doubtless for both crimes there is a chance the criminal
will confront another person with violent results: the
building’s occupant for burglaries and the guards or
police for escapes. But Begay requires the crime to be
aggressive or violent. All the prosecutor identifies is a
common result: in both cases injuries may follow confron-
tations. Begay requires similarities other than risk of in-
jury. That’s why Begay held that drunk driving is not a
“violent felony” despite the substantial risk of injury that
ensues.
  Nor does the fact that both crimes contain an intent
element render them similarly violent. Burglary requires
both the intent to enter a building and the intent to commit
a crime once inside. This second intent is what makes
burglary “purposeful, ‘violent,’ and ‘aggressive’ ” in all
cases. It involves intentionally encroaching on another’s
property or person, or intentionally injuring another’s
property or person. By contrast, many escapes under
Wisconsin law are passive.
  So it is possible to violate Wis. Stat. §946.42 in a manner
that constitutes a crime of violence under §4B1.1, and
12                                               No. 07-2949

possible to do so in a way that is not. Taylor holds that
when a state statute can be violated in a way that is, or is
not, the basis of federal recidivist treatment, a court may
look at the indictment or other charging papers to deter-
mine in what way the defendant committed the offense.
For other illustrations of this principle, see Shannon, Howze,
Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003), and United
States v. Spells, 2008 U.S. App. L EXIS 16861 at *10–28 (7th
Cir. Aug. 8, 2008). The record does not contain the
charging papers for Templeton’s prior convictions. (They
were not essential under this court’s pre-Begay decisions;
neither counsel nor the district judge can be faulted
for failing to include them.) A remand therefore is neces-
sary to determine whether Templeton’s escapes are
crimes of violence. Because Templeton has two prior
convictions for escape, he can still qualify as a career
offender under §4B1.1.
  The district judge should find out—if the charging
papers and other documents that may be considered
under Taylor and Shepard reveal this fact—whether the
crimes of which Templeton was convicted are jailbreaks
or otherwise involve the sort of active and aggressive
conduct that Begay requires. If not, or if the issue was not
addressed by the charging papers and equivalent docu-
ments, then the convictions must not be classified as
crimes of violence.
  We must address one last issue before closing. Both the
prosecutor and Templeton have asked us to hold this
appeal for the Court’s decision in Chambers. But the data
in this record allow an evaluation of risk in a way that the
No. 07-2949                                             13

record in Chambers did not. It seems best for this circuit
to state its current understanding of not only the risk of
these crimes but also the way that Begay affects our prece-
dents. If we have misunderstood Begay, the Supreme
Court will tell us. In the meantime the substantial
volume of prosecutions that present issues under §924(e)
or §4B1.1 can be resolved.
  Templeton’s conviction is affirmed. His sentence is
vacated, and the case is remanded for further considera-
tion in light of this opinion.




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