     Case: 10-50579 Document: 00511473935 Page: 1 Date Filed: 05/11/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 11, 2011

                                       No. 10-50579                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

MICHAEL WAYNE HELMICK,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:09-CR-333-1


Before REAVLEY, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Appellant Michael Wayne Helmick pleaded guilty to being a convicted
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). At Helmick’s
sentencing, the District Court enhanced Helmick’s sentence pursuant to the
Armed Career Criminal Act, which imposes a 15-year mandatory minimum
prison sentence on a person convicted under § 922(g)(1) if the person has “three
previous convictions . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another[.]” § 924(e)(1). The District

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-50579 Document: 00511473935 Page: 2 Date Filed: 05/11/2011



                                  No. 10-50579

Court classified Helmick’s 1998 Utah conviction for the third degree felony of
Escape from Custody as a violent felony.         Helmick appeals the sentence
enhancement based on that conviction. We affirm.
      We review de novo the District Court’s determination that the Utah escape
statute under which Helmick was convicted qualifies as a crime of violence for
the purposes of the Act. United States v. Harrimon, 568 F.3d 531, 533 (5th Cir.
2009). In order for a crime to be considered a violent felony under the Act, it
must first be a “crime punishable by imprisonment for a term exceeding one
year,” and not be classified by the state as a misdemeanor. §§ 921(a)(20);
924(e)(2)(B). Utah classifies its escape statute as a felony, and even the third
degree version of the felony may be punishable by up to five years. U TAH C ODE
76-3-203(3) (1998).
      Next, the crime for which Helmick was convicted must either: (i) “ha[ve]
as an element the use, attempted use, or threatened use of physical force against
the person of another,” or (ii) be “burglary, arson, or extortion, involve[] use of
explosives, or otherwise involve[] conduct that presents a serious potential risk
of physical injury to another.” § 924(e)(2)(B). Helmick’s conviction for escape
falls into the second option. The 1998 version of the Utah statute reads in
relevant part: “A prisoner is guilty of escape if he leaves official custody without
authorization.” U TAH C ODE § 76-8-309(1) (1998). An escape from police custody
without the use of a dangerous weapon or causing serious bodily injury to
another is classified as a third degree felony. § 76-8-309(2)-(5) (1998). The Utah
escape statute defines “official custody” as “arrest, whether with or without
warrant, or confinement in a state prison, jail, institution for secure confinement
of juvenile offenders, or any confinement pursuant to an order of the court or
sentenced and committed and the sentence has not been terminated or voided
or the prisoner is not on parole.” § 76-8-309(7)(b) (1998).



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                                   No. 10-50579

      Crimes falling under subsection (ii) of the Act are “crimes that are roughly
similar, in kind as well as in degree of risk posed, to the examples themselves.”
Begay v. United States, 553 U.S. 137, 143, 128 S. Ct. 1581, 1585 (2008). “The
listed crimes all typically involve purposeful, ‘violent,’ and ‘aggressive’ conduct.”
Id. at 144–45, 128 S. Ct. at 1586. In determining whether the Utah escape
statute under which Helmick was charged is a violent felony, we look to whether
the offense of escape from custody—not from a place of confinement and not
involving use of a deadly weapon or harm to another—is generally purposeful,
violent and aggressive, rather than at the specific facts of Helmick’s case. Id. at
141, 128 S. Ct. at 1584. The purposeful, aggressive, and violent nature inherent
in the act of fleeing the custody of a police officer covered by the Utah statute
qualifies as a crime of violence under § 924. See United States v. Hughes, 602
F.3d 669, 677 (5th Cir. 2010) (“[E]scape is typically committed in a purposeful
manner, and when these escapes cause injuries, those injuries typically result
from intentional action, not negligence or even recklessness.”); Harrimon, 568
F.3d at 536 (“[W]e think that, in the typical case, an offender fleeing from an
attempted stop or arrest will not hesitate to endanger others to make good his
or her escape.”).
      AFFIRMED.




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