                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 10, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 08-1090
 v.                                            (D.C. No. 07-CR-00409-REB-1)
                                                          (D. Colo.)
 CHARLES EDWARD HARRIS, JR,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HARTZ, Circuit Judges.



      Defendant Charles Edward Harris, Jr., pled guilty to possession with intent

to distribute five grams or more of cocaine base, a Schedule II controlled

substance. I R. Doc. 18 at 2; I R. Doc. 19; see 21 U.S.C. § 841(a)(1) and

(b)(1)(B)(iii). The presentence report (“PSR”) treated Mr. Harris as a career

offender under U.S.S.G. § 4B1.1(a) because he had twice been convicted of

felony attempted escape. IV R. at ¶¶ 71, 73, 83, 164. Based on a total offense

level of 31 and a criminal history category of VI, the PSR calculated the guideline


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
range as 188-235 months. IV R. at ¶ 134. The district court adopted the PSR, but

departed downward to a criminal history category of V “because the defendant’s

status as a Career Offender significantly over-represent[ed] the seriousness of the

defendant’s prior criminal record.” I R. Doc. 23 at 7-8. Accordingly, the district

court sentenced him to 168 months’ imprisonment and five years’ supervised

release, which was at the bottom of the guideline range calculated with a criminal

history category of V. I R. Doc. 23 at 2-3, 8. Mr. Harris now appeals, arguing

that his sentence should be vacated and remanded for resentencing in light of the

Supreme Court’s recent decision in Chambers v. United States, 129 S. Ct. 687

(2009).



                                    Discussion

      Mr. Harris contends that, in light of Chambers, the district court clearly

erred by concluding that his prior convictions for attempted escape under Colo.

Rev. Stat. § 18-8-208(1)-(3) were “crimes of violence” as that term is defined in

U.S.S.G. § 4B1.2(a). Prior to Chambers, we had considered escape to be

categorically a crime of violence under U.S.S.G. § 4B1.2(a)(2). See United States

v. Avalos, 506 F.3d 972, 980 (10th Cir. 2007), vacated, 129 S. Ct. 993 (2009). In

Chambers, however, the Supreme Court considered whether a conviction based on




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an Illinois escape statute 1 could be categorized as a crime of violence for purposes

of the Armed Career Criminal Act (“ACCA”). 2 Chambers, 129 S. Ct. at 691-93.

In Chambers, the relevant statute criminalized at least two different types of

behavior—escape and failure to report. Chambers, 129 S. Ct. at 691. The Court

concluded that failure to report, the crime for which the defendant was convicted,

id. at 690, is not a crime of violence because it does not have “as an element the

use, attempted use, or threatened use of physical force against the person of

another,’” id. at 691 (quoting 18 U.S.C. § 924(e)(2(B)(I)), and because “it does

not involve conduct that presents a serious potential risk of physical injury to

another,” id. (internal quotation marks omitted).

      Relying on Chambers, Mr. Harris contends that his prior convictions should

not qualify as crimes of violence. Mr. Harris was convicted under Colo. Rev.

Stat. § 18-8-208(1)-(3), which provides that it is a felony to “knowingly escape[]

from . . . custody or confinement.” Id. A person who is sentenced to community

corrections and who either fails to remain or fails to return is punishable under

      1
        The Illinois statute criminalized several different types of behavior: “(1)
escape from a penal institution, (2) escape from the custody of an employee of a
penal institution, (3) failing to report to a penal institution, (4) failing to report
for periodic imprisonment, (5) failing to return from furlough, (6) failing to return
from work and day release, and (7) failing to abide by the terms of home
confinement.” Chambers, 129 S. Ct. at 691.
      2
       Chambers affects our analysis of what constitutes a crime of violence
under U.S.S.G. § 4B1.2(a) because we have treated the ACCA and U.S.S.G. §
4B1.2(a) as largely co-ordinate. United States v. West, 550 F.3d 952, 960 n.5
(10th Cir. 2008).

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this statute. See Colo. Rev. Stat. § 17-27-106(1)(a). Mr. Harris apparently had

attempted to escape from custody in a community corrections intensive

supervision program, and it is his conviction for this attempt which is at issue.

Supp. Aplt. Br. Attach 1. However, we need not decide whether Chambers

dictates that an attempted walk-away escape from a community corrections

program is or is not a crime of violence because—subsequent to briefing—the

parties agreed that this case should be remanded to the district court for

resentencing using a modified categorical approach. Gov’ts Unopposed Motion

filed May 14, 2009 at 5, ¶¶ 6-8; see United States v. Avalos, No. 06-2228, 2009

WL 541336, at *3 (D.N.M. March 5, 2009) (remanding for resentencing in light

of Chambers).

      Accordingly, we REMAND this case to the district court to vacate the

sentence and to resentence Mr. Harris in accord with this order and judgment and

the Supreme Court’s decision in Chambers.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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