UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 94-5926

THOMAS JOHN MAYBECK,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-89-163-C, CR-89-164-C)

Argued: December 7, 1995

Decided: January 31, 1996

Before ERVIN, Chief Judge, and MICHAEL and MOTZ,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John David Boutwell, BUSH, THURMAN & WILSON,
P.A., Charlotte, North Carolina, for Appellant. Robert James Con-
rad, Jr., Assistant United States Attorney, Charlotte, North Carolina,
for Appellee. ON BRIEF: Mark T. Calloway, United States Attor-
ney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

On January 16, 1990, Thomas John Maybeck pleaded guilty to two
counts of bank robbery under 18 U.S.C. § 2113(a) and one firearms
count under 18 U.S.C. § 922(g)(1). On February 1, 1990, he was sen-
tenced as a career offender to 198 months of imprisonment. The dis-
trict court used Maybeck's prior convictions for attempted armed
robbery and attempted third degree burglary to establish his career
offender status.1 Maybeck did not take a direct appeal from his sen-
tence. More than a year later, however, he filed§ 2255 petition, alleg-
ing that he had been improperly sentenced as a career offender.
Maybeck's petition was rejected by the district court. On the appeal
of that decision we concluded that Maybeck's burglary conviction
was not for a crime of violence. We therefore vacated the sentence
and remanded for resentencing. See United States v. Maybeck
(Maybeck I), 23 F.3d 888 (4th Cir. 1994).

Before Maybeck was resentenced, the district court ordered a pre-
sentence report.2 The report disclosed that in 1983 Maybeck was con-
victed in state court for felonious escape, in violation of N.C. Gen.
Stat. § 148-45(b)(1), after he escaped while serving a term in the
North Carolina state prison in Statesville. According to the indict-
ment, Maybeck "escaped while working under armed supervision
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1 U.S.S.G. § 4B1.1 (1988) provides in pertinent part:

          A defendant is a career offender if (1) the defendant was at least
          eighteen years old at the time of the instant offense, (2) the
          instant offense 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.
2 When Maybeck was first sentenced, there was no presentence report
because it had been waived.

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from a prison road work crew." On resentencing the district court
found that Maybeck's 1983 felonious escape conviction was for a
crime of violence.3 Thus, according to the district court, even without
the burglary conviction Maybeck was still a career offender, and the
court reimposed the 198-month sentence. Maybeck challenges the
new sentence on the ground that his escape was not a crime of vio-
lence. We disagree and affirm his sentence.

I.

Maybeck was resentenced as a career offender under U.S.S.G.
§ 4B1.1 (1988), the version of the Guidelines in effect when he com-
mitted the crimes for which he was sentenced.4 Without the career
offender enhancement, Maybeck would have been in a sentence range
of 84-105 months, well below the 198 months he received. U.S.S.G.
§ 5A (1988).

If enhancement was proper, Maybeck's sentencing range was 168-
210 months, see U.S.S.G. § 5A (1988), and his 198-month sentence
was legal.5

On this appeal Maybeck maintains that the government failed to
establish that his 1983 felonious escape was a crime of violence.
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3 Although we knew when we decided Maybeck I that Maybeck had
previously been convicted of escape, 23 F.3d at 890 n.3, we neither con-
sidered nor decided whether his earlier escape could be classified as a
crime of violence within the meaning of U.S.S.G.§ 4B1.1 (1988),
because we were unaware of the nature of that escape.
4 Maybeck robbed the Mutual Savings and Loan Association on Ran-
dolph Road in Charlotte, North Carolina, on July 20, 1989, and on Sep-
tember 29, 1989. The 1989 Guidelines did not go into effect until
November 1, 1989.
5 The career offender guideline, section 4B1.1(C) (1988), gave May-
beck a base offense level of 32 because the maximum term for bank rob-
bery is 20 years. See 18 U.S.C. § 2113(a). Maybeck was allowed a two-
level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1(a)
(1988). Section 4B1.1 puts a career offender in criminal history Category
VI. Offense level 30 at Category VI prescribes a sentence of 168-210
months. U.S.S.G. § 5A (1988).

                    3
Thus, he argues that his sentence is illegal because the final element
(two violent crime convictions) of the career offender guideline,
U.S.S.G. § 4B1.1 (1988), has not been satisfied.6

II.

Maybeck relies on Commentary Note 1 to U.S.S.G.§ 4B1.2
(1988), which defines what is a "crime of violence" within the mean-
ing of U.S.S.G. § 4B1.1 (1988). According to this Commentary a
crime of violence is

          an offense that has as an element the use, attempted use, or
          threatened use of physical force against the person or prop-
          erty of another, or any other offense that is a felony and that
          by its nature involves a substantial risk that physical force
          against the person or property of another may be used in
          committing the offense. The Commission interprets this as
          follows: murder, manslaughter, kidnapping, aggravated
          assault, extortionate extension of credit, forcible sex
          offenses, arson, or robbery are covered by this provision.
          Other offenses are covered only if the conduct for which the
          defendant was specifically convicted meets the above defi-
          nition. For example, conviction for an escape accomplished
          by force or threat of injury would be covered; conviction for
          an escape by stealth would not be covered. Conviction for
          burglary of a dwelling would be covered; conviction for
          burglary of other structures would not be covered.

(Emphasis supplied.)

Maybeck correctly argues that he must be sentenced in accord with
this Commentary provision. Stinson v. United States, 113 S. Ct. 1913,
1915 (1993). See also United States v. Thompson , 891 F.2d 507, 511
(4th Cir. 1989) ("we presumably owe the Commission the usual def-
erence to agency interpretations of statutes or regulations for whose
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6 Maybeck concedes that he was at least eighteen when he robbed the
savings and loan, that those robberies were crimes of violence, and that
his earlier conviction for attempted armed robbery was for a crime of
violence.

                    4
application the agency has some responsibility") (Phillips, J., concur-
ring), cert. denied, 495 U.S. 922 (1990).7 We must give Maybeck the
benefit of the 1988 Commentary's "by stealth" exception to the gen-
eral rule that escape is a crime of violence.8 If Maybeck's escape was
"by stealth," he must be resentenced.

At the conclusion of the second sentencing hearing the district
court read the language of the 1983 felony indictment and concluded
that, based on United States v. Aragon, 983 F.2d 1306 (4th Cir. 1993),
"the escape in 1983 . . . would constitute a crime of violence and,
therefore, put [Maybeck] back into the career offender status."

The district court was correct in concluding that Maybeck's 1983
escape conviction was for a crime of violence, but we cannot rely on
Aragon to affirm that conclusion. Aragon , a non-guidelines case
decided in 1993, held that "an attempt to rescue or assist a prisoner
to escape, 18 U.S.C. § 752 (West 1976 & Supp. 1992), is categori-
cally a `crime of violence.'" 983 F.2d at 1311. Aragon thus refused
to recognize a "by stealth" exception to the general rule that escape
is a crime of violence. Id. at 1313. However, because the 1988 Com-
mentary to U.S.S.G. § 4B1.2 does explicitly recognize a "by stealth"
exception, we must still satisfy ourselves that Maybeck's escape was
not "by stealth."

"[A] legal rather than a factual approach[is taken in] determining
which offenses qualify as crimes of violence." United States v.
Wilson, 951 F.2d 586, 588 (4th Cir. 1991). In applying Wilson here,
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7 The government suggests that Maybeck may not rely on the
force/stealth distinction contained within the 1988 Commentary because
the 1989 Commentary eliminates the distinction between escape by force
and escape by stealth. See United States v. Aragon, 983 F.2d 1306, 1312
(4th Cir. 1993). We reject this suggestion. To refuse to allow a defendant
to seek the benefit of a specific Commentary provision in effect at the
time he committed an offense would violate the Ex Post Facto Clause if
application of that provision would result in his receiving a lesser sen-
tence. U.S. Const. art. I, § 9, cl. 3. See also Miller v. Florida, 482 U.S.
423 (1987); United States v. Morrow, 925 F.2d 779, 782 (4th Cir. 1991).
8 See United States v. Hairston , 71 F.3d 115 (4th Cir. 1995), for a dis-
cussion of the general rule.

                    5
a court would look first to the statutory definition of felonious escape
in North Carolina to see if it lists as an element"the use, attempted
use, or threatened use of physical force against the person or property
of another." U.S.S.G. § 4B1.2, comment. (n.1) (1988). The definition
of felonious escape in the North Carolina statute contains no such ele-
ment or terms. See N.C. Gen. Stat. § 148-45(b)(1). "If the statutory
definition of the offense does not use these terms, then the [] court
may look to the conduct described in the indictment against the defen-
dant (but no further) in determining if the offense presented a serious
potential risk of physical injury to another." United States v. Neal, 27
F.3d 90, 93 (4th Cir. 1994) (per curiam) (citing United States v.
Johnson, 953 F.2d 110, 113 (4th Cir. 1991)).

We turn, then, to the conduct charged in Maybeck's 1983 indict-
ment. It said, "The defendant escaped while working under armed
supervision from a prison road work crew." This description of the
facts of Maybeck's escape is precise, going beyond the simple allega-
tion that he escaped from lawful custody. An escape from a prison
road work crew has great potential for violence, especially when the
crew is under direct armed supervision. The escapee, already outside
prison walls, begins his escape in a sensitive setting. As the govern-
ment stressed during argument, a prison road work crew is out among
the "open populace." Guards could be expected to react instantly to
contain and end any escape from a road work crew, thereby enhanc-
ing the danger of injury to civilian bystanders, other prisoners and
other guards. Conversely, a true escape by stealth (as where late one
night a prisoner tunnels underneath a prison wall) poses fewer of the
mentioned dangers. Maybeck's indictment does not say that he hid or
in any way tried to conceal what he did. Rather, the indictment sug-
gests that Maybeck escaped in broad daylight -- the antithesis of an
escape by stealth.

For these reasons we hold that Maybeck's escape from the prison
road work crew was "by force or threat of injury" and not "by
stealth." Because the escape "involve[d] a substantial risk that physi-
cal force against the person or property of another[could] be used,"
U.S.S.G. § 4B1.2, comment. (n.1) (1988), the 1983 conviction was

                    6
for a crime of violence. Maybeck was properly resentenced as a
career offender and his sentence is affirmed.

AFFIRMED

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