                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS                 March 5, 2009
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                            No. 06-2228
                                                (D. Ct. No. 04-CR-1456 JH)
 JAVIER AVALOS,                                         (D. N. Mex.)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and KELLY, Circuit Judges.


      Defendant Javier Avalos was convicted of distributing five or more grams

of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and was

sentenced to 262 months’ imprisonment. We affirmed both his conviction and his

sentence on direct appeal. United States v. Avalos, 506 F.3d 972, 980 (10th Cir.

2007) (“Avalos I”). On Mr. Avalos’s petition for a writ of certiorari, the Supreme

Court vacated the judgment of this court and remanded for further consideration


      *
        This order and judgment is not binding precedent except under the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. We note that this order and judgment results from the Supreme
Court’s remand following our opinion in United States v. Avalos, 506 F.3d 972
(10th Cir. 2007), and all parts of that opinion other than Part D.2 remain valid and
retain their precedential value.
in light of Chambers v. United States, 555 U.S. —, 129 S. Ct. 687 (2009). Upon

reconsideration, we REMAND for resentencing. All of our prior opinion

unrelated to Chambers remains valid and retains it precedential value.

                                 I. DISCUSSION

      We recited all of the facts relevant to Mr. Avalos’s appeal in Avalos I. See

Avalos I, 506 F.3d at 974–75. For purposes of this remand, it is only necessary to

explain that Mr. Avalos was sentenced as a career offender under United States

Sentencing Guidelines (“U.S.S.G.”) § 4B1.1(a) based in part on the district

court’s determination that his prior conviction for escape from jail under N.M.

Stat. § 30-22-8 was a “crime of violence.” A crime of violence is defined as

      any offense under federal or state law, punishable by imprisonment
      for a term exceeding one year, 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 the 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 definitions of “crime of violence” under§ 4B1.2(a) and

“violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)

(“ACCA”), and are virtually identical. United States v. Dennis, 551 F.3d 986,

988 (10th Cir. 2008). Thus, we often consider our “precedent under one of these

provisions as guidance under the other provision in determining whether a

conviction qualifies as a crime of violence.” United States v. West, 550 F.3d 952,

960 n.5 (10th Cir. 2008).

                                        -2-
      In determining whether a conviction qualifies as a violent felony under the

ACCA, the Supreme Court has instructed courts to engage in “‘a formal

categorical approach, looking only to the statutory definitions of the prior

offenses, and not to the particular facts underlying those convictions.’” Dennis,

551 F.3d at 988 (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)).

Under this approach, we “consider the offense generically, that is to say, we

examine it in terms of how the law defines the offense and not in terms of how an

individual offender might have committed it on a particular occasion.” Begay v.

United States, 128 S. Ct. 1581, 1584 (2008). See also Dennis, 551 F.3d at 988

(“This pure categorical approach does not allow a court to evaluate the underlying

facts of the defendant’s conduct.”).

      On the other hand, we employ the so-called “modified categorical

approach” when the statute of conviction encompasses both violent and

nonviolent crimes.

      [W]hen the underlying statute of conviction is ambiguous, or broad
      enough to encompass both violent and nonviolent crimes, a court can
      look beyond the statute to certain records of the prior proceeding,
      such as the charging documents, the judgment, any plea thereto, and
      findings by the sentencing court. This is known as the modified
      categorical approach, and it allows a court to determine under which
      part of an ambiguous or varied statute a defendant was charged so as
      to perform the statutory analysis. The modified categorical approach
      does not allow a subjective inquiry into the underlying facts of the
      conviction to determine whether the enhancement provision is
      satisfied.

Id. at 988–89 (alterations, citations, and quotations omitted).

                                         -3-
      Before Chambers, we considered an escape conviction categorically a

crime of violence under U.S.S.G. § 4B1.2(a)(2). In affirming Mr. Avalos’s

sentence on direct appeal, we explained:

      we have repeatedly held that escape is categorically a crime of violence
      because it “always constitutes conduct that presents a serious potential
      risk of physical injury to another.” See United States v. Patterson, 472
      F.3d 767, 783 (10th Cir. 2006); United States v. Turner, 285 F.3d 909,
      915–16 (10th Cir. 2002) (“Even though initial circumstances of an
      escape may be non-violent, there is no way to predict what an escapee
      will do when encountered by the authorities. Every escape is a powder
      keg, which may or may not explode into violence.” (quotation
      omitted)); see also U.S.S.G. § 4B1.2(a) cmt. n. 1 (defining “crime of
      violence” to include an offense that involves conduct that “present[s]
      a serious potential risk of physical injury to another”).

Avalos I, 506 F.3d at 980.

      In Chambers, however, the Supreme Court considered a conviction based

on an Illinois statute that, in the Court’s view, contained at least two separate

crimes—escape from custody and failure to report to a penal institution.

Chambers, 129 S. Ct. at 691. The defendant in Chambers had been convicted of

failure to report. Id. at 690. The Supreme Court concluded that failure to report

is not a violent felony for purposes of the ACCA because “it does not involve

conduct that presents a serious potential risk of physical injury to another.” Id. at

691 (quotations omitted).

      In this case, Mr. Avalos was convicted under N.M. Stat. § 30-22-8, 1 which

      1
     As we go on to explain, the record does not contain the charging
documents or documents of conviction. Mr. Avalos, however, did not object to
                                                                   (continued...)

                                         -4-
provides:

      Escape from jail. Escape from jail consists of any person who shall
      have been lawfully committed to any jail, escaping or attempting to
      escape from such jail. Whoever commits escape from jail is guilty of
      a fourth degree felony.

See N.M. Stat. § 30-22-8. New Mexico courts interpret this statute as

encompassing failure-to-report scenarios. See, e.g., State v. Hill, 877 P.2d 1110

(N.M. Ct. App. 1994); State v. Coleman, 680 P.2d 633 (N.M. Ct. App. 1984).

Thus, after Chambers, the statute contains at least two separate crimes, one of

which is not a crime of violence. See United States v. Pearson, 553 F.3d 1183,

1185 (8th Cir. 2009) (reaching the same conclusion after Chambers for a

conviction under 18 U.S.C. § 751(a)).

      Under the modified categorical approach, we may consider certain records

from the prior proceeding to determine whether Mr. Avalos’s conviction was for

failure to report, for escape from physical custody, or for some other crime

proscribed by the statute. The record on appeal, however, does not contain any

such records. Thus, we must remand for resentencing with instructions to the


      1
        (...continued)
the presentence report’s finding that he was convicted of escape from jail.
Moreover, Mr. Avalos’s opening brief suggests that he was convicted under N.M.
Stat. § 30-22-8, and the brief includes the full text of the statute. The government
also refers to § 30-22-8 in its brief. Thus, we operate under the assumption that
Mr. Avalos was convicted of violating that statute.




                                        -5-
district court to consider the charging documents, the judgment, any plea thereto,

and any comparable judicial records from Mr. Avalos’s prior prosecution under

N.M. Stat. § 30-22-8 to determine whether his conviction qualifies as a crime of

violence. See id. (on plain-error review, remanding for resentencing after

Chambers because the district court did not engage in the modified categorical

approach and the appellate record did not allow for such an inquiry).

                                II. CONCLUSION

      We REMAND to the United States District Court for the District of New

Mexico with instructions to resentence Mr. Avalos in accordance with this order

and judgment and Chambers v. United States, 129 S. Ct. 687 (2009). All of our

prior opinion in Avalos I, other than Part D.2, remains valid and retains its

precedential value. The mandate shall re-issue forthwith.



                                       ENTERED FOR THE COURT,



                                       Deanell Reece Tacha
                                       Circuit Judge




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