                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 13a0029p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                    No. 10-6163
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 BENJI ANTONIO STOUT,
                                                N
                  Appeal from the United States District Court
               for the Eastern District of Kentucky at Lexington.
             No. 5:09-cr-147-2—Karen K. Caldwell, District Judge.
                                      Argued: July 26, 2012
                            Decided and Filed: February 5, 2013
       Before: COLE and DONALD, Circuit Judges; SARGUS, District Judge*

                                       _________________

                                             COUNSEL
ARGUED: Jeffrey A. Darling, REINHARDT & ASSOCIATES, PLC, Lexington,
Kentucky, for Appellant. Valorie D. Smith, UNITED STATES ATTORNEY’S
OFFICE, Lexington, Kentucky, for Appellee. ON BRIEF: Jeffrey A. Darling,
REINHARDT & ASSOCIATES, PLC, Lexington, Kentucky, for Appellant. Valorie D.
Smith, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington,
Kentucky, for Appellee.
    SARGUS, D. J., delivered the opinion of the court, in which COLE, J., joined.
DONALD, J. (pp. 10–20), delivered a separate dissenting opinion.




         *
           The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of
Ohio, sitting by designation.


                                                   1
No. 10-6163        United States v. Stout                                          Page 2


                                 _________________

                                       OPINION
                                 _________________

       EDMUND A. SARGUS, District Judge. Benji Stout pleaded guilty to knowingly
possessing body armor after having been previously convicted of a crime of violence,
in violation of 18 U.S.C. § 931(a)(2). Stout now appeals, contending that the district
court erred when it found that his prior state-law conviction for second-degree escape
constituted a “crime of violence,” as defined by 18 U.S.C. § 16. For the following
reasons, we AFFIRM the decision of the district court.

                                            I.

       On August 4, 2009, officers from the Winchester, Kentucky Police Department
stopped Stout’s vehicle. The officers discovered four pieces of body armor in the
vehicle, which Stout admittedly possessed. The body armor had been manufactured by
American Body Armor in Jacksonville, Florida and sold in interstate commerce prior to
Stout’s possession.

       A grand jury returned an indictment charging Stout with one count of being a
felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and one count of
knowingly possessing body armor after having been previously convicted of a crime of
violence in violation of 18 U.S.C. § 931(a)(2). At his arraignment, Stout requested a
hearing to determine whether his prior state-law conviction for second-degree escape
constituted a “crime of violence.”

       The record below provides limited information with regard to Plaintiff’s prior
state-law conviction. In November 2004, Stout pleaded guilty to second-degree escape
in violation of section 520.030 of the Kentucky Revised Statutes. The underlying
complaint alleged that Stout committed the crime while incarcerated at the Detention
Center in Lincoln County, Kentucky. According to the reporting officer, Stout “scaled
the recreation area wall, cutting a hole in the fence at [the] top and escaping custody of
the [j]ail.” During the evidentiary hearing, Stout, through his attorney, admitted to
No. 10-6163        United States v. Stout                                            Page 3


scaling the wall and escaping through a hole in the fence, but denied cutting the hole in
the fence. The government proffered no evidence indicating that Stout was the
individual who cut the hole in the fence that he used for his escape. On this basis, the
district court “assume[d] that [Stout] merely used the hole to make his escape.”

       The district court held that Stout’s prior state-law conviction for escape
constituted a “crime of violence” for purposes of 18 U.S.C. § 16. The district court
stressed that Stout had escaped from a secure facility, by scaling a fence. The district
court reasoned that Stout’s actions were “purposeful and aggressive” and “created a
serious risk of the use of physical force against guards and members of the general
public.” After the district court’s ruling, Stout pleaded guilty to one count of knowingly
possessing body armor having previously been convicted of a “crime of violence.” The
government, through motion, dismissed the other remaining charge, being a convicted
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

       Stout’s plea agreement allowed him to appeal the district court’s ruling on the
“crime of violence” issue. Accordingly, he filed a timely notice of appeal of his
conviction.

                                            II.

       Stout’s appeal presents a single issue: Does his prior state-law conviction for
escape constitute a “crime of violence” within the meaning of 18 U.S.C. § 16? We
review the district court’s legal determination de novo. United States v. Martin, 378
F.3d 578, 580 (6th Cir. 2004).

       A “crime of violence” is defined as:

       (a) an offense that has as an element the use, attempted use, or threatened
       use of physical force against the person or property of another, or
       (b) 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 the course of committing the offense.
No. 10-6163         United States v. Stout                                           Page 4


18 U.S.C. § 16 (2006). Our inquiry is conditionally two-fold. First, we apply the
“categorical approach” to discern the nature of a defendant’s prior conviction. Taylor
v. United States, 495 U.S. 575, 602 (1990). To do so, we look to the statutory definition
of the crime of conviction, not the underlying facts thereof, to determine the nature of
the crime. Id.; see also Leocal v. Ashcroft, 543 U.S. 1, 7 (2004) (holding that the
language of 18 U.S.C. § 16 “requires us to look to the elements and the nature of the
offense of conviction, rather than to the particular facts relating to petitioner’s crime”).
If, however, this inquiry reveals that it is possible to violate a criminal law both in a
manner that is a crime of violence and in a manner that is not, we may look at the
indictment, guilty plea, and similar documents to see if they “necessarily” establish the
nature of the prior offense. Shepard v. United States, 544 U.S. 13, 26 (2005); see also
United States v. Mendoza-Mendoza, 239 F. App’x 216, 219 (6th Cir. 2007) (applying
Shepard within the context of 18 U.S.C. § 16).

        In evaluating the residual clause of § 16(b), we recognize that the United States
Sentencing Guidelines and the Armed Career Criminal Acts (“ACCA”) each contain
similar residual clauses relating to crimes of violence. See U.S. Sentencing Guidelines
Manual § 4B1.2 (2012) (providing that the term “crime of violence” includes a crime
that “otherwise involves conduct that presents a serious potential risk of physical injury
to another”); 18 U.S.C. § 924(e)(2)(B) (stating that “violent felony” includes a crime that
“otherwise involves conduct that presents a serious potential risk of physical injury to
another”). Although similar, the language of § 16(b) is narrower than these provisions
to the extent that it explicitly requires that a crime carry a substantial risk “of physical
force” during “the course of committing the offense.” 18 U.S.C. § 16(b); see also United
States v. Amos, 501 F.3d 524, 527–28 (6th Cir. 2007) (comparing § 16(b) to the ACCA).

                                             III.

        Pursuant to the approach outlined in Taylor and Shepard, we must first classify
the offense in question. We have recognized, “[o]ften the key analytical move in the
case happens at the first step: deciding whether the state-law definition of the offense
involves just one category or two or more categories of crimes.” United States v.
No. 10-6163           United States v. Stout                                                  Page 5


Mosley, 575 F.3d 603, 606 (6th Cir. 2009). “The ‘categorical approach requires courts
to choose the right category,’ as the Supreme Court recently clarified, and sometimes
that choice requires the federal courts to draw distinctions that the state law on its face
does not draw.” Id. (quoting Chambers v. United States, 555 U.S. 122, 126 (2009)). For
example, when the same statutory section criminalizes two types of behavior that
significantly differ, “a sentencing court must treat the two as different crimes.”
Chambers, 555 U.S. at 126. At the same time, however, we must be “careful that the
lines we draw are meaningful ones” and must not circumvent the categorical approach
that Taylor requires. United States v. Ford, 560 F.3d 420, 424 (6th Cir. 2009).

        As detailed above, Stout’s prior state-law conviction was for escape.1 Under
Kentucky law, “escape in the first degree” is a Class C felony that arises when a person
“escapes from custody or a detention facility by the use of force or threat of force against
another person.” Ky. Rev. Stat. § 520.020 (2012). This was not, however, the crime of
Stout’s conviction. Stout was guilty of escape in the second degree, which consists of
either “escape[] from a detention facility or, [while] being charged with or convicted of
a felony, . . . escape[] from custody.” Id. § 520.030(1).

        To categorize section 520.030 of the Kentucky Revised Statutes, we need not
look far. In Ford, we acknowledged that “a conviction for second-degree escape [under
this provision] covers everything from a felon who breaks out of a maximum-security
prison to one who fails to report at a halfway house.” 560 F.3d at 422. Because of the
broad range of conduct that a conviction for second-degree escape covers, we concluded
that there were both violent and non-violent means of violating the statute. Id. at 426.
Moreover, we recognized that Kentucky law divides “into at least four categories of
escape: leaving custody with the use or threat of force; leaving custody in a secured



        1
          Prior to the Supreme Court’s decision in Chambers, the Sixth Circuit had taken the view that
all escape offenses—from failure to report at one end of the spectrum, to a breakout at the
other—constituted crimes of violence. See, e.g., United States v. Bailey, 510 F.3d 562, 566 (6th Cir.
2007). In Chambers, the Supreme Court held that at least one type of escape conviction under Illinois
law—a “failure to report for penal confinement”—is not a “violent felony” under the ACCA. 555 U.S.
at 123. Following Chambers, we held in Ford that a “walkaway” escape is not a crime of violence within
the meaning of the sentencing guidelines. 560 F.3d at 426.
No. 10-6163            United States v. Stout                                                     Page 6


setting; leaving custody in a non-secured setting by ‘walking away’; or failure to report.”
Id. at 424.

         In this case, the proper classification of Stout’s offense is an escape by leaving
custody in a secured setting. Once again, within the relevant Shepard material, Stout
admits that he scaled the recreational area wall of his detention facility and then escaped
through a pre-existing hole in the fence. Such conduct falls squarely into the category
of “leaving custody in a secured setting” that we recognized in Ford. Id. at 424.
Specifically, in Ford, we discussed the differing nature of such conduct in comparison
to walkaway escapes:

         There is a difference between individuals who overcome physical
         barriers to freedom and those who walk off the grounds-those in other
         words who leave a facility without removing a physical restraint, without
         breaking a lock on a door, without climbing over a prison wall or
         security fence or without otherwise breaking through any other form of
         security designed to keep them put.

Id. (emphasis added).

         At least within the circumstances of this case, we will not further divide the
categories of section 520.030 of the Kentucky Revised Statutes outlined in Ford.2 There
are various ways in which a person might escape from custody in a secured facility, with
varying degrees of culpability. Nevertheless, the Court must not abandon a categorical
approach. Here, the category of leaving a secured setting “describe[s] roughly similar
forms of behavior” that “amount to variation on a single theme.” See Chambers,
555 U.S. at 127 (holding that although there were “various kinds of failure to report”
under the relevant statute, failure to report “constitut[ed] a single category”). As
suggested in Ford, escapes within this category involve purposeful action to “overcome
physical barriers to freedom.” 560 F.3d at 424. Additionally, as our sister circuits have
recognized, escapes from secured facilities are similar in nature as they involve the use
of stealth as well as the possibility of detection. See, e.g., United States v. Furqueron,

         2
            This is not to say that there are no other possible divisions, outside the four categories Ford
listed, of section 520.030 of the Kentucky Revised Statutes. As detailed above, however, Stout’s conduct
in scaling a jail wall clearly falls within the category of leaving the custody of a secured setting.
No. 10-6163         United States v. Stout                                           Page 7


605 F.3d 612, 615 (8th Cir. 2010); United States v. Pratt, 568 F.3d 11, 22 (1st Cir.
2009).

                                             IV.

         Having classified Stout’s offense, we must now determine whether it constitutes
a “crime of violence.” The use or threatened use of physical force is not an element of
an escape from a secured facility and, therefore, 18 U.S.C. § 16(a) does not apply.
Accordingly, the question becomes whether escaping from a secured facility “by its
nature, involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.” 18 U.S.C. § 16(b).

         As the Supreme Court has stated, “[§ 16(b)] covers offenses that naturally
involve a person acting in disregard of the risk that physical force might be used against
another in committing an offense.” Leocal, 543 U.S. at 10. Moreover, giving the terms
of § 16(b) their ordinary meaning, crimes of violence are “active crimes.” Id. at 11; see
also Johnson v. United States, 130 S.Ct. 1265, 1271 (2010) (indicating that the term
violent “connotes a substantial degree of force”). The Supreme Court has provided that
burglary is the “classic example” of a crime of violence under § 16(b). Leocal, 543 U.S.
at 10. In particular, “a burglary would be covered under § 16(b) not because the offense
can be committed in a generally reckless way or because someone may be injured, but
because burglary, by its nature, involves a substantial risk that the burglar will use force
against a victim in completing the crime.” Id.

         Applying these guidelines, escape from a secured facility is a crime of violence
within the meaning of 18 U.S.C. § 16(b). Escape from a secured facility is an active
crime, requiring intentional conduct on the part of the offender. As we implied in Ford,
such escapes involve individuals overcoming physical barriers, as well as security, and
are the type of “traditional escapes . . . apt to lead to serious risks of physical injury.”
560 F.3d at 424. Moreover, the risk involved is not simply accidental injury, but
includes the risk that the offender will use physical force against others and their
property in the course of committing the offense. Leaving a secured facility comes with
the clear possibility of detection and confrontation during the course of the escape.
No. 10-6163         United States v. Stout                                            Page 8


Given the unique intensity of a jailbreak scenario, it is natural to infer a significant risk
that the offender will be prone to use force against any person, or property, interfering
with completion of the crime. See, e.g., Pratt, 568 F.3d at 22 (“[E]scape from secure
custody is a stealth crime that is likely to cause an eruption of violence if and when it is
detected.”); cf. United States v. Hughes, 602 F.3d 669, 677 (5th Cir. 2010) (“[T]he act
is typically aggressive insofar as one who escapes prison is no doubt aware that armed
law enforcement will seek him out, potentially ending in a violent confrontation.”). In
other terms, given the serious consequences that result from capture, it is likely that
many offenders will not simply give up their escape if they encounter security.

        Furthermore, escape from a secure facility is similar to burglary, the classic crime
of violence pursuant to § 16(b). See, e.g., United States v. Proch, 637 F.3d 1262,
1268–69 (11th Cir. 2011) (concluding that escape from custody is similar to burglary);
Furqueron, 605 F.3d at 615–16 (same). Both crimes involve stealth and the possibility
of detection. These characteristics, combined with the serious nature of both crimes,
lead to the substantial risk that the offender will resort to violence if confronted prior to
the completion of the crime.

        Tellingly, in light of statistical data, the Seventh Circuit has found “that escapes
(other than walkaways) generate a sufficient risk of injury to count as crimes of
violence.” United States v. Templeton, 543 F.3d 378, 382 (7th Cir. 2008) (citing a study
reflecting “that 8% of escapees commit violence against guards in the process of getting
away”). We also recognize that other circuits have concluded that escape from a secured
facility is a crime of violence or violent felony within similar contexts. See, e.g., Proch,
637 F. 3d at 1269 (holding that escape from jail was a violent felony under the ACCA);
Hughes, 602 F.3d at 676–77 (same); Pratt, 568 F.3d at 22 (“[E]scape from secure
custody, by crawling under a fence at a county jail, was a ‘violent felony’ within the
meaning of the ACCA”); see also Furqueron, 605 F.3d at 616 (holding that escape from
a penal institution was a crime of violence within the meaning of the sentencing
guidelines).
No. 10-6163         United States v. Stout                                        Page 9


       Finally, in concluding that escape from a secured facility is a crime of violence
under 18 U.S.C. § 16(b), we are not attempting to revive an expansive “powder-keg”
approach. Prior to Chambers, various holdings of this and other circuits “turned on the
reasoning that every escape scenario is a powder keg because [a] defendant who escapes
from jail is likely to posses a variety of supercharged emotions and violence could erupt
at any time.” United States v. Anglin, 601 F.3d 523, 529 (6th Cir. 2010). Courts used
this rationale to designate walkaway escapes as violent crimes based on the potential of
what might happen if the offender was eventually caught. Id. Following Chambers and
Ford, we recognized that “the powder-keg theory has little, if any, continuing
persuasiveness.” Id. Our holding today is not based on broad speculation as to future
events that might occur after the crime. Rather, it is based on the substantial risk that
offenders who choose to escape from secured settings will engage in physical violence
during the course of the escape. This is exactly the type of analysis that 18 U.S.C.
§ 16(b) requires.

                                             V.

       For these reasons, we AFFIRM the decision of the district court.
No. 10-6163           United States v. Stout                                                   Page 10


                                         _______________

                                            DISSENT
                                         _______________

         BERNICE BOUIE DONALD, Circuit Judge, dissenting. Benji Stout is no
Edmond Dantès, who famously escaped from prison by cutting open a body bag with an
improvised knife and hiding in the bag, to be flung unknowingly into the sea by
gravediggers. See Alexander Dumas, The Count of Monte Cristo 172-75 (David Coward
ed., Oxford University Press 1990) (1845). Nor is he Andy Dufresne, who slowly
chiseled his way to freedom and destroyed a sewer pipe in effectuating his escape. See
The Shawshank Redemption (Castle Rock Entertainment 1994). I would have no quarrel
with the conclusion that either of their escapes would be a “crime of violence” for our
purposes today.

         Instead, an unarmed Stout climbed a wall and crawled through a hole in a prison
gate that he was not responsible for creating. Because the law and common sense
compel me to fundamentally disagree with the majority’s conclusion that such acts are
“crimes of violence,” I must respectfully dissent.

                                                   I.

         Simply put, I disagree with the proposition that our decision in United States v.
Ford, 560 F.3d 420 (6th Cir. 2009), applies here today. The primary basis for my
disagreement is this: we are dealing with an entirely different statute. Section 16 and
the ACCA’s violent felony provision are separate legislative creatures, deserving of
separate analyses.1

         I begin at the place where all federal laws find their beginning: Congress. Our
legislature selected § 16 as the basis for determining which violent crimes would serve
as a predicate offense making the possession of body armor illegal. See H.R. Conf. Rep.
107-685 § 11009 (2002). By cross-referencing § 16, Congress sought to have the statute

         1
           Like the majority, I posit that the ACCA’s residual clause and section 4B1.2 of the Sentencing
Guidelines should be read in pari materia. Because I have no need to draw distinctions between the two,
I will refer only to the ACCA’s provisions.
No. 10-6163        United States v. Stout                                         Page 11


operate in tandem with existing drug-trafficking weapons possession statutes. See 18
U.S.C. § 924(c)(3) (2000). In doing so, it impliedly opted not to adopt another definition
of “violent felony” that was already on the books—the ACCA’s. See 18 U.S.C.
§ 924(e)(2)(B) (2000). We must be mindful of the distinction that Congress drew when
it eschewed one for the other. To conflate the two statutes, as the majority does today,
is to disregard the careful contemplation the legislature undertook in writing the statute
the way it did. Cf. Cannon v. Univ. of Chicago, 441 U.S. 677, 696-97 (1979).

       Looking to the statutes themselves may be helpful in illustrating the difference
between the two. Section 16 provides:

       The term “crime of violence” means–
       (a) an offense that has as an element the use, attempted use, or threatened
       use of physical force against the person or property of another, or
       (b) 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 the course of committing the offense.

18 U.S.C. § 16 (2006) (emphasis added). In contrast, the violent felony provision of the
ACCA provides, in pertinent part:

       (B) the term “violent felony” means any crime punishable by
       imprisonment for a term exceeding one year . . . that—
               (i) has as an element the use, attempted use, or threatened
               use of physical force against the person of another; or
               (ii) is burglary, arson, or extortion, involves use of
               explosives, or otherwise involves conduct that presents a
               serious potential risk of physical injury to another. . . .

Id. § 924(e)(2) (emphasis added). I doubt anyone could validly posit that § 16(a) and
§ 924(e)(2)(B)(i) apply to section 520.030 of the Kentucky Revised Statutes, so I will
proceed by discussing only § 16(b) and § 924(e)(2)(B)(ii).

       I derive two points of significance in comparing the residual clauses of the two
statutes. First, § 16(b) is temporally constrained, whereas § 924(e)(2)(B)(ii) is not: the
substantial risk of physical force must arise “in the course of committing the offense.”
No. 10-6163            United States v. Stout                                                   Page 12


In contrast, § 924(e)(2)(B)(ii) merely requires conduct “that presents a serious potential
risk of physical injury to another.” Second, § 16(b) is contextually constrained in two
ways: (a) the use of physical force must arise from the “course of” committing the
offense, i.e., in order to effectuate the offense; and (b) the person who may potentially
use physical force must be the offender. Section 924(e)(2)(B)(ii) has neither facial
constraint.2

         These are not novel distinctions. This court has previously recognized that
§ 16(b) is constrained in a manner that the ACCA is not. See United States v. Amos,
501 F.3d 524, 527 (6th Cir. 2007) (“The clause ‘used in the course of committing the
offense,’ which does not appear in the ACCA, narrows the section 16(b) definition and
distinguishes it from that in the ACCA.”). Indeed, my colleagues on the court, writing
separately, have stressed the importance of distinguishing the two statutes. See id. at 530
(Batchelder, J., concurring) (“18 U.S.C. § 16 . . . is not identical to [18 U.S.C.
§ 924(e)(2)(B).”); id. at 531, 533-34 (McKeague, J., dissenting) (criticizing the reliance
on Leocal and § 16 in an ACCA violent felony case).

         On the surface, the majority appears to recognize that we are addressing a
different statute, but its analysis suggests that it is paying little more than lip service to
the nuances revealed by comparing both provisions. To make our otherwise-inapposite
decision in Ford binding in a manner that comports with § 16, my colleagues rely on
dicta from the Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), the
seminal case concerning § 16. They reiterate the Leocal Court’s observation that
burglaries, by their nature, “involve[] a substantial risk that the burglar will use force
against a victim in completing the crime.” Leocal, 543 U.S. at 10. They reason that “it
is natural to infer a significant risk that the offender will be prone to use force against
any person, or property, interfering with completion of [the escape].” (Maj. Op. at 8.)
Because burglaries and jailbreaks share the common attribute of carrying some inherent


         2
           I do not mean to suggest that a defendant, under the ACCA, would be responsible for the serious
potential risk of physical injury to another posed by another, e.g., a police officer wounding an innocent
bystander in an attempt to apprehend an escaped inmate who used improvised tools to effectuate his
escape. I am merely comparing the face of the two statutes.
No. 10-6163          United States v. Stout                                              Page 13


risk that the perpetrator will use physical force, they are alike. Thus, Leocal can be used
to sustain Ford’s obiter dicta that scaling a prison wall or climbing through a
compromised security fence, as Stout did here, is a crime of violence. Or so the
reasoning of the majority goes.

        I do not share my colleagues’ confidence that the law supports such contortion.
First, the reliance on Leocal’s dicta on burglaries is misplaced—or at the very least, out
of context. A burglary, like certain other crimes, is categorically sui generis: it is one
of several crimes that are so latent with the potentiality of harm that Congress, as well
as the courts, have recognized them to be inherently violent crimes. To complete the
reference in Leocal, it is helpful to look at the seminal ACCA violent-felony case:
Taylor v. United States, 495 U.S. 575 (1990).

        In Taylor, the Supreme Court, while analyzing the legislative history of the
violent felony provision, made several “useful observations” to fill in the gaps of such
history. One of these observations was the fact that an offender’s entry into a building
“often creates the possibility of a violent confrontation between the offender and an
occupant, caretaker, or some other person who comes to investigate.” Id. at 588. After
careful review of what Congress had contemplated, the court concluded that the
legislature believed “all burglaries serious enough to be punishable by imprisonment for
more than a year constituted a category of crimes that shared this potential for violence.”
Id. It was this careful intertwining of legislative history and judicial reasoning that likely
led to the Leocal Court’s observation that burglary was a “classic example” of an
inherently dangerous crime. See Leocal, 543 U.S. at 10. We have the benefit of neither
to support the inference of inherence that the majority suggests with respect to escapes.3

        Still, the lack of legislative history and extensive judicial commentary thereon
does not definitively forbid the majority’s attempt to bridge Ford with Leocal using
inherence as a foundational pier. For that, I turn to Ford itself. In that case, we
disavowed our past circuit precedent in which we deemed all escape offenses to be

        3
          As I explain below, the “powder keg” rationale is unconvincing and foreclosed by circuit
precedent.
No. 10-6163         United States v. Stout                                         Page 14


crimes of violence. Ford, 560 F.3d at 423 (emphasis added). We surmised that, after
Chambers, it was no longer “clear-cut.” Id. The impetus for our subdividing of the
Kentucky statute was the concession that not all escapes possessed the inherent
potentiality of harm that seems unquestionably latent in all of the categorically sui
generis offenses such as burglary.       In addition, the majority cannot reason that
walkaways were the exception and that inherent harm should be categorically recognized
for all other offenses; if that were true, we would not have sanctioned further mincing
of the Kentucky escape statute. See id. at 424. Therefore, the bridge between § 16 and
§ 924(e)(2)(B) is an illusory one.

                                             II.

        There is another aspect of the majority’s opinion that I find conflictive with
circuit precedent: its invocation of the “unique intensity of a jailbreak scenario” to
justify sustaining the “crime of violence” determination. The powder-keg reasoning,
which we have eschewed even in the context of the ACCA, seems to have made a
reappearance. My colleagues assert, in a somewhat conclusory manner, that our decision
today does not rest upon the buttress of the powder keg. I respectfully beg to differ.
Indeed, the majority’s analysis seems to belie this assertion.

        To justify its decision, the majority relies on cases from our sister circuits that
explicitly invoke the verboten rationale of the powder keg. See United States v. Hughes,
602 F.3d 669, 677 (5th Cir. 2010) (“It was in this sense that we termed escape a ‘powder
keg’ in Ruiz, and now reaffirm our holding in that case.”); United States v. Pratt,
568 F.3d 11, 22 (1st Cir. 2009) (“Therefore, the ‘powder keg’ rationale still applies to
such a crime.”). Notwithstanding my colleagues’ protestations to the contrary, it appears
that we are restocking the recently-emptied keg with fresh gunpowder. I, however,
would prefer to remain steadfast to our own circuit’s decision to attribute “little, if any,
continuing persuasiveness” to the powder-keg theory. See United States v. Anglin,
601 F.3d 523, 529 (6th Cir. 2010).
No. 10-6163        United States v. Stout                                         Page 15


                                            III.

       To illustrate why it is important to draw distinctions between § 16 and the
ACCA, I now address Ford itself, particularly the passage that has led to my quandary
today. In Ford, we opined that:

       There is a difference between individuals who overcome physical
       barriers to freedom and those who walk off the grounds—those in other
       words who leave a facility without removing a physical restraint, without
       breaking a lock on a door, without climbing over a prison wall or
       security fence or without otherwise breaking through any other form of
       security designed to keep them put.

560 F.3d at 424 (emphasis added). I note that, since Ford, the Supreme Court held in
Johnson v. United States, 130 S. Ct. 1265 (2010), that violence under the ACCA and
§ 16 must “connote[] a substantial degree of force.” Id. at 1271. Keeping this in mind,
it is not farfetched to say that climbing a wall or crawling through an open hole does not
ordinarily involve a “substantial degree of force,” as Johnson requires. Thus, to deem
such an escape “violent” for purposes of the ACCA, there must be some conduct outside
of the climbing or crawling itself that must pose a “substantial risk” of the use of
physical force against a person or property.

       This is where the distinction between § 16 and the ACCA’s “violent felony”
provision creates a deviation of disposition. It may very well be true, as the Ford court’s
reliance on the Seventh Circuit’s decision in United States v. Templeton, 543 F.3d 378
(7th Cir. 2008) suggests, that a wall-climbing inmate will “commit violent crimes such
as murder or robbery against civilians while on the lam.” Ford, 560 F.3d at 424. It may
also be true that a wall-climbing inmate is “significantly more likely than others to
attack, or physically to resist,” law enforcement attempting to apprehend him and return
him to the detention facility. Id. at 425. In the realm of the ACCA, it is perfectly
acceptable to take these considerations into account, as the violent felony provision
requires only that the conduct “present[] a serious potential risk of physical injury to
another.” See 18 U.S.C. § 924(e)(2)(B)(ii).
No. 10-6163        United States v. Stout                                         Page 16


       Not so under § 16. As I explain above, that provision constrains us both
temporally and contextually. For Stout, this means we should only consider the risk that
arises from his escape standing alone, not the risk arising from events that may occur
subsequent to his escape, including his apprehension. These limitations would not exist
under the ACCA, which is why Ford’s dicta would be tenable in that context.

       Moreover, the Ford decision undeniably rested on the broad swath of empirical
evidence evaluated in Templeton. Undoubtedly, a small part of the Seventh Circuit’s
reasoning in that case was based on the risk of harm that emanated during the escape.
See Templeton, 543 F.3d at 382. That court observed from a 2005 study that “8% of
escapees commit violence against guards in the process of getting away.” Id. Indeed,
our majority recognizes and relies upon this datum.

       What my colleagues do not reveal, however, is the data that can permissibly be
considered under the ACCA but not under § 16(b), in light of the latter’s statutory
constraints—in other words, the core of what made Ford possible. Because § 16(b)
requires that the risk arise from the “course of committing the offense,” we cannot look
to facts like the “11% to 15% chance of violent resistance to recapture,” or the
commission of “violent crimes such as murder or robbery against civilians while on the
lam.” See id. at 381-82 (emphasis added). Once the crime is complete, a defendant is
no longer “in the course of committing the offense,” and our inquiry of risk must end.
Under Kentucky law, once an inmate goes beyond a secured perimeter, “his departure
from the ‘detention facility’ [is] complete[].” Cope v. Commonwealth, 645 S.W.2d 703,
704 (Ky. 1983). When Stout stepped through the breach, his crime was complete; thus,
we cannot rely on the other statistics made available by Templeton to sustain his
conviction.

       The majority, cognizant of this, invokes the lone statistic that we are permitted
to consider: that a small percentage of non-walkaway escapees engage in violent
conduct as they are in the process of escaping from the facility. See Templeton, 543 F.3d
at 382. This statistic, however, does not distinguish between inmates who use physical
force against persons in effecting their escape, cf. Ky. Rev. Stat. § 520.020, inmates who
No. 10-6163           United States v. Stout                                                Page 17


use physical force against property, see, e.g., Webster v. Commonwealth, No. 2008-CA-
000347-MR, 2009 WL 50495, at *1 (Ky. Ct. App. Jan. 9, 2009), and inmates who use
neither. Put differently, we have one statistic which reveals that a fraction of all
escapees have engaged in physical resistance in their respective attempts to illicitly
obtain their freedom. Shrouded in such ambiguity, this seems inadequate to empirically
support the proposition that Stout committed a crime of violence in the form of his
escape. For this reason, Ford and its reliance on Templeton are not controlling here.

                                                 IV.

        No dissent is complete without some explanation as to how the case should have
been decided. I start with classification. The majority hints at the perplexing dilemma
that this case presents: either attempt to fit the square peg of Stout’s offense into one of
four previously-identified categories of escape recognized under the Kentucky escape
statutes or recognize a new category of offenses that would further dissect Kentucky law.
Picking the right label “makes all the difference.” See Ford, 560 F.3d at 424.

        If there was ever an occasion to depart from Ford’s quadripartite categorization
of the Kentucky escape statutes, this is it. Adopting a broad, sweeping categorization
of Stout’s offense that declares his crime to be one of “leaving custody in a secured
setting,” as the majority does, fails to capture the nuances of his offense that would
otherwise suggest that his crime was not a violent one. I do acknowledge, however, that
taking cognizance of a new offense category, viz. leaving custody in a compromised
secured setting where the unarmed inmate was not the perpetrator of the breach, would
put us in danger of endorsing the recognition of so many permutations of a single offense
so as to render meaningless Taylor’s mandate that the categorical approach be applied.4

        But I do not think it farfetched to subdivide escapes from secured facilities into
sub-classifications determined by an individual’s culpability in the compromising



        4
          It appears, however, that we have not shied away from such a multitudinous approach in other
contexts. See, e.g., United States v. Kratt, 579 F.3d 558, 563 (6th Cir. 2009) (adopting an approach
requiring interpretation of 250 different predicate offenses for the money laundering statutes but
nevertheless recognizing the “unsatisfying” nature of the approach).
No. 10-6163         United States v. Stout                                          Page 18


conduct. In Leocal, the Supreme Court explained that the focal point of the § 16(b)
analysis is not “the possibility that harm will result from a person’s conduct, but . . . the
risk that the use of physical force against another might be required in committing a
crime.” Leocal, 543 U.S. at 10. Because the word “use” in § 16 required “active
employment,” the Court surmised that “a higher degree of intent than negligent or
merely accidental conduct” was required as part of the offense. Id. at 9. From this, the
Court concluded that § 16(b) requires some mens rea, higher than that required for
negligence, that physical force will be used in some manner.

        I would therefore draw a distinction between escapes from secured custody that
require some degree of knowledge, intent, or recklessness with respect to the use of
physical force and escapes from secured custody that lack such mens rea. Stout’s
offense clearly falls into the latter category. There is a qualitative and categorical
difference between Stout’s scaling of a wall and escape through an already-compromised
barrier and a prisoner’s deliberate use of physical force to cause a breach in his escape.
See, e.g., Webster, 2009 WL 50495, at *1 (recalling the events leading to a section
520.030 conviction in which an inmate “cut a hole in the chain-link fence,” using a
“piece of steel that he had removed from the top of his cell door”). Stout certainly
possessed the requisite mens rea to escape from prison, but to say that he exhibited an
intent to use physical force to do so (or a reckless disregard thereof) by scaling a wall
and crawling through an existing breach is another matter entirely.

        After classifying Stout’s offense, I would faithfully adhere to Leocal’s central
premise: for an offense to be a “crime of violence” under § 16(b), it must naturally fall
within a “category of violent, active crimes.” 543 U.S. at 11. In its resolute focus on the
“active” component of this analysis, the majority neglects the other half of Leocal: the
crimes must be “violent.”       We cannot, after all, “forget that we ultimately are
determining the meaning of the term ‘crime of violence.’” Id.

        Mindful of what Johnson said about “violence”—that it must involve “a
substantial degree of force”—I cannot conclude that the manner of Stout’s escape posed
a risk, much less a substantial risk, that he would exercise such a degree of force against
No. 10-6163            United States v. Stout                                                   Page 19


the person or property of another to effectuate his escape. The only “force” that Stout
applied against the property of another was the physical exertion necessary to scale a
wall and exit through an already-existing breach of the secured facility. “In no ‘ordinary
or natural’ sense can it be said that a person risks having to ‘use’” a substantial degree
of force against the property of another in doing so. See id. at 11.5

         Nor could I conclude that Stout’s escape posed a “substantial risk” of a
“substantial degree of force” being used against the person of another. Because Stout
was an unarmed escapee, I cannot think of a rationale other than the since-eschewed
powder-keg theory that could sustain such a conclusion here. Certainly, had Stout
sheathed an improvised weapon because he may have had to use it, as Dantès did, I
would think differently. Nevertheless, this was not the case.

         Thus, I discern no substantial risk from Stout’s offense that a substantial degree
of physical force would be used against the person or property of another. I would
therefore hold that Stout’s conviction under the Kentucky escape statute was not a
“crime of violence” for purposes of § 16(b), and would reverse and remand with
instruction to dismiss the indictment.

                                                   V.

         If the law proves unpersuasive, perhaps common sense should prevail. See
Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 557 (6th Cir.
2012) (noting the Supreme Court’s reliance on common sense in a commercial speech
case and seeing fit to do the same). Here are the realities of our decision today. For
climbing a wall and exiting through an open hole in a fence as an unarmed inmate-
turned-escapee, Benji Stout is now deemed to have committed a crime of violence. We
are essentially sustaining Stout’s conviction on a single line of dicta from a case that
dealt with a different statutory scheme. Something is missing here—perhaps it is
common sense.


         5
          I would find the degree of force used here akin to the degree of force that a walkaway might use
to open a gate, jump over a ditch, or hop across a small stream.
No. 10-6163         United States v. Stout                                           Page 20


        The majority’s decision to rely on Ford is understandable. But it is also
unreasonable. Relying on Ford is tantamount to blind obeisance to a case that simply
does not compel it. The concept of dicta is a dangerous thing, and it is Stout who suffers
for it. See Alexander v. Baltimore Ins. Co., 8 U.S. (4 Cranch) 370, 379 (1808) (“It is
extremely dangerous to take general dicta upon supposed cases not considered in all
their bearings, and, at best, inexplicitly stated as establishing important law principles.”).

        What troubles me the most, however, is the reality that we are upholding Stout’s
conviction on a single statistic: that 8% of escapees commit violence against guards in
the process of getting away. We must be mindful of our longstanding legal maxim that
“probability is not a guide which a court, in construing a penal statute, can safely take.”
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 105 (1820). It appears that we
disregard this maxim today.

        For these reasons, I regretfully cannot join my colleagues in the majority and
must respectfully dissent.
