                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 06a0174n.06
                              Filed: March 8, 2006
                                 Case No. 05-5075

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                                    )
                                                              )
            Plaintiff-Appellee,                               )
                                                              )        ON APPEAL FROM THE
                   v.                                         )        UNITED STATES DISTRICT
                                                              )        COURT FOR THE MIDDLE
 ERNEST WAYNE ANGLIN,                                         )        DISTRICT OF TENNESSEE
                                                              )
            Defendant-Appellant.                              )
                                                              )
 _______________________________________                      )

BEFORE: BOGGS, Chief Judge, and BATCHELDER, Circuit Judge; COHN*, District Judge.

        ALICE M. BATCHELDER, Circuit Judge. Ernest Wayne Anglin (“Anglin”) appeals the

sentence imposed by the district court after Anglin pled guilty to one count of bank robbery, in

violation of 18 U.S.C. § 2113(a). The Pre-Sentence Investigation Report calculated Anglin’s

guideline range as 151-188 months’ incarceration and the district court adopted its findings,

sentencing him to 168 months in prison, three years of supervised release, and $266 in restitution.

Anglin assigns as error the district court’s treating the United States Sentencing Guidelines as

mandatory and its finding that a prior conviction under the federal escape statute, 18 U.S.C. §

751(a), is a “crime of violence” for sentencing guidelines purposes. Although we find no error in

the way the district court calculated Anglin’s sentence, we must remand this case to the district court

for re-sentencing under United States v. Barnett, 398 F.3d 516 (6th Cir. 2005).



        *
          The Honorable Avern L. Cohn, United States District Judge for the Eastern District of Michigan, sitting by
designation.
                                       I. Procedural History

       Anglin pled guilty to the charge of bank robbery, and he does not challenge that plea on

appeal. The facts of the robbery are therefore not material to this appeal. But Anglin did not enter

into any plea agreement with the government, nor did he admit, at the plea hearing, to any prior

convictions. At sentencing, Anglin objected to the Pre-Sentence Investigation Report’s conclusion

that he should be sentenced as a career offender because he had two prior convictions that qualified

under U.S.S.G. § 4B1.2 as “crimes of violence”: a 1995 conviction for violating the federal escape

statute, 18 U.S.C. § 751(a), and a 1984 Tennessee conviction for burglary of a dwelling. Anglin

conceded the fact of both convictions, including that the burglary was of a dwelling, but he objected

to the characterization of them as crimes of violence. As to the escape conviction, Anglin offered

a document from the Bureau of Prisons denoting Anglin’s escape offense as “non-violent.” Anglin

objected as well to being sentenced under the Sentencing Guidelines, citing Blakely v. Washington,

124 S. Ct. 2531 (2004), and argued that no facts relevant to a determination of career offender status

had been charged in the indictment or found by the jury beyond a reasonable doubt.

       The district court found that both of Anglin’s prior convictions were for crimes of violence,

relying with regard to the escape offense on United States v. Harris, 165 F.3d 1062 (6th Cir. 1999),

and treated the sentencing guidelines as mandatory pursuant to our decision in United States v.

Koch, 383 F.3d 436 (6th Cir. 2004). Anglin filed this timely appeal and asserts that, under the

“categorical approach,” a violation of the federal escape statute is not a “crime of violence” and that

he should not have been eligible for career offender status. He also complains that the district court

erred in treating the guidelines as mandatory and in finding the facts regarding his prior convictions




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by a preponderance of the evidence where those facts were not charged in the indictment and he had

not admitted them.

                                 II. Remand for Re-Sentencing

       The district court sentenced Anglin after our decision in Koch. The court treated the

sentencing guidelines as mandatory and did not impose an alternative sentence. Because Anglin

timely objected to this use of the guidelines, the issue was properly preserved for review, and the

government agrees that the case must be remanded to the district court for re-sentencing under

Barnett.

       Anglin also argues that because the district court found the facts of his prior convictions by

a preponderance of the evidence and Anglin had not admitted those facts, the sentence violated his

Sixth Amendment rights. This argument is foreclosed by the Supreme Court’s decisions in United

States v. Almendarez-Torres, 523 U.S. 224, 230 (1998); Apprendi v. New Jersey, 530 U.S. 466, 490

(2000); Blakely v. Washington, 542 U.S. 296, 301 (2004); and United States v. Booker, 543 U.S.

220, 244 (2005).

                            III. Calculation of the Guideline Range

       Anglin also challenges the district court’s classification of his prior conviction under the

federal escape statute as a “crime of violence” for guidelines calculation purposes. Although the

case must be remanded under Barnett, in the interests of judicial economy, we will review Anglin’s

claims of error in the calculation of his guidelines sentence, because Booker instructed sentencing

courts to take the guidelines into account when determining a defendant’s sentence. Booker, 543

U.S. at 259-60. In United States v. Davidson, 409 F.3d 304 (6th Cir. 2005), we determined that,

based on Booker’s instructions, we must review a district court’s application of the guidelines in the


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same way that we did before Booker because, although the guidelines are no longer mandatory, they

do form a starting point for the district court’s determination of the defendant’s sentence. Id. at 310.

          We review de novo the district court’s interpretations of the sentencing guidelines, and we

review its factual findings for clear error. United States v. Williams, 411 F.3d 675, 677 (6th Cir.

2005); United States v. Burke, 345 F.3d 416, 428 (6th Cir. 2003). We must defer to the district

court’s application of the guidelines to the facts. United States v. Charles, 138 F.3d 257, 266 (6th

Cir. 1998).

          The sentencing guidelines provide for a sentence enhancement based on the defendant’s

status as a “career offender,” as defined in U.S.S.G. § 4B1.1. That section provides that, in order

to be classified as a career offender: (1) the defendant must have been 18 years old when he

committed the offense for which he is to be sentenced; (2) that offense must have been a felony

constituting either a “crime of violence” or a “controlled substance offense”; and (3) the defendant

must have had at least two prior felony convictions falling into one or the other of those categories.

U.S.S.G. § 4B1.1(a). Anglin admitted at sentencing that he had been convicted of the burglary and

that burglary is an enumerated “crime of violence,” and he did not urge further his objection to that

conviction’s being counted in the career offender calculation. Nor does he pursue that claim on

appeal.

          Anglin’s challenge is to the use of his escape conviction in the career offender calculation.

Anglin pled guilty in 1995 to a violation of the federal escape statute, which provides that it is an

offense against the United States to escape from a penal institution or from various forms of

“custody.” Specifically, the statute provides for punishment for

          [w]hoever escapes or attempts to escape from the custody of the Attorney General
          . . ., or from any institution or facility in which he is confined by discretion of the

                                                    4
       Attorney General, or from any custody under or by virtue of any process issued
       under the laws of the United States by any court, judge, or magistrate judge, or from
       the custody of an officer or employee of the United States pursuant to lawful arrest
       ....

18 U.S.C. § 751(a). Section 751 is not one of the crimes specifically listed in the guidelines as a per

se crime of violence, but it may still be considered one if it “has as an element the use, attempted

use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(2).

       In Harris, on which the district court relied in this case, we addressed the same question we

address here, except that Harris’s prior escape conviction was under the Tennessee statute relating

to escape. 165 F.3d at 1067. The Tennessee statute made it a crime for “any person confined in a

county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction

of a criminal offense constituting a felony [to] escape or attempt to escape therefrom . . . .” Id. We

recognized that Harris’s offense was neither a burglary nor one of the other enumerated offenses

listed in U.S.S.G. § 4B1.2, stating that “[t]he question, then, comes down to this: Did the escape

offense ‘otherwise involve [] conduct that present[ed] a serious potential risk of physical injury to

another’ within the meaning of [U.S.S.G. § 4B1.2(a)(2)]?” Id.

       In answering that question, we noted that we could not take into account the particular facts

of Harris’s escape. Id. at 1068. Rather, courts are to consider whether escape is a crime of violence

using the “categorical” approach, which requires us to base our determinations on the statutory

definition of the crime. Id. We found that “at least two other circuits” that have addressed the

question have found that the crime of escape, by its very nature, presents a risk of violence and is

therefore a “crime of violence” for the purposes of the sentencing guidelines, and we agreed with

the Tenth Circuit that:




                                                  5
       every escape scenario is a powder keg, which may or may not explode into violence
       and result in physical injury to someone at any given time, but which always has the
       serious potential to do so. . . . A defendant who escapes from jail is likely to possess
       a variety of supercharged emotions, and in evading those trying to recapture him,
       may feel threatened by police officers, ordinary citizens, or even fellow escapees.
       Consequently, violence could erupt at any time. Indeed, even in a case where a
       defendant escapes from jail by stealth and inures no one in the process, there is still
       a serious potential risk that injury will result when officers find the defendant and
       attempt to place him in custody.

Id. (quoting United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994) (internal quotation marks

omitted).

       Though we recognized the well-established rule that if the court finds that certain conduct

falling within the statute’s coverage is properly considered non-violent, it may review the indictment

and any plea agreement to see the specific conduct with which this defendant was charged, we held

that Harris’s escape was categorically a “crime of violence” for sentencing guidelines purposes and

saw no occasion to examine any of the specifics of the offense. Id. See also Shepard v. United

States, 544 U.S. 13, 125 S. Ct. 1254, 1257 (2005) (adding that a court may also consider a plea

colloquy transcript and an “explicit factual finding by the trial judge to which the defendant

assented”).

       The United States argues that Harris dictates our decision in this case and cites to many other

decisions upholding the rationale that an “escape” is by nature a crime of violence. Anglin argues

that the categorical approach shows that the least objectionable conduct under the federal escape

statute could involve an action as simple as reporting late to serve a sentence, and that we must

therefore look to the circumstances of his offense, which he believes show his offense was non-

violent. While the federal escape statute plainly encompasses more conduct than the Tennessee

statute at issue in Harris, we have previously held, albeit in an unpublished opinion, that the Harris


                                                  6
rationale applies equally to § 751, which includes escape from any kind of “custody,” and does not

apply only to statutes outlawing escapes from prisons or work sites. See United States v. Rodgers,

230 F.3d 1361, 2000 WL 1434706, *4-5 (6th Cir. 2000) (Table). In another unpublished decision,

we recognized the validity of Harris and Rodgers and cited their holdings with approval. See United

States v. Roberts, 59 Fed. App’x 86 (6th Cir. 2003).

       Moreover, cases from other circuits have held that escape is categorically a crime of violence

even when the statute at issue encompasses a broader swath of conduct than escape from a prison

or work site. See United States v. Ruiz, 180 F.3d 675, 677 (5th Cir. 1999); United States v. Bryant,

310 F.3d 550, 553-54 (7th Cir. 2002). Though Anglin is correct that “custody” can encompass more

than being physically restrained in a jail cell or work camp, see United States v. Keller, 912 F.2d

1058, 1060 (9th Cir. 1990); Barry v. Bergen County Probation Dep’t, 128 F.3d 152, 160 (3d Cir.

1997); Edmunds v. Won Bae Chang, 509 F.2d 39, 41-42 (9th Cir. 1975); Phelps v. Barbara, 162

F.3d 1174 (10th Cir. 1998) (Table), and the passage consistently quoted from Gosling in support of

finding that escape is a crime of violence explicitly makes reference to circumstances that are only

applicable in the prison break context, see Gosling, 39 F.3d at 1142, the weight of the authority is

in favor of finding that a § 751 violation is categorically a “crime of violence.” Anglin cannot point

to any case that has decided this issue to the contrary. Accordingly, we need not examine the

specifics of Anglin’s escape, and we hold that the district court did not err in its guideline

calculations by treating the escape conviction as a crime of violence.

                                          IV. Conclusion

       For the foregoing reasons, we VACATE Anglin’s sentence and REMAND to the district

court for re-sentencing.


                                                  7
       Avern Cohn, District Judge, concurring in part and dissenting in part. I agree the case

must be remanded to the district court for re-sentencing under United States v. Barnett, 398 F.3d 516

(6th Cir. 2005). However, because not reporting to a designated institution voluntarily after being

directed to do so at sentencing is a violation of 18 U.S.C § 751(a), United States v. Keller, 912 F.2d

1058 (9th Cir. 1990), the circumstances of the escape should be examined before a violation of §

751(a) can be characterized a “crime of violence.”




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