                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-1716
                                    ___________

 United States of America,              *
                                        *     Appeal from the United States
             Plaintiff-Appellee,        *     District Court for the
                                        *     Eastern District of Missouri
      v.                                *
                                        *       [PUBLISHED]
 Earnest L. Pearson,                    *
                                        *
             Defendant-Appellant.       *

                                    ___________

                             Submitted: December 8, 2008
                                 Filed: January 30, 2009
                                  ___________

Before MELLOY, and BENTON, Circuit Judges, and DOTY,1 District Judge.
                           ___________

DOTY, District Judge.



       Earnest L. Pearson pleaded guilty to possession with intent to distribute five
grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). The district
court sentenced Pearson to 188 months imprisonment. At sentencing, the district
court determined that Pearson was a career offender under United States Sentencing


      1
      The Honorable David S. Doty, United States District Court for the District of
Minnesota, sitting by designation.
Guidelines § 4B1.1(a) because of his earlier felony convictions for possession with
intent to distribute more than fifty grams of cocaine base in violation of 21 U.S.C. §
841 and escape in violation of 18 U.S.C. § 751(a). As a result, the district court
calculated Pearson’s Guidelines sentencing range pursuant to a criminal history
category VI and an offense level of 31, which resulted in an imprisonment range of
188 to 235 months.2 See U.S.S.G. § 4B1.1(b). Pearson appeals, arguing that he is not
a career offender because his escape conviction is not a “crime of violence” under
Guidelines § 4B1.1(a). We reverse and remand for resentencing.

       We review de novo the district court’s interpretation and application of the
Guidelines. United States v. Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008). Because
Pearson did not object to his career offender status at sentencing, he is entitled to relief
only if the district court “committed an error that was plain, that affected his
substantial rights, and that seriously affects the fairness, integrity or public reputation
of judicial proceedings.” United States v. Davis, 538 F.3d 914, 917 (8th Cir. 2008)
(quotations omitted). “When at the time of sentencing the law was settled and is
‘clearly contrary to the law at the time of appeal . . . it is enough that an error be
“plain” at the time of appellate consideration.’” Id. at 917-18 (quoting Johnson v.
United States, 520 U.S. 461, 468 (1997)).

       A defendant is a “career offender” under the Guidelines if he was eighteen years
old at the time he committed a felony crime of violence or controlled substance
offense and had “at least two prior felony convictions of either a crime of violence or
a controlled substance offense.” U.S.S.G. § 4B1.1(a). A “crime of violence” is an
offense 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 use of explosives, or otherwise involves conduct that presents

       2
       Without the career-offender enhancement, Pearson’s Guidelines sentencing
range would have been 57 to 71 months based upon an offense level of 21 and a
criminal history category of IV.

                                            -2-
a serious potential risk of physical injury to another.” Id. § 4B1.2(a). We assess
whether a crime “otherwise involves conduct that presents a serious risk of physical
injury to another” on a categorical basis, considering the elements of the offense
without looking at the facts supporting the underlying conviction. See United States
v. Williams, 537 F.3d 969, 972 n.1 (8th Cir. 2008) (citing Begay v. United States, 128
S.Ct. 1581, 1584 (2008)). Thus, our inquiry is whether the generic crime of escape
is “roughly similar, in kind as well as in degree of risk posed, to the example[]
[crimes] themselves.” Begay, 128 S.Ct at 1585. In other words, we ask whether
escape involves similar “purposeful, violent, and aggressive conduct” potentially at
issue in commission of the crimes listed in Guidelines § 4B1.2(a)(2). Id. (quotations
omitted).

       Our circuit’s precedent holds that all escape convictions are “crimes of
violence” under the “otherwise” clause of Guidelines § 4B1.2. United States v.
Nation, 243 F.3d 467, 472 (8th Cir. 2001) (“We believe that every escape, even a so-
called ‘walkaway’ escape, involves a potential risk of injury to others.”); see also
United States v. Headbird, 461 F.3d 1074, 1079 (8th Cir. 2006) (same); United States
v. Gary, 341 F.3d 829, 836 (8th Cir. 2003) (same). After oral argument in this case,
however, the United States Supreme Court held that crimes “characterized by a failure
to present oneself for detention on a specified occasion” are not “violent felon[ies]”
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). See
Chambers v. United States, No. 06-11206, 2009 U.S. LEXIS 580, slip op. at 5, 7 (Jan.
13, 2009). Contra United States v. Ingram, 501 F.3d 963, 968 (8th Cir. 2007),
vacated, 2009 U.S. LEXIS 831 (Jan. 21, 2009); United States v. Adams, 442 F.3d 645,
647 (8th Cir. 2006) (failure to return to confinement a violent felony); United States
v. Abernathy, 277 F.3d 1048, 1051 (8th Cir. 2002) (“walkaway” escape a violent
felony). “We construe ‘violent felony’ under [ACCA] to have the same meaning as
‘crime of violence’ under [Guidelines] § 4B1.2.” United States v. Nolan, 397 F.3d
665, 666 (8th Cir. 2005). Therefore, we must determine whether Chambers affects
our holding that escape in violation of § 751(a) is a “crime of violence.” See United

                                         -3-
States v. Mills, 223 Fed. Appx. 516 (8th Cir. 2007), vacated, 2009 U.S. LEXIS 657
(Jan. 21, 2009); see also Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 838 (8th
Cir. 1997) (one panel of this court can overrule another panel “when the earlier panel
decision is cast into doubt by a decision of the Supreme Court”).

       The Illinois escape statute in Chambers distinguished between escapes from
custody (i.e., escape from a penal institution or the custody of an employee of a penal
institution) and the failure to return or report to custody (i.e., failure to report to a
penal institution or for periodic imprisonment, and failure to return from furlough or
from work and day release). Chambers, No. 06-11206, 2009 U.S. LEXIS 580, slip op.
at 4-5. The court noted that the “behavior that likely underlies a failure to report
would seem less likely to involve a risk of physical harm than the less passive, more
aggressive behavior underlying an escape from custody.” Id. at 4. More specifically,
the court stated that a failure to report is “a form of inaction, a far cry from the
purposeful, violent, and aggressive conduct potentially at issue when an offender uses
explosives against property, commits arson, burgles a dwelling or residence, or
engages in certain forms of extortion.” Id. at 5-6 (quotations omitted). Therefore, the
court concluded that a conviction for failure to report to a penal institution was
categorically not a “violent felony” under ACCA. Id. at 7. Accordingly, Chambers
overrules this circuit’s precedent that all escapes - including failures to return or report
to custody - are crimes of violence, but leaves intact our precedent holding that escape
from custody is a crime of violence.

       Section 751(a) prohibits “escap[ing] or attempt[ing] to escape from the custody
of the Attorney General,” which includes failing to return to custody. 18 U.S.C.
§ 751(a); United States v. Tapio, 634 F.2d 1092, 1093-94 (8th Cir. 1980) (failure to
return as required is escape); see also United States v. Bailey, 444 U.S. 394, 407
(1980) (“escape” under § 751(a) “means absenting oneself from custody without
permission”). As a result, § 751(a) is overinclusive because it covers conduct that
does and does not trigger the career offender enhancement. See United States v.

                                            -4-
Medina-Valencia, 538 F.3d 831, 833 (8th Cir. 2008). Thus, we apply a modified
categorical approach, in which a court “may refer to the charging document, the terms
of a plea agreement, jury instructions, or comparable judicial records to determine”
whether the earlier offense was a crime of violence. See United States v. Montenegro-
Recinos, 424 F.3d 715, 717 (8th Cir. 2005) (citing Shepard v. United States, 544 U.S.
13, 26 (2005); Taylor v. United States, 495 U.S. 575, 602 (1990)).

       The district court did not apply the modified categorical approach, and the
record on appeal does not allow such an inquiry.3 Because the law on appeal is plain,
it would be error not to consider whether Pearson’s conviction under § 751(a) was a
career-offender-qualifying escape from custody, or a non-qualifying failure to return
or report to custody. Moreover, the applicability of Guidelines § 4B1.1 substantially
alters Pearson’s sentencing range. Therefore, we determine that failure to identify the
character of Pearson’s escape conviction would affect his substantial rights and
seriously affect the fairness, integrity or public reputation of judicial proceedings.
Accordingly, we reverse and remand for resentencing in accordance with this opinion.

                       ______________________________




      3
        Pearson indicates that the presentence investigation report prepared before
sentencing on the escape conviction describes the offense as a “fail[ure] to return as
directed.” (Appellant’s Br. at 8.) That report, however, is not part of the appellate
record.

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