                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                  File Name: 14a0002p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 12-2438
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 GEORGE EDWARD COVINGTON III,
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
        No. 1:12-cr-00088-1—Paul Lewis Maloney, Chief District Judge.
                                Argued: October 3, 2013
                         Decided and Filed: January 6, 2014
           Before: ROGERS, STRANCH, and DONALD, Circuit Judges.

                                  _________________

                                       COUNSEL
ARGUED: Geoffrey Upshaw, LAW OFFICE OF GEOFFREY UPSHAW, Kalamazoo,
Michigan, for Appellant. Sally J. Berens, UNITED STATES ATTORNEY’S OFFICE,
Grand Rapids, Michigan, for Appellee. ON BRIEF: Geoffrey Upshaw, LAW OFFICE
OF GEOFFREY UPSHAW, Kalamazoo, Michigan, for Appellant. Sally J. Berens,
UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
     DONALD, J., delivered the opinion of the court, in which ROGERS and
STRANCH, JJ., joined. STRANCH, J. (pg. 12), delivered a separate concurrence.
                                  _________________

                                       OPINION
                                  _________________

       BERNICE B. DONALD, Circuit Judge.                   Defendant-Appellant, George
Covington, III, appeals the district court’s designation of his prior conviction for prison
escape under Michigan Compiled Laws section 750.193 as a “crime of violence” for
purposes of a career offender sentence enhancement under § 4B1.1 of the United States


                                            1
No. 12-2438        United States v. Covington                                       Page 2


Sentencing Guidelines. Because an offense of breaking and escaping prison under
section 750.193 does not present the same “serious potential risk of physical injury to
another” as the offenses enumerated in § 4B1.2(a)(2) of the Sentencing Guidelines, we
REVERSE the district court’s determination and REMAND for resentencing.

                                             I.

       On May 25, 2012, George Covington, III (“Covington”) pled guilty to possession
of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c) and
possession of cocaine base with intent to distribute under 21 U.S.C. § 841(a). The
United States Probation Department recommended sentencing Covington as a career
offender pursuant to § 4B1.1 of the United States Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”) based on two prior felony convictions. Covington filed an objection to
the presentence report (“PSR”), arguing that his prior felony conviction for prison escape
under Michigan Compiled Laws section 750.193 did not qualify as a crime of violence
under the Guidelines.

       The district court heard arguments on Covington’s objection to the PSR at
sentencing and overruled the objection. Applying the Supreme Court’s risk levels
analysis from Sykes v. United States, 131 S. Ct. 2267, 2273 (2011), the district court then
found that Covington’s prior conviction for prison escape under section 750.193
presented risks similar enough to the offense of burglary, enumerated in § 4B1.2(a)(2),
to qualify as a crime of violence because it is a “stealth crime” with a risk of discovery,
likely to cause “an eruption of violence.”

       Accordingly, the district court applied the career offender enhancement and
sentenced Covington to 60 months on the firearm possession charge under 18 U.S.C.
§ 924(c), and 210 months on the drug charge under 21 U.S.C. § 841(a)(1), to run
consecutively. Covington timely appealed his sentence on the firearm possession charge
to this Court.

       The Amended Information filed by the State of Michigan in the prison escape
case charged Covington with breaking and escaping from prison contrary to Michigan
No. 12-2438        United States v. Covington                                        Page 3


Compiled Laws section 750.193. Covington was assigned to the Muskegon Community
Correction Center. The plea colloquy from Covington’s subsequent conviction on that
charge reveals that, one day after Covington had left the Center with permission on a
laundry pass, he returned ten minutes late. Appellant Br. at 46. Knowing that he would
be sent back to prison for violating the Center’s rules, Covington “went out the window
. . . jumped a fence and ran through the wooded area” to escape. Id.

                                           II.

       This Court reviews de novo a district court’s legal conclusion that a defendant’s
prior conviction constitutes a crime of violence. United States v. Bartee, 529 F.3d 357,
358 (6th Cir. 2008).

       U.S.S.G. § 4B1.1 provides significantly increased prison terms for a criminal
defendant who qualifies as a “career offender.” Before a defendant can be classified as
a career offender, a court must find that he meets three requirements: (1) he was at least
eighteen years old when he committed the offense charged; (2) the offense charged is
a felony that qualifies as a crime of violence or a controlled substance offense; and (3)
he has at least two prior felony convictions for either crimes of violence or controlled
substance offenses. U.S.S.G. § 4B1.1(a).

       The Guidelines then define crime of violence in § 4B1.2(a):

       The term “crime of violence” means 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.

The final portion of § 4B1.2(a)(2), beginning with “otherwise,” is known as the “residual
clause.” See, e.g., United States v. Ford, 560 F.3d 420, 421 (6th Cir. 2009).

       When determining which crimes fall within § 4B1.2(a)’s definition of crime of
violence, or the “violent felony” provision of Armed Career Criminal Act (ACCA),
No. 12-2438        United States v. Covington                                       Page 4


18 U.S.C. § 924(e)(1), federal courts use the “categorical approach.” Id. at 421-22. The
United States Supreme Court recently clarified the scope and application of the
categorical approach in Descamps v. United States, 133 S. Ct. 2276, 2283-87 (2013).
The Descamps Court traced the development of the categorical approach from its first
appearance in Taylor v. United States, 495 U.S. 575 (1990), to the present. Descamps,
133 S. Ct. at 2283-86. In Taylor, the Court adopted a “formal categorical approach” that
precludes sentencing courts from looking “to the particular facts underlying [a
defendant’s prior] convictions” when determining whether a prior conviction counts as
a predicate felony for purposes of the ACCA. Descamps, 133 S. Ct. at 2283 (quoting
Taylor, 495 U.S. at 600) (internal quotation marks omitted). Instead, the focus of the
categorical approach is on the elements of a defendant’s prior convictions. Id. (“The
key, [the Supreme Court] emphasized [in Taylor], is elements, not facts.”).

       The Descamps Court then discussed Shepard v. United States, 544 U.S. 13
(2005), which created the “modified categorical approach.” 133 S. Ct. at 2284. Taylor
had posited that there would be a “narrow range of cases” where the sentencing court
would have to look beyond the statutory elements to effectuate the categorical approach
because the statute includes “alternative elements.” Id. at 2283-84 (citing Taylor,
495 U.S. at 602). In Shepard, the Court actually addressed such a case. Id. at 2284
(citing Shepard, 544 U.S. at 17). The statute that served as the basis for the defendant’s
conviction in Shepard was “divisible,” meaning that the statute “comprise[d] multiple,
alternative versions of the crime.” Id. The sentencing court had to look beyond the
statutory elements to a restricted set of materials, including the charging documents, the
terms of a plea agreement, or the plea colloquy transcript because “[n]o one could know,
just from looking at the statute, which version of the offense Shepard was convicted of.”
Id. Even Shepard recognized, however, that the purpose of the modified categorical
approach is not to determine the factual basis of the prior plea, but rather the version of
the crime to which the defendant pled guilty. Id. (citing Shepard, 544 U.S. at 25-26).
Accordingly, even the modified categorical approach is bounded by this principle. See
Johnson v. United States, 559 U.S. 133, 144 (2010) (“[T]he ‘modified categorical
No. 12-2438         United States v. Covington                                        Page 5


approach’ that we have approved permits a court to determine which statutory phrase
was the basis for the conviction . . . .”).

        The Descamps Court went on to summarize the interplay between the categorical
approach and the modified categorical approach as follows:

        [T]he modified approach merely helps implement the categorical
        approach when a defendant was convicted of violating a divisible statute.
        The modified approach thus acts not as an exception, but instead as a
        tool. It retains the categorical approach’s central feature: a focus on the
        elements, rather than the facts, of a crime. And it preserves the
        categorical approach’s basic method: comparing those elements . . . .
        All the modified approach adds is a mechanism for making that
        comparison when a statute lists multiple, alternative elements, and so
        effectively creates “several different . . . crimes.”

133 S. Ct. at 2285 (quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)). Accordingly,
Descamps instructed the lower federal courts to “use the modified approach only to
determine which alternative element in a divisible statute formed the basis of the
defendant’s conviction.” Id. at 2293. “The modified approach does not authorize a
sentencing court to substitute . . . a facts-based inquiry for an elements-based one.” Id.
at 2293. Fact-based methods of inquiry outside of the “modified categorical” step thus
have been foreclosed. See, e.g., United States v. Stout, 706 F.3d 704, 706-09 (6th Cir.
2013) (using a fact-based inquiry to “hypothetically” divide a statute).

        Because a violent felony under the ACCA and a crime of violence under the
Guidelines “share essentially the same definitions,” Ford, 560 F.3d at 421, this Court
applies the same analysis to determine whether a defendant’s prior conviction constitutes
a crime of violence under the Guidelines. Id. at 421-22.

                                              III.

        In light of Descamps, there are two steps in applying the categorical approach to
determine whether a prior conviction constitutes a crime of violence under the
Guidelines or a violent felony under the ACCA. First, a court must ask whether the
statute at issue is divisible by determining if the statute lists “alternative elements.”
No. 12-2438         United States v. Covington                                        Page 6


Descamps, 133 S. Ct. at 2293. If so, as part of the modified categorical “step,” the court
may look to the Shepard documents—but only to see which alternative version of the
offense is at issue. Id. If the statute is not divisible, the specific facts of a defendant’s
conviction play no role whatsoever in the analysis. Id.

        Next, the court must ask whether the offense the statute describes, as a category,
is a crime of violence. See id. at 2287 (noting that the determination is an “on-off
switch” where an offense is a “predicate offense in all cases or in none”). Depending
on which clauses of the definitions of violent felony and crime of violence are at issue,
this inquiry may have as many as three parts. The first potential question is whether the
prior conviction 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)(1); see also 18 U.S.C.
§ 924(e)(2)(B)(i). The second question is whether the elements of the prior conviction
are equivalent to the elements of the generic definition of one of the offenses enumerated
in §§ 4B1.2(a)(2) and 924(e)(2)(B)(ii): burglary, arson, extortion, or a crime involving
the use of explosives. The final question under the residual clause is whether the
elements of the prior conviction involve “conduct that presents a serious potential risk
of physical injury to another.” U.S.S.G. § 4B1.2(a)(2); 18 U.S.C. § 924(e)(2)(B)(ii). If
the offense “sweeps more broadly” and “criminalizes a broader swath of conduct” than
world meet these tests, then the offense, as a category, is not a crime of violence. See
Descamps, 133 S. Ct. at 2281, 2283, 2289-91.

                                            IV.

        To determine whether to apply the formal categorical approach or its modified
variant to section 750.193, Michigan’s prison escape statute, we must first determine
whether the statute is divisible. If the statute is divisible, we must next determine which
statutory phrase serves as the basis for Covington’s conviction. Because prison escape
does not have “as an element the use, attempted use, or threatened use of physical force
against the person of another” and is not one of the offenses enumerated in
§ 4B1.2(a)(2), only the residual clause can potentially bring Covington’s conviction for
No. 12-2438           United States v. Covington                                              Page 7


prison escape within the definition of a crime of violence.1 U.S.S.G. § 4B1.2(a).
Finally, we must analyze whether the elements of that particular statutory phrase present
the same “serious potential risk of physical injury to another” as the elements of offenses
enumerated in § 4B1.2(a)(2). See Sykes, 131 S. Ct. at 2273.

        We first address whether section 750.193 is divisible within the meaning of
Descamps. In other words, does the statute list alternative versions of the same crime?
Id. at 2284. Subsection (1), which defines the offense, provides in pertinent part:

        A person imprisoned in a prison of this state who breaks prison and
        escapes, breaks prison though an escape is not actually made, escapes,
        leaves the prison without being discharged by due process of law,
        attempts to break prison, or attempts to escape from prison, is guilty of
        a felony . . . .

Mich. Comp. Laws § 750.193(1). Because the statute lists several, alternative ways to
violate the statute, including some escapes that involve the element of breaking and
some that do not, the statute is divisible.             See Descamps, 131 S. Ct. at 2284.
Accordingly, we apply the modified categorical approach.

        We must next determine what particular phrase of the statute Covington violated.
The Amended Information filed with the Michigan trial court alleged as follows:
“GEORGE COVINGTON, III, did, being a person imprisoned in the Muskegon County
Correctional Center, a prison of the State of Michigan, break prison and escape; contrary
to MCL 750.193; MSA 28.390.” Because the language in the charging document
corresponds exactly to the first phrase of the divisible statute, Covington’s prior
conviction was for breaking prison and escaping.

        The final step in our analysis, then, is to determine whether a conviction for
breaking and escaping under section 750.193, as a category, presents the same “serious
potential risk of physical injury to another” as the offenses enumerated in § 4B1.2(a)(2).
Sykes, 131 S. Ct. at 2272. The Supreme Court has decided two cases under the ACCA’s


        1
          The Government correctly concedes in its brief that “the inquiry here is whether Covington’s
prison escape conviction falls within the ‘otherwise’ residual clause.” Appellee Br. at 8.
No. 12-2438         United States v. Covington                                       Page 8


residual clause that each used a different analysis to answer this question. In Begay v.
United States, 553 U.S. 137 (2008), the Court addressed whether a prior conviction
under New Mexico’s DUI statute fell within the scope of the residual clause and held
that it did not. Id. at 141-42. The Begay Court reasoned that “DUI, a strict liability
crime, differs from a prior record of violent and aggressive crimes” like the offenses
enumerated in § 924(e)(1). Id. at 148. The analysis under Begay, then, is whether the
statute insists on “purposeful, violent, and aggressive conduct.” Id. at 145 (internal
quotation marks omitted).

        The Supreme Court’s subsequent decision in Sykes v. United States, 131 S. Ct
2267 (2011), addressed whether a prior conviction for vehicle flight under Indiana’s
resisting law enforcement statute fell within the scope of the residual clause and held that
it did. Id. at 2271, 2277. The Sykes Court reasoned, based on the text of the ACCA’s
residual clause, that “levels of risk divide crimes that qualify [as violent felonies] from
those that do not.” Id. at 2275. The analysis under Sykes, then, is whether “the risk
posed by [the crime in question] is comparable to that posed by its closest analog among
the enumerated offenses.” Id. at 2273 (internal quotation marks omitted).

        On its face, the Sykes decision appears to limit application of Begay to prior
convictions where the statute at issue does not have “a stringent mens rea requirement.”
Id. at 2275. This Court, however, has reasoned that the two analyses are more
supplementary than distinct. See United States v. Denson, 728 F.3d 603, 610 (6th Cir.
2013). Here it is not necessary to reach Begay’s “purposeful, violent, and aggressive”
standard, because the analysis would be redundant. See id.

        For a breaking and escaping prison conviction under section 750.193 to
constitute a crime of violence under the Guidelines, the elements of breaking and
escaping prison must present a similar “serious potential risk of physical injury to
another” as the offenses enumerated in § 4B1.2(a)(2). Sykes, 131 S. Ct. at 2272. Those
enumerated offenses are burglary of a dwelling, arson, extortion, and crimes involving
the use of explosives. U.S.S.G. § 4B1.2(a)(2). The crime of breaking and escaping
No. 12-2438         United States v. Covington                                        Page 9


prison under Michigan Compiled Laws section 750.193 does not categorically present
comparable risks.

        The district court relied on a risk that this Court has held no longer suffices to
trigger the residual clause. At Covington’s sentencing, the district court stated:

        In this case, in the Court’s judgment, the underlying issue here is a
        comparison of the risk levels attendant to burglary, which the Court finds
        is the most analogous enumerated offense and Mr. Covington’s crime .
        ...
        As two other Circuits have noted, in the Court’s judgment, the type of
        escape here is a stealth crime similar to burglary. You are going out of
        a window undetected, you are not walking out the front door where
        presumably there are at least personnel. I don’t want to describe them as
        guards, but there are at least center personnel at that location. For that
        notion, I would cite the Pratt case at 568 F.3d at page 11. Admittedly, a
        First Circuit case, but the Court finds that case to be helpful, as well as
        the Furqueron case, 605 F.3d 612, at 615. Again, an out-of-circuit case,
        that’s an Eighth Circuit case. Like burglary, the risk of harm here comes
        not from the act itself, but from the possibility of being discovered. Such
        discovery, says the Eighth Circuit, is likely to cause an, in their words,
        an eruption of violence. That’s Furqueron at 615, or the Court would
        state here, in the language of Sykes end in confrontation leading to
        violence.

As this passage reflects, the district court relied on cases from the First and Eighth
Circuits that reached their respective holdings based on the powder keg theory. See
United States v. Furqueron, 605 F.3d 612, 615 (8th Cir. 2010); United States v. Pratt,
568 F.3d 11, 22 (1st Cir. 2009)). The label “powder keg theory” describes the rationale
that “escape from a secured setting is ‘a stealth crime that is likely to cause an eruption
of violence if and when it is detected.’” Furqueron, 605 F.3d at 615 (quoting Pratt,
568 F.3d at 22). This rationale “has little, if any, continuing persuasiveness” in the Sixth
Circuit under our precedent in United States v. Anglin, 601 F.3d 523, 529 (6th Cir.
2010). If the district court had not relied on the powder keg theory when conducting its
risk levels analysis, it could not have concluded that Covington’s prior conviction under
section 750.193 is a crime of violence.
No. 12-2438           United States v. Covington                                             Page 10


        Accordingly, the most appropriate analysis compares the risk levels inherent in
the elements of breaking and escaping prison under Michigan law to the risk levels
inherent in § 4B1.2(a)(2)’s enumerated offenses without consideration of the powder keg
theory. Because none of the enumerated offenses is a particularly close analog to
breaking and escaping prison, we will compare the elements of Covington’s prior
conviction to all the enumerated offenses. The elements of Covington’s prior conviction
are (predictably) breaking and escaping. Michigan law defines breaking as applying any
force at all to any method of ingress (here, egress) from a building.2 See, e.g., People
v. Toole, 576 N.W.2d 441, 443 (Mich. Ct. App. 1998) (“Under Michigan law, any
amount of force used to open a door or window to enter the building, no matter how
slight, is sufficient to constitute a breaking.”). In order to escape prison under section
750.193, Michigan law requires a prisoner to “remove[] himself from the imposed
restraint over his person and volition.” People v. Stubblefield, 299 N.W.2d 4, 5 (Mich.
Ct. App. 1980).

        The elements of breaking and escaping from prison under section 750.193 and
the elements of burglary of a dwelling share only one risk: the potential for discovery
and capture, which, as we have explained, we may not consider under Anglin. See
601 F.3d at 529. Further, even if we could consider this risk of confrontation, the risk
posed by breaking into someone’s home with the intent to commit a felony is
considerably greater than the risk posed by breaking out of a prison. Finally, even if the
risks associated with breaking and escaping could sometimes be comparable to those
associated with burglary, the present offense also criminalizes walking out of an
unguarded area by pushing open a partially ajar door. The statute thus covers a much
“broader swath of conduct” than what might arguably qualify as a crime of violence.
See Descamps, 133 S. Ct. at 2276.

        In Sykes, the Supreme Court described the risks attendant to the elements of
arson as “entail[ing the] intentional release of a destructive force dangerous to others.”

        2
           As the Michigan courts have not defined “breaking” for the purposes of section 750.193, this
definition comes from case law interpreting the Michigan burglary statute, Mich. Comp. Laws section
750.110.
No. 12-2438        United States v. Covington                                     Page 11


Sykes, 131 S. Ct. at 2273. The elements of breaking and escaping from prison do not
present the same risk of injury to another as intentionally unleashing a destructive force.
Likewise, the risk of injury to another associated with committing a crime involving the
use of explosives far outstrips the risk inherent in the elements of breaking and escaping
from prison.

       Finally, because breaking and escaping prison under section 750.193 does not
involve a key element of extortion—a direct threat of future use of force against the
person or property of another—that crime also presents risks of injury to another
significantly greater than the elements of section 750.193. See James Lindgren,
“Blackmail and Extortion,” in 1 Encyclopedia of Crime and Justice 115, 155 (Sanford
H. Kadish ed., 1983) (“[A] person commits . . . extortion when he threatens to do bodily
harm in the future.” (emphasis removed)). Under the Sykes risk levels approach, then,
breaking and escaping prison under section 750.193 is not a crime of violence for
purposes of the Guidelines.

                                            V.

       Because a conviction for breaking and escaping prison under Michigan Compiled
Laws section 750.193 does not, as a category, present the same “serious potential risk
of physical injury to another” as the offenses enumerated in Guidelines § 4B1.2(a)(2),
we REVERSE the district court’s determination and REMAND for resentencing.
No. 12-2438         United States v. Covington                                      Page 12


                              ________________________

                                  CONCURRENCE
                              ________________________

        JANE B. STRANCH, Circuit Judge, concurring. I concur with the lead opinion
in this case. I write separately only to address my prior opinion in United States v.
Denson, 728 F.3d 603 (6th Cir. 2013). This court in Denson accurately applied the
modified categorical approach as clarified in Descamps v. United States. Id. at 608, 612-
13 (citing Descamps v. United States, 133 S. Ct. 2276, 2281 (6th Cir. 2013)). However,
in Denson, I put the “divisibility” question at the end, leading to a somewhat redundant
analysis. Id. at 612-13. I agree with my colleagues here that the proper order of analysis
after Descamps is to put the “divisibility” question first. If a statute is divisible, then a
court may consider the Shepard documents briefly, only to determine the alternative
offense of which the defendant was convicted. See Descamps, 133 S. Ct. at 2283-85.
From there, the courts should apply the same categorical test used for indivisible
statutes. See id. at 2285. I find this “order-of-operations” to be more in accord with the
instructions of Descamps.
