       Case: 12-40877     Document: 00512661408       Page: 1   Date Filed: 06/12/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                      No. 12-40877                             FILED
                                                                           June 12, 2014
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

                                                Plaintiff–Appellee,
v.

DESMOND DEON JONES,

                                                Defendant–Appellant.




                    Appeal from the United States District Court
                         for the Southern District of Texas



Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
         Desmond Deon Jones, convicted as a felon unlawfully in possession of a
firearm, challenges his sentence, contending that the district court erred in
concluding that his prior federal conviction for escaping from the custody of the
Bureau of Prisons by leaving a halfway house was a “crime of violence” within
the meaning of Sentencing Guidelines § 4B1.2(a). 1 We vacate the sentence and
remand.


                                            I


1   U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 4B1.2(a) (2011).
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                                         No. 12-40877
           Jones was convicted of possession of a firearm by a felon. 2                The
presentence report recommended a base offense level of 20 under
§ 2K2.1(a)(4)(A), based on the presentencing officer’s conclusion that Jones had
a prior felony conviction for a “crime of violence,” as defined in § 4B1.2(a). 3 The
prior felony conviction was under 18 U.S.C. § 751(a) for leaving a halfway
house.         The indictment underlying that conviction alleged that Jones
“knowingly escape[d] from the custody of the Bureau of Prisons, by absconding
from Dismas Halfway House in Corpus Christi, Texas, an institutional facility
in which he was lawfully confined . . . .” Jones objected to the presentence
report, arguing that this prior conviction did not constitute a crime of violence
and therefore, that the base offense level should be 14, which, with a Criminal
History Category of VI, would result in an advisory Sentencing Guidelines
range of 37 to 46 months of imprisonment. The district court overruled Jones’s
objection, concluding that the applicable advisory Guidelines range was 70 to
87 months of imprisonment. The district court sentenced Jones to 70 months
in prison. This appeal ensued.
                                                II
           Whether a district court correctly interpreted the Guidelines is a
question of law that we review de novo. 4 The determination that an offense is
a “crime of violence” is a legal question subject to de novo review. 5                 The
Guideline provision at issue is § 2K2.1, which applies to convictions for the
unlawful possession of a firearm by a felon. The base offense level is 20 if the
defendant “committed any part of the instant offense subsequent to sustaining



2   18 U.S.C. §§ 922(g)(1), 924(a)(2).
3   U.S.S.G. § 2K2.1(a)(4)(A) (2011).
4   United States v. Stoker, 706 F.3d 643, 645-46 (5th Cir. 2013).
5   Id.
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                                        No. 12-40877
one felony conviction of . . . a crime of violence.” 6 The commentary to § 2K2.1
provides that “crime of violence” is defined with reference to § 4B1.2(a) and
application note 1 of the commentary to § 4B1.2. 7 Under § 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 use of
                explosives, or otherwise involves conduct that presents a
                serious potential risk of physical injury to another. 8


         The commentary to § 4B1.2 elaborates, further defining what constitutes
a “crime of violence” for purposes of this section of the Guidelines:
         “Crime of violence” includes murder, manslaughter, kidnapping,
         aggravated assault, forcible sex offenses, robbery, arson, extortion,
         extortionate extension of credit, and burglary of a dwelling. Other
         offenses are included as “crimes of violence” if (A) that offense has
         as an element the use, attempted use, or threatened use of physical
         force against the person of another, or (B) the conduct set forth
         (i.e., expressly charged) in the count of which the defendant was
         convicted involved use of explosives (including any explosive
         material or destructive device) or, by its nature, presented a serious
         potential risk of physical injury to another. 9
Only the residual clause is at issue. The question is whether Jones’s prior
escape conviction qualifies as a crime of violence because it “involve[d] conduct




6   U.S.S.G. § 2K2.1(a)(4)(A) (2011).
7Id. cmt. n.1 (“‘Crime of violence’ has the meaning given that term in § 4B1.2(a) and
Application Note 1 of the Commentary to § 4B1.2.”).
8   U.S.S.G. § 4B1.2(a) (2011) (emphasis added).
9   Id. cmt. n.1 (emphasis added).

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                                         No. 12-40877
that present[ed] a serious potential risk of physical injury to another” 10 or “by
its nature, presented a serious potential risk of physical injury to another.” 11
          Jones’s prior conviction for escape was obtained under a federal statute,
which provides:
          Whoever escapes or attempts to escape from the custody of the
          Attorney General or his authorized representative, or from any
          institution or facility in which he is confined by direction of the
          Attorney General, or from any custody under or by virtue of any
          process issued under the laws of the United States . . . shall, if the
          custody or confinement is by virtue of an arrest on a charge of
          felony, or conviction of any offense, be fined under this title or
          imprisoned not more than five years, or both . . . . 12


          In determining what constitutes “a serious potential risk of physical
injury to another” under § 4B1.2(a) of the Guidelines, our court has considered
decisions of the Supreme Court construing the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(2)(B), to be instructive. 13 There are differences
between the residual clause in the ACCA’s definition of a “violent felony” and
§ 4B1.2(a)’s residual clause, as will be discussed in more detail. 14 However,
our court has held that like the residual clause of the ACCA’s definition of
“violent felony,” the residual clause in § 4B1.2(a), at a minimum, includes
crimes that, like the enumerated crimes in § 4B1.2(a), “typically involve
purposeful, violent, and aggressive conduct,” and that this “conduct is such




10   Id. § 4B1.2(a) (2011).
11   Id. cmt. n.1.
12   18 U.S.C. § 751(a).
13   See, e.g., United States v. Marquez, 626 F.3d 214, 217-18 (5th Cir. 2010).
14   Compare U.S.S.G. § 4B1.2(a) (2011) with 18 U.S.C. § 924(e)(2)(B).

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                                      No. 12-40877
that it makes more likely that an offender, later possessing a gun, will use that
gun deliberately to harm a victim.” 15
          Jones argues that the Supreme Court’s opinion in Chambers v. United
States, 16 a decision construing the ACCA, indicates that absconding from a
halfway house does not present a serious potential risk of injury to another.
The defendant in Chambers was convicted of failing to report to serve a penal
sentence under a state statute that described “several different kinds of
behavior” including failure to return from work or from a furlough, failure to
abide by the terms of home confinement, escape from custody, and escape from
a penal institution. 17 Categorizing a conviction for failure to report as distinct
from escape, the Supreme Court held that failure to report for imprisonment
was not a violent felony under the ACCA. 18 This holding was predominantly
supported by statistics compiled by the United States Sentencing Commission
showing that of 160 failures to report in 2006 and 2007, none resulted in the
use or threat of force, and only five (3.1%) involved a dangerous weapon. 19
          The same report upon which the Supreme Court relied in Chambers
categorized leaving a halfway house as “Leaving nonsecure custody,” a
category that included, without distinction, escapes from facilities such as
prison camps, as well as escapes from home detention. 20 Of 177 instances,
three (1.7%) involved the use of force or threat of force, and four instances



15 Marquez, 626 F.3d at 221 (quoting Begay v. United States, 553 U.S. 137, 144-45 (2008))
(internal quotation marks omitted).
16   555 U.S. 122 (2009).
17   Chambers, 555 U.S. at 126.
18   Id. at 126-30.
19Id. at 129, 131 (citing U.S. SENTENCING COMM’N,   REPORT ON FEDERAL ESCAPE OFFENSES
IN FISCAL YEARS 2006 AND 2007 7 (Nov. 2008)).
20   U.S. SENTENCING COMM’N, supra note 19, at 4.

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                                         No. 12-40877
(2.3%) involved a dangerous weapon. 21 These statistics support treating an
escape from a halfway house as conceptually different from an escape from
other types of correctional facilities when considering the potential risk of
physical injury to another.
          The Supreme Court’s decision in Chambers has led other circuit courts
to conclude that escape from a halfway house and other similar escapes are not
“crimes of violence” within the meaning of § 4B1.2. 22 We agree that typically,
such a crime does not present a potential risk of physical injury to another. In
addition to the statistics gathered by the Sentencing Commission, the
characteristics of commitment to a halfway house differ from commitment to
other penal facilities. A halfway house, also known as a community corrections
center or residential reentry center, represents “the lowest custody level within
the [federal prison] system.” 23 Individuals are generally required to be in the
facility from 9:00 pm to 6:00 am, and exceptions are made during these hours
for employment or other approved programming. 24                    As we have noted, “a
community corrections facility is not a jail.” 25 Leaving a facility that allows


21   Id. at 7.
22E.g., United States v. Clay, 627 F.3d 959, 970 (4th Cir. 2010); United States v. Hart, 578
F.3d 674, 680-81 (7th Cir. 2009); United States v. Ford, 560 F.3d 420, 425 (6th Cir. 2009); see
also United States v. Mills, 570 F.3d 508, 512-13 (2d Cir. 2009) (holding that a defendant’s
failure to return to his place of confinement was not a violent felony under the ACCA); United
States v. Lee, 586 F.3d 859, 870-71 (11th Cir. 2009) (same); United States v. Templeton, 543
F.3d 378, 383 (7th Cir. 2008) (holding, before Chambers was decided, that a “walkaway”
escape was not a crime of violence under § 4B1.2).
23   United States v. Shaw, 979 F.2d 41, 43 (5th Cir. 1992).
24See BUREAU OF PRISONS, STATEMENT OF WORK: RESIDENTIAL REENTRY CENTER 63 (Feb.
2012), available at www.bop.gov/business/docs/res_reentry_ctr_sow_2012.pdf.
25United States v. Voda, 994 F.2d 149, 152 (5th Cir. 1993); see also United States v. Chavez,
204 F.3d 1305, 1315 (11th Cir. 2000) (“We have previously held that confinement to a halfway
house at night with the requirement that a defendant work at a job or seek employment
during the day is a liberty ‘markedly different from custodial incarceration in a penitentiary.’”
(quoting Dawson v. Scott, 50 F.3d 884, 888 (11th Cir. 1995))); Bailor v. Salvation Army, 51
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                                         No. 12-40877
individuals to sign in and sign out does not typically involve “violent” or
“aggressive” behavior. “[A]n individual who simply walks away from custody
[is] just as unlikely as an individual who fails to report to custody ‘to call
attention to his whereabouts by simultaneously engaging in additional violent
and unlawful conduct.’” 26 Unlike some other escapes, leaving a halfway house
does not require overcoming physical barriers, breaking locks on doors, or
evading security personnel. 27           “Escaping” from a halfway house does not
typically “present a serious potential risk of physical injury” to others.
                                               III
          The Government contends that our decisions in United States v. Ruiz 28
and United States v. Hughes 29 are binding precedent that require us to hold
that Jones’s prior conviction for escape is a “crime of violence.” We disagree.
          In Ruiz, the defendant had previously been convicted under 18 U.S.C.
§ 751(a) for escaping from a federal prison camp. 30 The indictment underlying
the escape offense alleged that Ruiz “‘knowingly escape[d] from custody of [a
federal prison camp] . . . in which he was lawfully confined.’” 31 Ruiz asked this
court to consider facts that were not in the indictment, arguing that he “simply
walked away from a prison camp where no physical barriers prevented the



F.3d 678, 683 (7th Cir. 1995) (describing residents’ freedom of movement in a halfway house);
United States v. Parker, 902 F.2d 221, 222 (3d Cir. 1990) (“We think it clear that a period of
confinement [at a halfway house] cannot possibly be equated with an equivalent period of
imprisonment.”).
26   Lee, 586 F.3d at 870-71 (quoting Ford, 560 F.3d at 425).
27   Id. at 870.
28   180 F.3d 675 (5th Cir. 1999).
29   602 F.3d 669 (5th Cir. 2010).
30   Ruiz, 180 F.3d at 676.
31   Id. (alterations in original).

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                                         No. 12-40877
escape and no guards were armed.” 32 We considered only the contents of the
indictment and concluded that escape from a federal prison camp was a crime
of violence within the meaning of § 4B1.2. 33 We quoted decisions of the Tenth
Circuit to the effect that “‘[e]very 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.’” 34 In one of those decisions from the Tenth Circuit, the
defendant had been convicted of escape on two prior occasions, once for
escaping from a community treatment center and then for escaping from a
correction center. 35
            We did not have before us in Ruiz an indictment that charged absconding
from a halfway house. Our holding in Ruiz dealt with an escape from a prison
camp, which is not the equivalent of a halfway house. We are unpersuaded
that leaving and failing to return to a halfway house presents a “powder keg”
situation. We further note that in a habeas proceeding under 28 U.S.C. § 2255
after Chambers was decided, the Tenth Circuit has disavowed the decisions
that we cited favorably in Ruiz. 36 After our decision in Ruiz, the Tenth Circuit
held that a defendant’s prior conviction for “failure to report to a penal
institution after he was permitted to be away on an official pass” was not a
“violent felony” under the ACCA. 37 The Tenth Circuit expressly “disregard[ed]
[its] prior precedent” regarding failure-to-return escape convictions, citing



32   Id.
33   Id. at 677
34Id. (quoting United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir. 1997) (quoting United
States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994))).
35   Mitchell, 113 F.3d at 1533.
36   See United States v. Shipp, 589 F.3d 1084, 1090-91 (10th Cir. 2009).
37   Id. at 1086, 1090-91.

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                                         No. 12-40877
United States v. Mitchell and United States v. Gosling as being among its
“disregarded” decisions. 38
          The other decision of our court that the Government contends mandates
an affirmance of Jones’s sentence is United States v. Hughes. 39 That case
involved the ACCA, not § 4B1.2 of the Guidelines. 40 Hughes had previously
been convicted of escape from a federal institution, in violation of 18 U.S.C.
§ 751(a). 41 Our court applied the categorical approach, 42 as the Supreme Court
has directed in construing the ACCA, including its residual clause. 43 We
concluded that § 751(a) is divisible because it “contains multiple crimes” one of
which is “‘escape . . . from an[] institution . . . in which [a person] is confined,’” 44
and we applied the modified categorical approach 45 to determine that this was



38Id. at 1090 n.3; see also United States v. Charles, 576 F.3d 1060, 1066-70 (10th Cir. 2009)
(questioning whether, in light of Chambers, a walkaway escape is necessarily a “crime of
violence” under the career offender sections of the Guidelines, and vacating and remanding
for consideration of whether the walkaway escape at issue was necessarily a “crime of
violence”).
39   602 F.3d 669 (5th Cir. 2010).
40   Hughes, 602 F.3d at 673-77.
41   Id. at 676.
42   Id. at 674-76.
43See, e.g., Sykes v. United States, 131 S. Ct. 2267, 2272-73 (2011); Begay v. United States,
553 U.S. 137, 141 (2008) (“In determining whether this crime is a violent felony [under the
ACCA’s residual clause], we consider the offense generically, that is to say, we examine it in
terms of how the law defines the offense and not in terms of how an individual offender might
have committed it on a particular occasion.”) (citing James v. United States, 550 U.S. 192,
208-09 (2007) for the proposition that “attempted burglary is a violent felony even if, on some
occasions, it can be committed in a way that poses no serious risk of physical harm” (emphasis
in original)).
44   Hughes, 602 F.3d at 676 (quoting 18 U.S.C. § 751(a)) (last alteration added).
45 See, e.g., Chambers v. United States, 555 U.S. 122, 125-26 (2009) (“We have made clear,
however, that, for purposes of ACCA’s definitions, it is the generic sense of the word ‘felony’
that counts. The statute’s defining language, read naturally, uses ‘felony’ to refer to a crime
as generally committed. And by so construing the statute, one avoids the practical difficulty
of trying to ascertain at sentencing, perhaps from a paper record mentioning only a guilty
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                                         No. 12-40877
the crime of conviction. 46 Our court was constrained from looking beyond the
elements of the statute of conviction in Hughes because the categorical and
modified categorical approaches consider only the elements of the crime of
conviction and whether, typically, such a crime presents a serious potential
risk of harm to another person. 47 One of the inquiries in construing the
residual clause under the ACCA is whether, categorically, the risk posed by a
crime is the same kind of risk posed by the enumerated offenses in the ACCA. 48
For example, burglary is an enumerated offense in the ACCA.                               Not all



plea, whether the present defendant’s prior crime, as committed on a particular occasion, did
or did not involve violent behavior. Thus, to determine, for example, whether attempted
burglary [a non-enumerated offense] is a ‘violent felony,’ we have had to examine, not the
unsuccessful burglary the defendant attempted on a particular occasion, but the generic
crime of attempted burglary. . . . The Illinois statute now before us . . . places together in a
single numbered statutory section several different kinds of behavior. It separately describes
those behaviors as (1) escape from a penal institution, (2) escape from the custody of an
employee of a penal institution, (3) failing to report to a penal institution, (4) failing to report
for periodic imprisonment, (5) failing to return from furlough, (6) failing to return from work
and day release, and (7) failing to abide by the terms of home confinement. We know from
the state-court information in the record that Chambers pleaded guilty to ‘knowingly failing
to report’ for periodic imprisonment ‘to the Jefferson County Jail, a penal institution.’”)
(citations and some alterations omitted).
46   Hughes, 602 F.3d at 676.
47 See, e.g., James, 550 U.S. at 202 (discussing the categorical and modified categorical
approaches in construing the ACCA, explaining that “we ‘look only to the fact of conviction
and the statutory definition of the prior offense,’ and do not generally consider the ‘particular
facts disclosed by the record of conviction’”) (quoting Shepard v. United States, 544 U.S. 13,
17 (2005) (quoting Taylor v. United States, 495 U.S. 575, 602 (1990))); id. at 207-08 (rejecting
the argument that courts “cannot treat attempted burglary as an ACCA predicate offense
unless all cases present such a risk,” observing that “[o]ne could, of course, imagine a
situation in which attempted burglary might not pose a realistic risk of confrontation or
injury to anyone—for example, a break-in of an unoccupied structure located far off the
beaten path and away from any potential intervenors,” and holding that “the proper inquiry
is whether the conduct encompassed by the elements of the offense, in the ordinary case,
presents a serious potential risk of injury to another”); see also Sykes, 131 S. Ct. at 2272 (“So
while there may be little doubt that the circumstances of the flight in [the defendant’s] own
case were violent, the question is whether [the statute of conviction], as a categorical matter,
is a violent felony.”).
48   James, 550 U.S. at 203.

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                                     No. 12-40877
burglaries involve an actual confrontation between the burglar and occupants
of a home. But the risk of such a confrontation is what makes burglary a
“violent felony.” 49 Though attempted burglary is not an enumerated offense,
the risk of confrontation during an attempted burglary is the same as or
greater than that presented by a burglary. 50 In construing the ACCA, a court
considers a crime categorically in assessing the risk.
          That is what our court did in Hughes, concluding that the statutory
elements of Hughes’s conviction under 18 U.S.C. § 751(a) were that he escaped
from an institution in which he was confined. The statute of conviction did not
granulate this means of violating the statute further. Our court concluded that
escape from a penal institution in which one is confined typically “creat[es] a
situation described in the statutory language as involving ‘conduct that
presents a serious potential risk of physical harm to another.’” 51 We recognized
that even if failure to report were covered by § 751(a), “failures to report
accounted for only 10 percent of the instances of escape crimes the Sentencing
Commission considered.” 52 Accordingly, because escape from an institution
typically, though not always, presented a serious potential risk of physical
harm to another, it was within the ACCA’s residual clause. 53
          But the residual clause in § 4B1.2 differs materially from the ACCA’s
residual clause. The commentary to § 4B1.2 regarding the residual clause does
not have an analog in the ACCA. The commentary to § 4B1.2 provides that



 James, 550 U.S. at 203; see also Chambers, 555 U.S. at 128-29; Begay v. United States, 553
49

U.S. 137, 145-46 (2008).
50   James, 550 U.S. at 203-204.
51   Hughes, 602 F.3d at 676-77.
52   Id. at 677 n.7.
53   Id. at 677.

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                                         No. 12-40877
“[o]ther offenses are included as ‘crimes of violence’ if . . . the conduct set forth
(i.e., expressly charged) in the count of which the defendant was convicted
involved use of explosives (including any explosive material or destructive
device) or, by its nature, presented a serious potential risk of physical injury to
another.” 54 The commentary regarding the residual clause in § 4B1.2 directs
a court to look at conduct expressly charged in the count of conviction to
determine if that conduct by its nature presented a serious potential risk of
physical injury to another.
           Our en banc court held in United States v. Charles 55 that because the
express language in the commentary to § 4B1.2 pertaining to the residual
clause references conduct expressly charged in a count of conviction, “a crime
is a crime of violence under § 4B1.2(a)(2) only if, from the face of the indictment,
the crime charged or the conduct charged presents a serious potential risk of
injury to a person.” 56 We said that “[i]njury to another need not be a certain
result, but it must be clear from the indictment that the crime itself or the
conduct specifically charged posed this serious potential risk.” 57 We explained
that “Application Note 1, by requiring that other crimes must ‘by [their] nature’
present a ‘serous potential risk of physical injury to another,’ calls for a
categorical inclusion or exclusion of crimes and/or conduct.” 58 We note that
there is some inconsistency in our case law as to whether courts can consider
the conduct alleged in the indictment, or are strictly bound by the categorical
and modified categorical approaches, when applying the residual clause of


54   U.S.S.G. § 4B1.2 cmt. n.1 (2011).
55   301 F.3d 309 (5th Cir. 2002) (en banc).
56   Charles, 301 F.3d at 314.
57   Id.
58   Id.

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                                          No. 12-40877
§ 4B1.2(a)(2). 59 However, we are bound by this court’s en banc ruling in
Charles, which permitted consideration of the conduct alleged in the
indictment.
       The indictment underlying Jones’s conviction alleged that he “knowingly
escape[d] from the custody of the Bureau of Prisons, by absconding from
Dismas Halfway House in Corpus Christi, Texas, an institutional facility in
which he was lawfully confined, at the direction of the United States Attorney
General by virtue of a judgment and commitment of the United States District
Court . . . .” The conduct charged on “the face of the indictment” is that Jones
absconded from a halfway house. Absconding from a halfway house does not
categorically present a serious potential risk of physical injury to another.
       This holding is consistent with Chambers and is consistent with other
decisions from federal courts of appeals that have addressed the issue of
escapes from halfway houses or other similar walkaway escapes post-
Chambers. Each of our sister circuits to reach the issue has reached the
conclusion that escapes from halfway houses are not a “crime of violence.” 60
                                      *        *         *


59Compare id. at 313-14, and United States v. Lipscomb, 619 F.3d 474, 477-79 (5th Cir.
2010), with United States v. Mohr, 554 F.3d 604, 607, 609 (5th Cir. 2009), with United
States v. Stoker, 706 F.3d 643, 649-51 (5th Cir. 2013).
60See, e.g., United States v. Clay, 627 F.3d 959, 970 (4th Cir. 2010); United States v. Hart,
578 F.3d 674, 680-81 (7th Cir. 2009); United States v. Ford, 560 F.3d 420, 425 (6th Cir. 2009);
see also United States v. Mills, 570 F.3d 508, 512-13 (2d Cir. 2009) (holding that a defendant’s
failure to return to his place of confinement was not a violent felony under the ACCA); United
States v. Lee, 586 F.3d 859, 870-71 (11th Cir. 2009) (same); United States v. Templeton, 543
F.3d 378, 383 (7th Cir. 2008) (holding, before Chambers was decided, that a “walkaway”
escape was not a crime of violence under § 4B1.2). The Ninth Circuit reached this conclusion
before Chambers. See United States v. Piccolo, 441 F.3d 1084, 1085, 1088-90 (9th Cir. 2006).
The Tenth Circuit also seems to agree. In United States v. Charles, involving an escape from
a halfway house, the Tenth Circuit remanded to the district court to clarify the nature of the
escape. 576 F.3d 1060, 1068-69 (10th Cir. 2009). The district court then determined that the
escape was not a crime of violence. United States v. Charles, 667 F. Supp. 2d 1246 (D. Kan.
2009).

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                                No. 12-40877


      The sentence is VACATED. The case is remanded to the district court
for proceedings consistent with this opinion.




                                      14
