Emmаnuel Lewis Hart pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). The district court sentenced him to 156 months’ imprisonment and three years of supervised release under the career offender Guideline, U.S.S.G. § 4B1.1. We now vacate Mr. Hart’s sentence and remand his case to the district court for resentencing in light of this opinion.
I
BACKGROUND
On May 13, 2006, Mr. Hart entered a Chicago bank carrying a small black bag and a robbery note. He handed a teller the note, which read: “There is a bomb in this bag give me the 100.00, 50.00, & 20.00 with no dye pack’s & no cops or I’ll blow this motherf[ — ]ker up its up to you if anybody get hurt.” R.15. The teller gave Mr. Hart $2,400, and he left the bank. On his way out, he set the black bag on a table; there was no bomb in the bag. The police apprehended Mr. Hart the same day. On November 20, 2006, Mr. Hart pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). The presentence investigation report (“PSR”) concluded that Mr. Hart was a career offender under section 4B1.2 of the United States Sentencing Guidelines. This determination was based on his two prior convictions for crimes of violence: a bank robbery conviction in 1998 and a conviction for escape in 2005. Applying the career offender Guideline, the PSR calculated Mr. Hart’s advisory sentencing range at 151 to 188 months and recommended a sentence of 168 months. The PSR also opined that there was no basis for a sentence below the guidelines range.
Mr. Hart raised two objections to the PSR. He first argued that his escape conviction was not a crime of violence because it was a “walkaway” escape; that is, a non *675 violent departure from nonsecure custody. The Government agreed that his escape was of the walkaway variety. The parties agree that at the time of his escape in June 2004, Mr. Hart was serving the last portion of his sentence for the 1988 bank robbery in a nonsecure halfway house run by the Salvation Army. One day, he received a two-hour pass permitting him to leave the facility to go shopping at a local grocery store. He returned late, apparently because he mistakenly believed he had a four-hour pass. The Salvation Army required residents who returned late to submit to a blood test, but rather than do so, Mr. Hart left the facility. Shortly thereafter, the police found him sleeping on a park bench and took him back into custody without incident. Based on these facts, Mr. Hart argued at his sentencing hearing in this case that the escape should not be treated as a crime of violence for sentencing purposes because it did not create a serious risk of physical injury to anyone.
Mr. Hart also submitted that a bеlow-guidelines sentence was appropriate in his case because of his long history of mental illness. Mr. Hart is a diagnosed schizophrenic; symptoms of his illness, including delusions and auditory hallucinations, began when he was six years old and continue to this day. Over the years, Mr. Hart has been treated with various antipsychotic medications and has participated in several mental health programs. Prior to sentencing, he was examined by Dr. Bernard Rubin, a forensic psychiatrist. Dr. Rubin concluded that Mr. Hart was suffering from moderately severe schizophrenia at the time of the robbery, and that he knew his conduct was criminal, but could not control his behavior because it was driven by “psychotic and disordered thinking with a resultant lack of judgmental control.” R.45 at 4. Mr. Hart contended at sentencing that a below-guidelines sentence was appropriate in his case because he would not receive the necessary psychiatric treatment while he was in prison.
The district court agreed with the PSR’s conclusion that both Mr. Hart’s bank-robbery and escape convictions were crimes of violence and that he therefore should be sentenced as a career offender under U.S.S.G. § 4B1.1. The court declined to impose a below-guidelines sentence based on Mr. Hart’s mental illness. Although the district court was convinced that Mr. Hart had legitimate mental problems, it concluded that a below-guidelines sentence was not appropriate. Among other things, the court determined that, because of financial limitations, Mr. Hart would not receive adequate psyсhiatric treatment outside of prison and that he would continue to present “a danger to himself and a danger to others.” R. 38 at 11. The court concluded that it would be best for Mr. Hart and for society if he were incarcerated for a period of time consistent with his guidelines range. The court reasoned that prison would provide Mr. Hart with much-needed structure and that he would be less of a threat to himself and others upon release because he would be older. Accordingly, the court sentenced Mr. Hart to a within-guidеlines term of 156 months’ imprisonment, to be followed by three years of supervised release.
Mr. Hart sought review of his sentence in this court, challenging both the district court’s classification of his escape as a crime of violence and its refusal to impose a below-guidelines sentence. At the time this appeal was briefed and argued, our precedent made it clear that escape was categorically a crime of violence.
1
On
*676
April 16, 2008, however, the Supreme Court of the United States issued its decision in
Begay v. United States,
— U.S. -, 128 S.Ct.
1581, 170
L.Ed.2d 490 (2008), which cast doubt on our previous approach for evaluating whether a particular crime is a crime of violence. On April 21, the Supreme Court granted certiorari to review our decision in
United States v. Chambers,
On November 21, 2008, we issued an order deferring our decision in this case until after the Supreme Court rendered its decision in
Chambers.
We also directed the parties to file supplemental memoranda within twenty days of the Supreme Court’s decision. The Supreme Court issued its decision in
Chambers v. United States,
- U.S. -,
The parties in this case have filed their supplemental memoranda; they agree that Mr. Hart’s sentence should be vacated and his case remanded for resentencing. 2
II
DISCUSSION
Mr. Hart submits that the district court erred in sentencing him as a career offender because it incorrectly treated his escape conviction as a “crime of violence” under U.S.S.G. § 4B1.2. He also contends that the district court failed to address adequately his argument that a below-guidelines sentence was apрropriate in light of his mental illness.
The Guidelines prescribe longer sentences for defendants whose criminal histories qualify them as “career offenders.” Section 4Bl.l(a) of the Guidelines defines the term “career offender” as follows:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4Bl.l(a). Section 4B1.2 defines the term “crime of violence”:
The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
*677 (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary оf a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2. Mr. Hart does not dispute that his offense of conviction in this case, bank robbery, is a felony and a crime of violence. Nor does he dispute that his prior bank robbery was a crime of violence. He takes issue, however, with the district court’s conclusion that his escape in 2005 was a crime of violence. Escape is not one of the crimes еnumerated in section 4B1.2; the question, therefore, is whether it falls within that section’s “residual clause,” which describes crimes that “otherwise involve! 1 conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2.
At the time Mr. Hart was sentenced, we consistently had concluded that all escapes, even non-violent ones such as walkaways and failures to report, were crimes of violence for purposes of career-offender sentencing.
3
We reached this conclusion primarily by reasoning that all escapes, even walkaways and failures to report, create a serious potential risk of injury when the escapee is re-apprehended. We ultimately came to doubt the wisdom of this conclusion, but, by that point, we believed that stare decisis required that we follow our precedent.
See Chambers,
The Supreme Court’s decision in
Begay v. United States,
— U.S. -,
In
United States v. Templeton,
Turning to the Wisconsin statute that the defendant had been convicted of violating, Wis. Stat. § 946.42, we concluded that it criminalized both categories of escape. 4 Because the record did not include the charging documents for the defendant’s state-law conviction, we remanded the case to allow the district court to determine whether the defendant had been charged and convicted of a walkaway escape or an escape from secure custody. If it was a walkaway escape, or if the answer was not apparent from the charging papers, we directed the district court not to classify the defendant’s escape as a crime of violence.
A few months after our decision in
Templeton,
the Supreme Court announced its decision in
Chambers v. United States,
— U.S. -,
The defendant in Chambers had been sentenced as a career offender based on a conviction for failing to report to a penal institution in violation of Illinois law. 5 The defendant argued that this conviction should not be considered a violent felony for sentencing purposes. The district court concluded that it was a violent felony and we affirmed on appeal. The Supreme Court granted certiorari and reversed. In its decision, the Court began its review of the ease with the Illinois statute, which it *679 interpreted as actually describing more than one distinct crime:
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, 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.
Unlike the lower courts, we believe that a failure to report (as described in the statutory provision’s third, fourth, fifth, and sixth phrases) is a separate crime, different from escape (the subject matter of the statute’s first and second phrases), and from the potentially less serious failure to abide by the terms of home confinement (the subject of the final phrase). 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. Moreover, the statute itself not only lists escape and failure to report separately (in its title and its body) but also places the behaviors in two different felony classes (Class Two and Class Three) of different degrees of seriousness.
At the same time, we believe the statutory phrases setting forth various kinds of failure to report (or to return) describe roughly similar forms of behavior. Each is characterized by a failure to present oneself for detention on a specified occasion. All amount to variations on a single theme. We consequently treat the statute for ACCA purposes as containing at least two separate crimes, namely escape from custody on the one hand, and a failure to report on the other. Failure to abide by home confinement terms-potentially the least serious of the offenses-is not at issue here.
Chambers,
After the Chambers decision, it appeared that a three-step inquiry was indi *680 cated for determining whether a conviction under a broadly-worded escape statute was a crime оf violence. First, we would look to the language of the statute to determine whether the statute was divisible — that is, whether it punished more than one category of crime. If it did, then we would determine whether any of the crimes within the scope of the statute was not a crime of violence as defined in the residual clause. If we determined that the statute punished one or more nonviolent crimes, we then would determine whether the crime of which the defendant was convicted fell into one of the non-violent categories.
This approach is now foreclosed to us, however. In
United States v. Woods,
With these considerations in mind, we turn to the federal escape statute under which Mr. Hart was convicted, 18 U.S.C. § 751(a). It reads, in relevant part, as follows:
Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or frоm 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 by any court, judge, or magistrate judge, or from the custody of an officer or employee of the United States pursuant to lawful arrest, 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....
18 U.S.C. § 751(a). The statute does not define the term “еscape,” but “courts and commentators are in general agreement that it means absenting oneself from custody without permission.”
United States v. Bailey, 444
U.S. 394, 407,
Thus, the federal escape statute covers a wide range of conduct, from violent jailbreaks to quiet walkaways to pаssive failures to report. It does not, however, enumerate explicitly the different ways in which the statute can be violated. Under
Woods,
therefore, it is an indivisible statute. Accordingly, the categorical approach requires us to determine whether escape under the federal statute, as a general matter, is “roughly similar, in kind as well as in degree of risk posed,” to the crimes of burglary, arson, extortion and use of explosives.
Begay,
But what is the “nature” of a crime that can be committed in so many different ways? In
Chambers,
the Supreme Court took notice of statistics compiled by the United States Sentencing Commission detailing the incidence of violence during escapes from federal custody. Those statistics revealed that prisoners who escaped from secure custody — what might be called a “jailbreak” — possessed dangerous weapons 31.3% of the time.
Chambers,
We mention these figures not because there is some statistical cutoff separating violent from non-violent crimes — we do not read Chambers to suggest any such thing — but simply to elucidate the difficulties inherent in attempting to ascribe a single violent or non-violent “nature” to crimes committed under such a broadly applicable statute. In this case, however, it is enough to note that, unlike the offenses enumerated in section 4B1.2 of the Guidelines, one can commit escape under the federal statute without putting oneself, or anyone else, in harm’s way. Burglary of a dwelling requires the perpetrator to enter the home of another person; if that persоn happens to be home, or to come home, a confrontation is likely. Arson requires the perpetrator to set fire to a building, creating a grave risk to anyone who might be in, or near, the building. By contrast, one can commit “escape” under the federal statute simply by staying home on the day one is supposed to surrender. Accordingly, we hold that a violation of 18 U.S.G. § 751(a), as a categorical matter, is not a crime of violence under the Sentencing Guidelines. Mr. Hart’s sentence therefore must be vacated and his case remanded for resentencing by the district court. 8
Conclusion
Accordingly, we vacate Mr. Hart’s sentence and remand his case to the district court for proceedings consistent with this opinion.
Vacated and Remanded.
Notes
.
See United States v. Chambers,
. In its supplemental memorandum to the court, the Government states:
[T]he government now concedes that in light of the Supreme Court’s decision in Chambers, walkaway escapes no longer qualify as crimes of violence under the Guidelines. The government, however, expressly preserves for future litigation the issue of whether other forms of escape should continue to be treated as crimes of violence and violent felonies, to wit, jailbreaks, unauthorized departures from secure custody or from the presence of a law enforcement officer, and other similar forms of criminal conduct that involve violations of fleeing-and-eluding statutes.
.
See Chambers,
. Section 946.42 of the Wisconsin Statutes criminalizes escape from custody. It defines "custody” to include both "actual custody” by the police or correctional personnel and "the construсtive custody of persons placed on supervised release ... [or] temporarily outside the institution whether for the purpose of work, school, medical care, a leave granted under s. 303.068, a temporary leave or furlough granted to a juvenile, or otherwise.” Wis. Stat. 946.42.
. The statute at issue in Chambers reads as follows:
§ 31-6. Escape; failure to report to a penal institution or to report for periodic imprisonment.
(a) A person convicted of a felony ... or charged with the conviction of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 felony; however, a person convicted of a felony ... who knowingly fails to report to a penal institution or to report for periodic imprisonment at any time or knowingly fails to return from furlough or from work and day release or who knowingly fails to abide by the terms of home confinement is guilty of a Class 3 felony.
720 ILCS 5/31-6.
.
See United States v. Woods,
. See
id.
. Because we are remanding Mr. Hart’s case for resentencing, we need not address his argument that his original sentence was unreasonable.