The defendants in these consolidated cases raise two questions under the United States Sentencing Guidelines. The first, which is a question of first impression in this circuit, is whether escape is a crime of violence under Guideline § 4B1.2(a)(2) — the guideline that defines the crimes that trigger career offender sentencing enhancements. The second question, upon which there is controlling precedent, is whether the district courts that sentenced two of the defendants erred by relying on the defendants’ arrest records in denying their motions for sentencing departures pursuant to Guideline § 4A1.3.
I
On February 28, 2000, Lawrence Thomas pled guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). On July 30, 2002, the United States District Court for the District of Columbia sentenced Thomas as a “career offender” pursuant to U.S. Sentencing Guidelines Manual § 4B1.1 [hereinafter U.S.S.G.]. 1 That provision subjects a defendant to a substantial sentencing enhancement if, among other things, he has two prior felony convictions for “crime[s] of violence” or “controlled substance offense[s],” as defined in § 4B1.2. U.S.S.G. § 4Bl.l(a); see id. cmt. n.l. In sentencing Thomas as a career offender, the district court determined that Thomas had previously been convicted of at least two qualifying crimes of violence. The court based that determination on Thomas’ 1977 armed robbery conviction, and on his three prior convictions for escape: a 1987 conviction for violating the District of Columbia’s former prison breach statute, D.C.Code § 22-2601 (1973); a 1988 conviction for violating the same statute; and a 1995 conviction for escape from a federal facility in violation of 18 U.S.C. § 751(a). These past convictions, the court concluded, triggered § 4B1.1, thus increasing Thomas’ guidelines offense level from 24 to 32 and placing Thomas in criminal history category VI. See Thomas Presentence Investigation Report (PSR) ¶¶ 19-20, 41. 2
*655 Thomas challenged this conclusion, arguing that, although his conviction for armеd robbery concededly qualified as a crime of violence under Guideline § 4B1.2(a), his previous escape convictions did not. Thomas also maintained that category VI over-represented the seriousness of his criminal history, and urged the district court to grant a downward departure from his guidelines sentencing range pursuant to Guideline § 4A1.3. The district court rejected Thomas’ arguments, holding that escape was a crime of violence, and that — in light of Thomas’ record of arrests and convictions — category VI did not overstate his criminal history. The court did, however, decrease Thomas’ offense level by 3 levels for accepting responsibility for his crime, see U.S.S.G. § 3El.l(a)-(b), and by another 8 levels because Thomas had provided substantial assistance to law enforcement after his arrest, id. § 5K1.1. Thomas Sentencing Hr’g Tr. at 46 (July 30, 2002). This resulted in an offense level of 21, which, combined with a criminal history category of VI, yielded a sentencing range of 77-96 months. U.S.S.G. ch. 5, pt. A (sentencing table). The district court sentenced Thomas to 80 months in prison.
On March 28, 2002, Dale Smith pled guilty to one count of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). He also accepted responsibility for 2.5 grams of cocaine powder as cоnduct relevant to that offense. At sentencing, the district court concluded — over the defendant’s objection — that Smith was a career offender based on two prior felony convictions: a 1993 conviction for possession with intent to distribute cocaine, and a 1997 conviction for escape from an institution in violation of the current D.C.Code escape statute, D.C.Code § 22-2601(a)(l) (2001). The career offender designation gave Smith an adjusted offense level of 29 (after a 3-level reduction for acceptance of responsibility), and a criminal history category VI. That combination mаndated a guideline sentencing range of 151-188 months’ imprisonment, as compared to what would have been a range of 33-41 months without the career • offender designation. Compare Smith PSR ¶¶ 28, 85, with id. ¶¶ 25, 27, 41, and U.S.S.G. ch. 5, pt. A. Like Thomas, Smith filed a motion for a downward departure pursuant to Guideline § 4A1.3, claiming that, even if he technically qualified as a “career offender” under § 4B1.1, that designation significantly overstated the seriousness of • his criminal history. The district court denied the motion in light of Smith’s history of arrests and convictions, and sentenced Smith to a 151-month term of incarceration.
Finally, on April 4, 2002, Andrew Cook, Jr. pled guilty to one count of a five-count indictment charging him with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Although that crime generally carries a base offense level of 14, that. level increases to 24 if the defendant has two prior felony convictions for “crime[s] of violence” or controlled, substance. offenses, as defined “in U.S.S.G. § 4B 1.2(a).” U.S.S.G. § 2K2.1(a), cmt. n.5; see id. § 2K2.1(a). Over Cook’s objection, the district court found that Cook had two prior convictions for crimes of violence: a 1970 armed robbery and a 1989 prison breach in violation of former D.C.Code § 22-2601 (1973). 3 After the district court subtracted 5 levels for substantial assistance to law enforcеment and 3 levels for acceptance of responsibility, Cook’s adjusted offense level was 16. See Cook PSR ¶¶ 16, 22, 23; Cook Sentencing Hr’g Tr. at 21 (Dec. 16, 2002). Combined with a crim *656 inal history category of V, the guideline sentencing range was 41-51 months. U.S.S.G. ch. 5, pt. A. The court sentenced Cook to 41 months in prison, the bottom of the range.
All three defendants filed timely notices of appeal. Although their crimes were unrelated, we granted the defendants’ unopposed motion to consolidate their appeals because they raised common questions of law. In Part II, we consider whether escape is proрerly regarded as a crime of violence under Guideline § 4B1.2(a). In Part III, we consider whether the district courts erred by relying on arrest records in denying Thomas’ and Smith’s motions for downward departures under § 4A1.3.
II
At sentencing, each defendant objected to the enhancement of his sentence based on the designation of a prior escape offense as a “crime of violence,” as that term is defined in Guideline § 4B1.2(a). Whether a particular crime constitutes a crime of violence under the Sentencing Guidelines is a question of law, which we review de novo.
See United States v. Hill,
Guideline § 4B 1.2(a) defines “crime of violence” as:
[A]ny 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.
U.S.S.G. § 4B1.2(a) (emphasis added). All of the circuits that have considered the question — numbering nine to date •— have concluded that the crime of escape falls within the ambit of § 4B1.2(a). 4 Today, we join them.
Defendants Thomas and Cook had prior convictions for prison breach in violation of former D.C.Code § 22-2601 (1973). That statute provided, in relevant part: “Any person committed to a penal institution of *657 the District of Columbia who escapes or attempts to escape therefrom, or from the custody of an officer thereof ..., shall be guilty of an offense.... ” Defendant Smith had a prior conviction for violating the District of Columbia’s current “escape from an institution” provision, which states: “No person shall escape or attempt to escape from: (1) Any penal institution or facility in which that person is confined pursuant to an order issued by a court, judge, or commissioner of the District of Columbia.” D.C.Code § 22-2601(a)(D (2001). 5 Finally, in addition to his D.C.Code violation, Thomas had also been convicted of violating the federal escape statute, which makes it a crime to “es-capen or attempt[] 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.... ” 18 U.S.C. § 751(a).
We begin with common ground. First, both the defendants and the government agree that, in determining whether the crime of escape comes within the scope of Guideline § 4B1.2(a), wе must utilize a categorical approach.
See Hill,
The parties also agree that nеither the D.C.Code provisions, nor the federal escape statute, fall within the first subsection of § 4B1.2(a). That is, the offenses defined by those statutes do not have “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)(l) (emphasis added). Nor is escape one of the four crimes of violence specifically enumerated in § 4B1.2(a)(2): burglary, arson, extortion, or the use of explosives. Thus, the only remaining question is whether escape falls within the “otherwise” clause of § 4B1.2(a)(2): a crime that “otherwise involves conduct that presents a serious *658 potential risk of physical injury to another.” Id. § 4331.2(a)(2).
The defendants contend that the offenses for which they were convicted do not fall within the “otherwise” clause because they' can be committed without force or violence. As they correctly point out, the statutes at issue have been construed expansively.’ Knowingly absenting oneself from custody without permission is sufficient to constitute a violation.
8
Consequently, although both -the federal and D.C. statutes prohibit escape from the lawful custody of an officer,
see
18 U.S.C. § 751(a);: D.C.Code § 22-2601(a)(2), walking away from a halfway house — or simply failing to return on time — violates the statutes as well.
9
And, as defendants further note, in
United States v. (Toumani) Thomas,
we expressed “reluctan[cej” ábout extending § 4B 1.2(a) to an offense that could include a “walkaway” escape, stating that “[ajrguably, the approach taken by the other circuits proves too much.”
In Thomas, however, we made clear that our expression of concern was merely dicta, because there ‘ the defendant’s prior conviction was specifically for “escape from an officer” under D.C.Code § 22-2601(a)(2), a crime that plainly involves a serious potential risk of injury. We thus did not have to decide whether a conviction for the offense of “escape from an institution,” or for a genеral offense that encompasses both forms of escape, is likewise covered. 'Now that the issue is squarely before us, we conclude that our sister circuits, which regard such crimes (including walkaways) as violent offenses under § 4B1.2(a), are right. See cases cited supra note 4.
The fact that escape can be committed by a non-violent walkaway does not shield it from designation as a crime of violence for two reasons. First, the fact that escape can take place without force merely confirms the point upon which all parties have agreed: that escape does not have the use оr threat of force “as an element,” and thus does not fall within § 4B1.2(a)(l). Subsection (2) of 4B1.2(a), however, is an independent ground for designating an offense as violent, and hence it must cover crimes that do not have force as an element. And indeed it does: subsection (2) adds to the list of violent offenses those in which there is only a “serious potential risk” of injury.
Second, the fact that the defendants can hypothesize circumstances in which escape can be' committed without either force or risk of injury cannot be dispositive under § 4Bl:2(a), as such an analytical approach would eviscerаte the notion of a “categorical” definition.
See United States v. Vigil,
With these preliminary points clarified, we now turn directly to that question. To answer it, we first consider the meaning of the phrase “serious potential risk.” A “risk,” of course, is merely “the possibility” of loss or injury. MeRRIAm Webster’s Collegiate DiCtionary 1011 (10th ed.1996). And while the addition of the adjective “serious” would seem to increase the required degree of probability, the interjection of the second adjective, “potential,” appears to reduce it again. 12 In short, a textual analysis of the guideline’s key phrase, by itself, sheds only a little light on our question.
The context in which the phrase “serious potential risk” resides, however, provides substantially more illumination.
13
The phrase is part of an “otherwise” clause that begins with a list of four offensеs that the guideline regards as unquestionably crimes of violence: burglary of a dwelling, arson, extortion, and the use of explosives. And when a statute or regulation begins with a list of specific categories and ends with a general catch-all, the interpretative canons of
ejusdem generis
(“of the same kind or class”) and
noscitur a sociis
(a word is “known by its associates”) counsel that the latter be read in light of the former.
See Washington State Dep’t of Soc. & Health Services v. Guardianship Estate of Keffeler,
Now we have something more to work with, and to apply to the issues raised by the defendants. It is true, as the defendants contend, that a person
can
escape without force or serious risk of injury to anyone by simply walking away from an unguarded halfway house; he may also peacefully end his offense by waiting until the coast is clear and returning of his own volition. But the same is true of the individual who commits burglary of a dwelling: he can wait until the residents are on vacation and enter the house unarmed. The same is also true of the arsonist, who, with care, can avoid serious risk of physical injury to another by limiting his fires to
*660
isolated, abandoned buildings.
See Vigil,
The issue, then, is whether the offense of escape — as a category — carries appreciably less risk of injury to another than do the listed crimes.
Cf. DeLuca,
Evaluated from that perspective, we have no basis for concluding that the risk of physiсal injury during an escape is any less than during a burglary, arson, or extortion. Like burglary of a dwelling or arson, a defendant may accomplish an escape in the safest possible way. But just as the cautious burglar may be startled by the unexpected return of the homeowner, or the careful arsonist surprised by a fire that spreads out of control, the stealthy escapee may suddenly be confronted by police officers sent to apprehend him, leading to injury to the officers or bystanders. As the Second Circuit has observed:
An inmate who escapes by peacefully walking away ... will (if he can) be inсonspicuous and discreet, and will (if he can) avoid confrontation and force. But escape invites pursuit; and the pursuit, confrontation, and recapture of the escapee entail serious risks of physical injury to law enforcement officers and the public.
United States v. Jackson,
Ill
Defendants Thomas and Smith contend that their respective district judges also erred in denying their requests for downward departures pursuant to Guideline § 4A1.3. That provision permits the *661 court to depart from the otherwise applicable guideline sentencing range if the defendant’s criminal history category “significantly over-represents the seriousness of a defendant’s criminal history or the likelihood that the defendant will commit further crimes.” U.S.S.G. § 4A1.3, p.s. The defendants contend that their sentencing judges erred by relying on their arrest records in determining that their criminal history categories did not over-represent the seriousness of their criminal histories.
Although we have no authority to review a “court’s discretionary decision that the particular circumstances of a given case do not warrant a departure,”
United States v. Pinnick,
In
United States v. Joaquin,
this circuit held that a district court errs, and that such an error is “plain,” if the court relies on a defendant’s prior arrest record itself (that is, on the fact of an arrest, without a conviction or other evidence that the alleged criminal conduct actually took place) in denying a motion to depart under the 2000 version of Guideline § 4A1.3.
See
The government’s effort to distinguish
Joaquin
misapprehends that case’s holding. In
Joaquin,
the defendant’s sentence was remanded, not because the district court relied on an arrest record alone, but “because, contrary to section 4A1.3’s plain language, the district court based its decision
in part
on appellant’s ‘prior arrest record itself.’ ”
That conclusion does not, however, end our examination. Before we can corrеct a plain error, we still must determine whether that error satisfies the final two prongs of the Rule 52(b) standard: (3) that it “ ‘affect[s] substantial lights,’ ” i.e., that it is prejudicial; and (4) that it “ ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ”
Johnson,
A comparison of the facts in Joaquin with those in defendant Smith’s case again makes the former controlling. In Joaquin, the court found that, because Joaquin’s record contained 11 arrests without convictions — all within 15 years of the instant offense — there was a reasonable likelihood that the district court would have reached a different decision regarding the seriousness of Joaquin’s record absent consideration of those arrests. See id. at 1289, 1294. The court further found that such an error seriously affected the fairness and integrity of judicial proceedings. Id. at 1294. Defendant Smith’s record — which likewise contains 11 arrests without convictions within 15 yеars of the instant offense — is indistinguishable. 16 Accordingly, because Joaquin held that such a record satisfied the final two prongs of the plain error standard, we can reach no other conclusion here. We therefore remand Smith’s sentence to the district court. 17 On remand, of course, the district court is free to decline to depart again, as *663 long as it does so without reference to the defendant’s arrest record.
Defendant Thomas’ sentencing presents a different ease. By contrast to Joaquin’s 11 relatively recent arrests without convictions, Thomas had only two within the previous 15 years. Thomas PSR ¶¶ 49, 50. Although Thomas also had older arrests that did not lead to convictions, all of those occurred more than 20 years before the instant offense and all but three led to unfavorable dispositions for the defendant. Id. ¶¶42^18. 18 Moreover, the number of times Thomas was arrested without convictions was dwarfed by his 12 prior adult arrests with convictions •—• as well as two additional probation revocations. Id. ¶¶ 26-37. On that record, we think it highly unlikely that it was Thomas’ few and mostly stale arrests — rather than the sheer number of his convictions — that led the district court to conclude that the defendant’s criminal history category appropriately reflected thе seriousness of his criminal history. Thomas has thus failed to demonstrate a reasonable likelihood that the court’s erroneous reference to his arrests affected the sentence that it imposed, and hence there is no reason for a remand.
Ill
For the foregoing reasons, we affirm the sentences imposed on Thomas and Cook, and remand Smith’s sentence for further proceedings consistent with this opinion.
So ordered.
Notes
. Thomas was sentenced under the 2000 edition of the Manual; Smith was sentenced under the 2001 edition; and Cook was sentenced under the 2002 edition. The three editions were identical in all respects relevant here.
. Guideline § 4B 1.1(b) mandates a criminal history category of VI for all career offenders. U.S.S.G. § 4Bl.l(b). It also mandates an offense level of (at least) 32 when the instant offense of conviction carries a statutory maximum of between 20 and 25 years' imprisonment. Id.
. Cook also moved for a downward departure under Guideline § 4A1.3, but unlike defendants Thomas and Smith, he does not appeal the district court's denial of that motion.
.
See United States v. Jackson,
. Subsection (a)(2) of the same stаtute bars escape from "(2) The lawful custody of an officer or employee of the District of Columbia or of the United States.” D.C.Code § 22-2601(a)(2).
.
See also, e.g., United States v. Pierce,
.In some circumstances, a court may also examine jury instructions.
See Hill,
.
See United States v. Bailey,
.
See United States v. Vaughn,
. See Guideline § 4B1.2, cmt. n.l (stating that the term " ‘[c]rime of violence’ includes murder,” as well as “attempting to commit” such an offense).
. For the same reason, we cannot accept the defendants’ contention that "an offense is not categoricаlly a crime of violence unless every such offense is.” Reply Br. at 6.
. See Merriam Webster’s at 912 (defining "potential” as "existing in possibility,” or as "something that can develop or become actual” — as in "a [potential] for violence”).
.
Cf. Davis v. Michigan Dep’t of Treasury,
. In 2000, the text of § 4A1.3 permitted a departure if “reliable information,” including “prior similar adult criminal conduct not resulting in a criminal conviction,” indicated “that the criminal history category [did] not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant [would] commit other crimes.” U.S.S.G. § 4A1.3, p.s. (2000). But the text also stated that "a prior arrest record itself shall not be considered under § 4A1.3.” Id. Joaquin read the latter as barring consideration of an arrest record in deciding a motion for either a downward or an upward departure. That language was unchanged both at the time Smith and Thomas committed their offenses and at the time they were sentenced, and it therefore applies to their cases. See U.S.S.G. § lBl.ll(a)-(b), p.s. We note, however, that the Sentencing Commission has rеcently amended § 4A1.3. Although it now expressly prohibits consideration of a prior arrest record "for purposes of an upward departure,” U.S.S.G. § 4A1.3(a)(3) (2003) (emphasis added), it does not mention such a prohibition with respect to denying a downward departure, id. § 4A1.3(b)(2).
.See also Smith Sentencing Hr’g Tr. at 17 (May 1, 2003) (statement of the court) (noting that, "in about 14 years and 10 months, Mr. Smith has raked up approximately 20 arrests, eight convictions, five post-conviction violations and two crimes committed while serving sentences,” and that "if one looks to these factors ... Mr. Smith’s prospects for recidivism ... are high and the criminal history category reflects prоperly Mr. Smith's criminal history as realistically portrayed”); Thomas Presentencing Hr'g Tr. at 37-38 (July 12, 2002) (statement of the court) ("reviewing very carefully the chronology of his arrests, incarcerations and releases on parole” and rejecting "the argument that the criminal history category overrepresents the likelihood of recidivism”).
.
See
Smith PSR ¶¶ 43-53. The two defendants' records of prior arrests
with
convictions are also not materially different: Joaquin had 6; Smith had 8.
See Joaquin,
. See 18 U.S.C. § 3742(f)(1) ("If the court of appeals determines that the sentence was imposed ... ás a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate.”).
. A number of Thomas’ older arrests took place while he was in the Army, and, while they did not lead to criminal convictions, they did lead to Thomas’ undesirable discharge. Thomas PSR ¶¶ 42, 43, 45. Although
Joaquin
bars the consideration of a " 'prior arrest record itself under § 4A1.3,' without supporting evidence indicating that [the defendant] had in fact engaged in prior criminal conduct not resulting in a conviction,”
Joaquin,