*3 MELLOY, Circuit Judges. At sentencing, the district court deter- mined three of Sun Bear’s adult
RILEY, Judge. felony convictions were crimes of violence. (Sun Bear) (1) Marlon Dale Sun Bear was The three attempted offenses an were committing aiding and escape in County, Sheridan Ne- murder, (2) abetting degree braska; second a violation theft in 1997 of attempted §§ of 18 U.S.C. 1153 & 2. After Utah; Sun an City, vehicle in Cedar Kornmann, 1. The Honorable Charles B. Unit- South Dakota. Judge ed States District for the District of overriding case. to Sun Bear’s apply in 1995 burglary (3) attempted whether at appeal is County, presented on issue building Gordon commercial convictions, prior convictions two of Sun Bear’s on these least Based Nebraska. is a felony that Sun Bear crimes of violence. found court were the district offense increased his career оffender and Escape Attempted § 4B1.1. A. to 37. See U.S.S.G.
level
lev-
Bear’s offense
decreasing Sun
After
pled guilty
August
On
the dis-
responsibility,
acceptance
el
County,
Sheridan
to an
back
departed upward,
trict
running
involved
His offense
Nebraska.
on its determina-
based
level
were
who
enforcement officers
from law
*4
un-VI
history category
that criminal
tion
mischief.
him for criminal
investigating
Bear’s
of Sun
the
derstated
seriousness
pro-
government
the
only
The
document
then
history. The district
criminal
conviction was
evidence of this
duced as
the
Bear at the bottom
Sun
sentenced
against
filed
Sun
complaint
criminal
prison.
to 360 months in
range
guideline
complaint
County. The
in Sheridan
“employ force
that
Bear did
only
alleged
Sun
challenges
Sun Bear
appeal,
On
unlawfully
attempt
career
of the
and threat
application
court’s
detention,”
official
none
himself from
argues
He
remove
guideline.
offender
a
I Mis-
violation as
“Class
upon
relied
and listed the
three
convictions
of the
PSR,
to the
felony crime of
According
court is a
demeanor.”
by the district
and
to this offense
was
pled guilty
violence.
days
jail.
to 180
sentenced
II. DISCUSSION
Circuit,
have held
Eighth
In the
fac
a
court’s
review district
We
a
custody is
crime
every escape from
appli
for clear error
findings
tual
Nation,
See United States
of violence.
de
sentencing guidelines
cation
(8th
Cir.2001)’(following
Randolph Valenti
novo. United
circuits).
the ca
Under
from other
cases
Water,
no Kills in
of
completed
if a
guideline,
reer offender
Cir.2002).
was
sentencing argument
If a
violence,
an at
then
a crime of
fense is
below, we review
properly рresented
a
offense is also
commit that
tempt
to that
decision related
the district court’s
4B1.2,
§
violence. See U.S.S.G.
crime of
plain error. United States
argument not contend that
Bear does
cmt. n.l. Sun
Cir.1994).
Robinson,
was not a crime
attempted escape
his
sentencing guidelines,
Under
Instead,
at
argues
he
violence.
higher
of
receives
a “career offender”
charged with was
escаpe he was
tempted
who
other
than
are
fense level
defendants
under Nebraska law.
only misdemeanor
similarly
See U.S.S.G.
situated.
wise
law, escape itself
Nebraska
Under
offender
A
is a career
4B1.1.
defendant
it is Class IV
felony. Generally,
is a
(1)
at
years old
eighteen
was at least
if:
he
felony class under Ne
felony'
lowest
(2)
offense;
time of the instant
—the
§ 28-
law. See Neb.Rev.Stat.
braska
felony crimе of violence
is a
instant offense
912(4). However,
escapee
“em
when
offense;
substance
felony
or a
controlled
threat,
oth
force,
deadly weapon, or
ploys
(3)
at
least
convicted
he has been
instrumentality to effect the
dangerous
er
felony crime of violence
twice before
III
a Class
the crime becomes
escape,”
offense.
substance
fеlony
or a
controlled
28-912(5)(b).
felony. See Neb.Rev.Stat.
plainly
these elements
Id. The first two of
charged only
Sun Bear was
with
In
evidence,
the absence of such
Nebraska,
escape.
given
an at
government’s
proof,
burden of
it
tempt
generally
to commit
crime is
impossible
clas
to conclude that Sun Bear’s
sified
level below the actual
one
attempted escape
felony.
wаs a
In light of
See Neb.Rev.Stat.
attempted.
28-
complaint’s
ambiguous language, it is
201(4). Thus, if
charged
Sun Bear was
least
that Sun Bear was
attempting
with
III
escape,
Class
felony
charged with a misdemeanor as
awith
his attempted escape would be a
felony.
Class IV
if
Even
charged
was
felony.
only
If Sun Bear was charged
with
felony
attempted escape,
may
attempting
a Class IV felony escape,
pled
guilty to a misdemeanor under a
his attempted
would be
I plea agreement.
a Class
The sentence Sun Bear
misdemeanor.
actually
days
received—180
in prison—is
consistent with either a misdemeanor or a
place
best
to learn
awhat
de
felony.
the wholly
Given
inconclusive
fendant
with is ordinarily the
state of the record before the district
itself. See United court, Sun Bear’s conviction fоr attempted
charging document
*5
Smith,
(8th
617,
171 F.3d
620-21
escape cannot be treated as a felony for
Cir.1999).
case,
In this
though, the com purposes of the career offender enhance-
plaint
against
filed
Sun Bear
equivocal.
ment.
In charging that Sun
“employ
Bear did
The
surrounding
issues
this conviction
force and threat
an unlawful attempt to
were not
well
at Sun Bear’s
detention,”
remove himself from official
sentencing hearing. The attorneys who
the complaint suggests that Sun Bear at
(both
handled the case below
different law-
tempted to commit a Class III felony, and
yers than those
argued
who
the appeal)
attempt
his
was
therefore Class TV
did not inform the district court about
However,
felony.
the complaint goes on to
Nebraska’s criminal classification scheme.
identify Sun Bear’s crime as a
“Class
result,
aAs
the district court was led to
Misdemeanor,” which would
ap
have been
believe, erroneously, that Sun Bear’s at-
propriate if Sun Bear were
tempted escape was punishable as if it
attempting to commit a
felony
Class TV
were a completed offense.
the
Because
escape.
not presented
court was
with this
law,
crucial aspect of
ruling
Nebraska
gоvernment
The
had the burden
may be subject
only
to review
for plain
of
the facts to
proving
support a career
Robinson,
error. See
This offense injury injury or not have does undisputed an Utah Code 6^404 elements. essential of its others as one only whether determine need felony. We entailed However, evaluating thе risks of violence. a crime it was crime, also examine we must by a of vio- “crimes divide guidelines See of its commission. consequences likely An offense categories. two lence” into 880, 885 Griffith, v. States category if it “has as into first falls Cir.2002) (8th from a that theft (holding use, or threat- use, attempted element violence). And we is a crime of per- against force physical ened use consequences in thеse must examine 4B1.2(a)(l). U.S.S.G. of another.” son Charles, sense. See of common light category if into the second falls An offense (Barksdale, J., dissenting). at 315 arson, dwelling, aof it “is burglary explosives, or extortion, use of involves re Eighth precedents Our otherwise involves to deter approach sense this common flect is a crime given mining whether 4B1.2(a)(2). The U.S.S.G. another.” held example, For of violence. 4B1.2 lists several to section commentary building is burglary of commercial violence, as crimes offenses additional guidelines. crime of violence theft. U.S.S.G. list but does not Peltier, 276 F.3d See United However, as the com- 4B1.2, n.l. cmt. Cir.2002). reaching this offense is a mentary explains, unlisted conclusion, on United States we relied conduct with violence when crime of Cir.1993), Solomon, *6 been expressly has defendant which the 18 U.S.C. a case decided a seri- “by charged, 924(e)(2)(B), a bur held such which injury to risk of potential ous harm to of “imposes a serious risk glary Id. another.” or inter returning occupants, occupants, addressed have Although we never v. States See United passersby.” ested vio a crime of theft is whether vehicle Cir.1996). (8th Hascall, 902, F.3d 904 76 appeal have lence, courts of two other addition, “every es held we Circuit, Fifth the issue. Thе considered ‘walkaway’ escape,” a even so-called cape, that a banc, recently defen held sitting en Nation, F.3d 243 violence.” “is a of vehicle theft in for motor dant’s conviction “variety supercharged of 472. The at a crime of violence. Texas was not likely experi escapee emotions” Charles, 313-14 301 F.3d ence, being captured, including the fear of banc). Cir.2002) (еn (5th examining After every conclude that have led us to indictment, charged the defen which poten with “the keg” “a powder operating an and appropriating with dant (citing Id. “explode tial” to into violence.” consent, the owner’s without automobile Gosling, v. injury to of Fifth found Cir.1994)). potential no serious but property, a likeli of a vehicle Similarly, Theft Id. person. injury to another if not great, hood of confrontation aggra that an has held the Sixth Circuit prop burglary of commercial theft, greater, than as defined vehicle vated motor dangerous many it adds erty, vio law, a crime of may not be Colorado begins Crowell, The crime escape. 997 F.2d elements lence. United appropriates Cir.1993). enters when thief vehicle, a when is likely time to encoun theft meets the similar definition in section or rеturning passenger, pas ter a driver 4B1.2. officer,
serby,
police
any
may
or a
of whom
be intent on
the crime
stopping
prog
in
Attempted Burglary
C.
Solomon,
in
ress. As
observed
January
On
encounter between the thief and such a
pled guilty to the attempted
in
burglary
person carries
serious risk
violent
Nebraska,
County,
Gordon
in
violation
Solomon,
confrontation. See
section
28-507
the Nebraska Revised
589.
thе thief
away
Once
drives
with the
Statutes. There is no dispute that
this
vehicle,
unlawfully
possession
he is
aof
felony.
offense was a
Although the build
potentially deadly or dangerous weapon.
ing Sun Bear attempted to enter was a
Yates,
See United States
laundry
residence,
and not a
burglary of
(8th Cir.2002).
absconding
While he is
commercial property is a crime of violence
vehicle,
in the
probably
which he will
Peltier,
1006;
this Circuit.
276 F.3d at
unfamiliar,
may
be
pursued
thief
be
or
Hascall,
Circuit, these serious risks com III. CONCLUSION pel holding theft attempted Two of the three convictions the district theft of an vehicle is a crime of court used to enhance Sun Bear’s sen- guide under section 4B1.2 of the tence—the attempted theft of a lines. Utah, City, Cedar and the bur- Supreme Taylor Court’s decision in glary in County, Gordon Nebraska —are States, v. United 495 U.S. 110 S.Ct. *7 crimes of § under U.S.S.G. 4B1.2. (1990), L.Ed.2d 109 607 does not With these convictions in past, two his change analysis. our In Taylor, Court qualifies as a career offender under 924(e)(2)(B), interpreting § was 18 U.S.C. § Accordingly, judg- U.S.S.G. 4B1.1. language statute with almost identical to ment of the district court is affirmed. § U.S.S.G. 4B1.2. In doing, so the Court that
reasoned the term “burglary” 18 MELLOY, Circuit Judge, dissenting. 924(e) § U.S.C. does not include crimes agree I majority’s with the of treatment which breaking involve into an automobile. Sun Bear’s prior convictions for Taylor, attempted See 495 U.S. 110 S.Ct. escape attempted burglary of however, 2143. a com- Taylor, The decision in however, mercial I building. disagree, left the government argue “free to that any majority’s with the including conclusion offenses similar to that Sun offense— generic burglary prior attempted Bear’s conviction for count en- auto toward —should hаncement as one that theft is a of involves violence under ‘otherwise U.S.S.G. § presents conduct 4B1.2. I potential Accordingly, that serious would reverse the physical risk of injury to under district and find government another’ 924(e)(2)(B)(ii).” § Id. at 600 110 prove n. failed to Sun Bear should be sen- Today S.Ct. 2143. we decide that vehicle tenced aas career offender.
754 § 76-6- Ann. Code penalty. Utah defined of violence”
A “crime
412(l)(a)(ii).
court relied sole-
The district
§
as:
4B1.2
U.S.S.G.
when it determined
these statutes
ly on
federal or
(a)
under
offense
any
...
theft offense
attempted
that Sun Bear’s
by imprisonment
law, punishable
state
pur-
a crime of violence
qualified
year, that—
exceeding one
for a term
§ 4B1.1.
informa-
of U.S.S.G.
Other
poses
use, attempted
(1)
element the
has as an
indictment, the
tion,
charge
or
such as
force
physical
use,
use of
or threatened
provid-
not
report,
police
or
judgment,
another, or
of
against the
court.
ed to the district
arson,
(2)
dwelling,
or
of a
is burglary
court, the Gov-
or
extortion,
explosives,
support
of
In
involves use
agrees,
majority
presents
argues,
that
conduct
ernment
involves
otherwise
steal an
attempts to
physical
risk of
that when defendant
potential
a serious
physical
of
risk
operable motor
to another.
in the case
the same as
injury to others is
§
The Utah statute
4B1.2.
U.S.S.G.
burglary.
See
does not
was convicted
which Sun
Cir.2001)
Nation,
F.3d
force for a
physical
the use
require
po-
escapes present
all
(concluding that
Ann.
Code
Compare Utah
conviction.
that
injury to
such
risk
others
tential
statute)
(theft
with Utah
§§ 76-6-404
of vio-
as crimes
they
be classified
should
76-6-301(1)
statute,
(robbery
§Ann.
Code
Hasсall,
lence);
force). Thus, U.S.S.G.
requires
which
Cir.1996)
(finding
second
4B1.2(a)(l)
At issue is
implicated.
building
a commercial
burglary of
degree
theft of
attempted
whether Sun Bear’s
of the seri-
violence because
is a crime of
within U.S.S.G.
falls
operable vehicle
injury to
physical
risk of
potential
ous
4B1.2(a)(2)
in-
crime “otherwise
as a
others).
precedent,
on circuit
Based
serious
volv[ing]
provides
a rule which
majority adopts
anoth-
injury to
physical
risk of
potential
vehi-
motor
theft of
attempted
4B1.2,
n.l
cmt.
er.” See
U.S.S.G.
also
because
always a crime of violence
cle is
(“[Ojffenses
of vio-
included as ‘crimes
are
pres-
underlying the
the conduct
(i.e.,
forth
if
the conduct set
lence’
...
physical
ents
of which
charged)
the count
expressly
agree that our
I do not
injury to another.
convieted[,]
...
the defendant wаs
this conclusion
holdings mandate
a serious
court’s
a rule extends
believe such
another.”).
injury to
far.
and Hascall
too
reasoning in Nation
Utah,
an operable
theft of
*8
specu
a
in this
is
area
felony pun-
comparison
While
degree
a third
motor
is
vehicle
that
I do not believe
lative enterprise,
years imprisonment.
to five
by up
ishable
the same
presents
theft
76-6-404,
attempted auto
§§
76-6-
Ann.
Code
Utah
76-3-203(3).
as those offenses
to others
412(l)(a)(ii), 76-4-102,
The
crimes of
designated
previously
per-
that
provides
“[a]
Utah theft statute
Griffith,
violence. See
if he
or exercis-
son commits theft
obtains
Cir.2002) (conclud
301 F.3d
property
control over
es unauthorized
person
a
of theft from
that the
ing
him
deprive
purpose
another
to
with
con
“involves
felony” which
§
is a “violent
76-6-404.
Ann.
thereof.”
Code
Utah
risk that
a serious
presents
that
not a
duct
motor
Theft of an
injured”); Na
Rather,
may
physically
it
be
person
law.
separate crime
Utah
all es
tion,
(stating that
at 472
243 F.3d
is used to define
category
is a
capes should be classified as crimes of
unaccompanied
test drive
(charac
violence); Hascall,
Id. at 314. theft offense. the defendant’s
viewed although the defendant’s
It concluded injury prop- risk of presented in- suggestion
erty, there was “no defendant’s] conduct that [the
dictment poten- car
stealing the injury per- to another physical
tial risk of Thus, that the defen- it found Id.
son.” not a crime prior theft offense
dant’s finding, the Fifth so Id. In
of violence. following explanation:
Circuit offered that oth- by requiring
“Application Note present nature’ ‘by [their] must
er crimes
a ‘serious another,’ categorical inclusion calls for conduct. of crimes
or exclusion and/or not, by its theft does
Simple motor vehicle risk.” Id. present Fifth Circuit’s reason-
I with the agree hold that at-
ing in Charles and motor vehicle theft of an
tempted See also United of violence.
is not Crowell,
Cir.1993) aggravated motor (holding that law, theft, by Colorado as defined violence). not, se, a crime of per reasons, respectfully dissent.
For these HOOK, Appellant,
Linda J. IOWA, Appellee.
State
No. 01-3990. Appeals, Court of
Eighth Circuit. 13, 2002.
Submitted: June 22, 2002.
Filed: Oct.