United States v. Guadian

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10234
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABEL GUADIAN,
Respondent-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:00-CR-97-1-C
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October 26, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Abel Guadian argues that the district court erred in
determining that his escape offense was a crime of violence under
U.S.S.G. § 4B1.1, the career offender sentencing guideline. He
argues that his indictment contained facts indicating that his
offense was not a crime of violence. He also argues that the
“categorical analysis” of the offense, that is consideration of
the indictment and statutory elements only, is not appropriate if
the district court is considering the instant offense and knows
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 01-10234
-2-
that the defendant’s underlying conduct did not involve a risk of
injury.
The conduct charged in the count of the indictment on which
the defendant is convicted is the only factor that may be
considered in determining whether the instant offense is a crime
of violence. United States v. Ruiz, 180 F.3d 675, 676 (5th Cir.
1999). Guadian’s indictment charged him with knowingly escaping
from the Salvation Army, an institution and facility in which he
was confined by direction of the Attorney General. The
indictment did not allege any facts reflecting Guadian’s
underlying conduct at the time of the escape or whether the
offense involved a potential risk of danger.
However, even assuming that Guadian’s initial escape was
relatively risk free, there was still a serious potential risk of
injury occurring when he was found and placed in custody by law
enforcement officers. It is the risk of injury associated with
the offense and not the nature of the facility from which an
escape is made that determines whether the offense is
characterized as a “crime of violence.” See id. at 676-77.
The district court did not err in characterizing Guadian’s
offense as a “crime of violence” within the meaning of U.S.S.G.
§ 4B1.1 and in making an adjustment of Guadian’s offense level
under that provision.
AFFIRMED.