01-3568 U.S. v. Franklin

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“Franklin urges us to reject the reasoning of our sister circuits and conclude instead that escape does not involve a serious risk of physical injury to others because ‘such speculation is neither supported by the facts nor permitted by the law.’ Franklin may disagree with the other circuits’ assessment of the potential risk, but he offered no evidence, statistical or otherwise, to show that prison escapes present low risk of injury to others. Instead Franklin insists merely that escape convictions cannot be categorically classified as violent felonies because some prisoners escape without causing harm to others. In support Franklin relies on the example of the defendant in Hegwood v. State, 57 So. 2d 500 (Miss. 1952), a prisoner found to have escaped without using violence. But actual physical injury need not result from every escape for the ‘risk’ of physical injury to exist in all cases. Cf. United States v. Brown, 273 F.3d 747, 751 (7th Cir. 2001) (although actual injury not always present, risk of physical injury always involved in pandering by compulsion). The important issue for violent felony analysis is always the potential for injury, not whether injury actually occurred. See id.; Collins, 150 F.3d at 671; United States v. Tirrell, 120 F.3d 670, 681 (7th Cir. 1997); Fife, 81 F.3d at 64; Davis, 16 F.3d at 217.”

Affirmed.

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Bauer, J.