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.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 5:00-CR-97-1-C -------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(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

.

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.