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11,582,807 | 11,781,059 | 1999-08-16 | United States Court of Appeals for the Sixth Circuit | United States v. Houston | United States v. Houston, 187 F.3d 593 (1999) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involve! ] conduct that presents a serious potential risk of physical injury to another, | If Houston’s escape is to be deemed a violent felony, it must “ |
11,582,807 | 11,781,059 | 1999-08-16 | United States Court of Appeals for the Sixth Circuit | United States v. Houston | United States v. Houston, 187 F.3d 593 (1999) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involves conduct that presents a serious potential risk of physical injury to another. | If Houston’s escape is to be deemed a violent felony, it must “otherwise involve! ] conduct that presents a serious potential risk of physical injury to another,” as it fits under none of the other possible categories of crimes in the ACCA. The Fourth and Tenth Circuits are the only two circuits which have ruled on the issue, and both held that escape is a “violent felony” for purposes of the ACCA because it “ |
11,582,807 | 11,781,059 | 1999-08-16 | United States Court of Appeals for the Sixth Circuit | United States v. Houston | United States v. Houston, 187 F.3d 593 (1999) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involves conduct that presents a serious potential risk of physical injury to another. | Id. at 323 (finding that although the Ohio kidnapping statute encompassed conduct which did not necessarily present a risk of injury to others, kidnapping was still a type of offense where the risk of physical injury to the victim is invariably present). Kaplansky also emphasized the import of the word “potential” in § 924(e)(2)(B)(ii).
United States v. Harris, 165 F.3d 1062, 1067 (6th Cir.1999), considered a statute making it a felony for:
any person confined in a county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction of a criminal offense constituting a felony to escape or attempt to escape therefrom.
Harris held that a conviction for escape under the statute was a “crime of violence” for purposes of “career offender” sentencing under USSG § 4B1.1. See Harris, 165 F.3d at 1067-68. The portion of the § 4B1.2 definition used in Harris includes as a crime of violence one that “ |
11,665,092 | 11,781,059 | 1999-07-13 | United States Court of Appeals for the Fifth Circuit | United States v. Ruiz | United States v. Ruiz, 180 F.3d 675 (1999) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | presenting] a serious potential risk of physical injury to another | ” We rejected an identical argument in United States v. Shaw. Ruiz does not attempt to distinguish Shaw, rather, he urges that Shaw was wrongly decided. Even if we accepted this assertion, which we do not, this panel may not overrule or ignore a prior panel decision.
Next, Ruiz contends that the trial court erred in concluding that his escape constitutes a “crime of violence” “ |
11,123,976 | 11,781,059 | 2001-03-16 | United States Court of Appeals for the Eighth Circuit | United States v. Nation | United States v. Nation, 243 F.3d 467 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another. | The court sentenced Nation pursuant to U.S.S.G. § 2K1.3, which provides for a base level of 20 “if the defendant had one prior felony conviction of either a crime of violence or a controlled substance offense,” U.S.S.G. § 2K1.3(a)(2), and a base offense level of 24 “if the defendant has had at least two prior felony convictions of either a crime of violence or a controlled substance offense,” U.S.S.G. § 2K1.3(a)(1). In 1995, Nation was convicted in Arkansas state court of second degree escape. After examining the circumstances of the escape and determining that the only individual at risk was Nation himself, the district court concluded that it was not a crime of violence. Accordingly, the court assigned Nation a base offense level of 20, resulting in a sentencing range of 63 to 78 months’ imprisonment. The United States contends that under the guidelines escape is, categorically, a crime of violence and that Nation should have been assigned a base offense level of 24.
We review the district court’s interpretation and construction of the sentencing guidelines de novo. United States v. Snoddy, 139 F.3d 1224, 1227 (8th Cir.1998). The guidelines define a “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 the 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). The only question here is whether the offense “ |
645,569 | 11,781,059 | 2004-03-16 | United States Court of Appeals for the District of Columbia Circuit | United States v. Thomas | United States v. Thomas, 361 F.3d 653 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | as an element the use, attempted use, or threatened use of physical force against the person of another. | Hill, 131 F.3d at 1062 (quoting Mathis, 963 F.2d at 408). In this case, because Smith’s and Cook’s escape indictments are devoid of detail, and Thomas’ indictments were never proffered to the court, the parties agree that we should look no further than the statutory language. See Taylor, 495 U.S. at 600, 110 S.Ct. at 2159; United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States v. Pierce, 278 F.3d 282, 287 (4th Cir.2002). That is, the offenses defined by those statutes do not have “ |
645,569 | 11,781,059 | 2004-03-16 | United States Court of Appeals for the District of Columbia Circuit | United States v. Thomas | United States v. Thomas, 361 F.3d 653 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involves conduct that presents a serious potential risk of physical injury to another. | U.S.S.G. § 4B1.2(a)(l) (emphasis added). Thus, the only remaining question is whether escape falls within the “otherwise” clause of § 4B1.2(a)(2): a crime that “ |
645,569 | 11,781,059 | 2004-03-16 | United States Court of Appeals for the District of Columbia Circuit | United States v. Thomas | United States v. Thomas, 361 F.3d 653 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | a serious potential risk of physical injury to another, | ”) (emphasis added). Many concededly violent offenses can be hypothesized to take place in a manner that eliminates risk of injury: attempted murder, for example, becomes riskless if we assume that the sniper’s gun has no bullets. In so doing, they circumvent the definitional question posed by the guideline: whether, as a category (i.e., “by its nature”), escape involves conduct that presents “ |
9,374,329 | 11,781,059 | 2004-07-12 | United States Court of Appeals for the Sixth Circuit | United States v. Herrera | United States v. Herrera, 375 F.3d 399 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | serious potential risk of physical injury to another. | ”). Rather, their argument centers on the third method for identifying a crime of violence — whether the offense involves a “ |
9,374,329 | 11,781,059 | 2004-07-12 | United States Court of Appeals for the Sixth Circuit | United States v. Herrera | United States v. Herrera, 375 F.3d 399 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | presents a serious potential risk of physical injury to another, | ” U.S.S.G. 4B1.2(a)(2).
The elements of Michigan Compiled Laws § 750.479b(2), disarming a police officer, are:
(a) The individual knows or has reason to believe the person from whom the firearm is taken is a peace officer or a corrections officer.
(b) The peace officer or corrections officer is performing his or her duties as a peace officer or a corrections officer.
(c) The individual takes the firearm without consent of the peace officer or corrections officer.
(d) The peace officer or corrections officer is authorized by his or her employer
to carry the firearm in the line of duty.
Defendant first focuses on the word “serious” in the phrase “ |
151,802 | 11,781,059 | 2001-03-29 | United States Court of Appeals for the Sixth Circuit | United States v. Watts | United States v. Watts, 7 F. App'x 526 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | (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. |
The supervising probation officer deemed both of Watts’s prior felony convictions to be “crime[s] of violence” for purposes of § 4B1.1, the career offender provision. With the application of the career offender provision, Watts’s effective guideline imprisonment range jumped from 220-245 months to 308-355 months. The district court sentenced Watts to a total term of 308 months. Watts’s appeal to this court followed.
II. ANALYSIS
A. Standard of Review
The district court’s factual findings for purposes of sentencing under the Guidelines are reviewed by this court for clear error. United States v. Jones, 159 F.3d 969, 980 (6th Cir.1998). Issues involving the interpretation of Guidelines provisions, however, are legal questions which this court reviews de novo. Id.
B. Is Escape a Crime of Violence?
The sole issue in Watts’s appeal is whether an escape from state-ordered confinement should be treated as a felony that is a crime of violence for purposes of § 4B1.1. As this circuit explained in Harris, a defendant must meet the following three requirements to be considered a career offender under § 4B1.1:
[T]he defendant must have been at least 18 years old when he committed the offense for which he is to be sentenced, that offense must have been a felony constituting either a “crime of violence” or a “controlled substance offense,” and the defendant must have had at least two prior felony convictions falling in one or the other of those categories.
Harris, 165 F.3d at 1067. Watts does not dispute that he has satisfied the first two criteria of the career offender provision, nor does he deny that the first of his two previous felonies was a “crime of violence,” as defined by § 4B1.2.
Under § 4B1.2, a felony conviction qualifies as a crime of violence if it “ |
151,802 | 11,781,059 | 2001-03-29 | United States Court of Appeals for the Sixth Circuit | United States v. Watts | United States v. Watts, 7 F. App'x 526 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involves conduct that presents a serious potential risk of physical injury to another. | This case hinges upon whether an escape from confinement should be considered a crime that “ |
151,802 | 11,781,059 | 2001-03-29 | United States Court of Appeals for the Sixth Circuit | United States v. Watts | United States v. Watts, 7 F. App'x 526 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | that presents a serious potential risk of physical injury to another. | ”
Watts argues that, because his escape from confinement was not violent in that he simply walked away from the Honor Camp, his escape should not be considered a crime “ |
160,551 | 11,781,059 | 2001-02-08 | United States Court of Appeals for the Sixth Circuit | United States v. Jackson | United States v. Jackson, 4 F. App'x 287 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | has as an element the use, attempted use, or threatened use of physical force against the person of another, | He was later apprehended without incident; charged with felony escape, in violation of California Code § 4532(b)(1); and sentenced to three years’ imprisonment, to be served concurrently with the manslaughter sentence.
It is undisputed that Defendant’s manslaughter conviction is a “crime of violence” within the meaning of U.S.S.G. § 4B1.2. Before us on appeal is whether the district court properly concluded that Defendant’s felony escape conviction is also a crime of violence. We find that the crime of escape is a qualifying conviction, and that Defendant’s conviction in the instant case — his third conviction for a crime of violence or a controlled substance offense — properly triggered application of U.S.S.G. § 4B1.1, the career offender provision of the Guidelines. The district court’s sentence of 202 months (reflecting a 60-month downward departure) was therefore appropriate.
II. DISCUSSION
We review de novo both a district court’s determination that a defendant is a career offender within the meaning of U.S.S.G. § 4B1.1, see United States v. Dolt, 27 F.3d 235, 237 (6th Cir.1994), and its determination that an offense is a “crime of violence,” as defined in U.S.S.G. § 4B1.2, see United States v. Arnold, 58 F.3d 1117, 1120 (6th Cir.1995). A defendant is a career offender if: (1) the defendant was at least eighteen years old at the time he committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense. A prior felony conviction qualifies as a crime of violence if it is one of the offenses specifically enumerated in § 4B1.2; or it “ |
160,551 | 11,781,059 | 2001-02-08 | United States Court of Appeals for the Sixth Circuit | United States v. Jackson | United States v. Jackson, 4 F. App'x 287 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | is burglary of a dwelling ... or otherwise involves conduct that presents a serious potential risk of physical injury to another, | A prior felony conviction qualifies as a crime of violence if it is one of the offenses specifically enumerated in § 4B1.2; or it “has 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); or it “is burglary of a dwelling... or otherwise involves conduct that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2). |
160,551 | 11,781,059 | 2001-02-08 | United States Court of Appeals for the Sixth Circuit | United States v. Jackson | United States v. Jackson, 4 F. App'x 287 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | presents a serious potential risk of physical injury. |
The crime of escape falls within the third subset of offenses, as it “ |
9,214,427 | 11,781,059 | 2004-07-29 | United States Court of Appeals for the Sixth Circuit | United States v. Martin | United States v. Martin, 378 F.3d 578 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | as an element the use, attempted use, or threatened use of physical force against the person of another |
The accompanying application note expands the list of enumerated offenses to include “murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling” as “crimes of violence,” and reiterates that other offenses also count as “crimes of violence” if
(A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. Because neither the Guideline nor its application note names fleeing and eluding as a crime of violence, that offense must either (1) have “ |
9,214,427 | 11,781,059 | 2004-07-29 | United States Court of Appeals for the Sixth Circuit | United States v. Martin | United States v. Martin, 378 F.3d 578 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | present[ ] a serious potential risk of physical injury to another | Because neither the Guideline nor its application note names fleeing and eluding as a crime of violence, that offense must either (1) have “as an element the use, attempted use, or threatened use of physical force against the person of another” or (2) “ |
9,214,427 | 11,781,059 | 2004-07-29 | United States Court of Appeals for the Sixth Circuit | United States v. Martin | United States v. Martin, 378 F.3d 578 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | the use, attempted use, or threatened use of physical force |
In deciding whether an offense amounts to a “crime of violence” under these two tests, we have applied a “categorical approach,” which is to say we have looked at “the fact of conviction and the statutory definition of the predicate offense,” not the “underlying facts regarding the offense,” to determine whether either test is satisfied.3d 1117, 1121 (6th Cir.1995); see United States v. Champion, 248 F.3d 502, 505 (6th Cir.2001) (applying categorical approach in determining whether an offense has as an element “ |
9,214,427 | 11,781,059 | 2004-07-29 | United States Court of Appeals for the Sixth Circuit | United States v. Martin | United States v. Martin, 378 F.3d 578 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | serious potential risk of physical injury | 3d 1117, 1121 (6th Cir.1995); see United States v. Champion, 248 F.3d 502, 505 (6th Cir.2001) (applying categorical approach in determining whether an offense has as an element “the use, attempted use, or threatened use of physical force”); United States v. Payne, 163 F.3d 371, 374 (6th Cir.1998) (applying categorical approach in determining whether an offense entails “ |
9,214,427 | 11,781,059 | 2004-07-29 | United States Court of Appeals for the Sixth Circuit | United States v. Martin | United States v. Martin, 378 F.3d 578 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | the use, attempted use, or threatened use of physical force against the person of another, | A person commits the offense in the third-degree if the violation “results in a collision or accident,” if the violation “occurred in an area where the speed limit is 35 miles an hour or less” or if the defendant has a previous conviction for actual or attempted fourth-degree fleeing and eluding or similar misconduct. Id. § 750.479a(3). The charging document— which is described in the presentence report (in language to which the defendant did not object) — says that Martin committed the third-degree offense by causing “a collision or an accident” or by failing to stop while in a 35-mile-per-hour zone, or both.
Because fleeing and eluding does not have as an element “ |
9,214,427 | 11,781,059 | 2004-07-29 | United States Court of Appeals for the Sixth Circuit | United States v. Martin | United States v. Martin, 378 F.3d 578 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involves conduct that presents a serious potential risk of physical injury to another. |
Because fleeing and eluding does not have as an element “the use, attempted use, or threatened use of physical force against the person of another,” the pertinent question is whether the offense “ |
9,214,427 | 11,781,059 | 2004-07-29 | United States Court of Appeals for the Sixth Circuit | United States v. Martin | United States v. Martin, 378 F.3d 578 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | inherently presents the serious potential risk of physical injury | That Martin committed this offense either by causing a “collision or accident,” Mich. Comp. Laws § 750.479a(3)(a), or by fleeing in a 35-mile-per-hour zone (presumably a residential or school area), id. § 750.479a(3)(b), confirms the palpable risk of physical injury to others caused by flight under the statute.
At the same time that flight itself creates a risk of injury to others, so too does the suspect’s eventual apprehension. By making a deliberate choice to disobey a police officer, the motorist provokes an inevitable, escalated confrontation with the officer. In this regard, fleeing and eluding resembles escape, see Howze, 343 F.3d at 921-22; United States v. James, 337 F.3d 387, 391 n. 4 (4th Cir.2003), which nine courts of appeals (including this one) have agreed constitutes a “crime of violence” under the Guidelines, regardless of whether the defendant forcefully escaped from a maximum security prison or walked away from a halfway house. See United States v. Thomas, 361 F.3d 653, 656 & n. 4 (D.C.Cir.2004) (citing cases); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999). Such a confrontation “ |
9,214,427 | 11,781,059 | 2004-07-29 | United States Court of Appeals for the Sixth Circuit | United States v. Martin | United States v. Martin, 378 F.3d 578 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | serious potential risk of physical injury to another, | United States v. Dickerson, 77 F.3d 774, 777 (4th Cir.1996).
Indeed, fleeing and eluding in most settings will pose a greater risk of injury than escape. Howze, 343 F.3d at 922. While an escape and fleeing alike involve the potential for dangerous confrontation between the suspect and police officers, not all escapes involve flight and the inherent third-party risks that such conduct entails. Id. Because fleeing and eluding an officer while in a car generally will present serious potential risks of physical injury to third parties- — the only relevant inquiry— it necessarily qualifies as a “crime of violence” under the Guidelines. See Howze, 343 F.3d at 921-22 (determining that the offense of fleeing from an officer under Wisconsin law presents a “ |
9,214,427 | 11,781,059 | 2004-07-29 | United States Court of Appeals for the Sixth Circuit | United States v. Martin | United States v. Martin, 378 F.3d 578 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | presents a serious potential risk of physical injury to another | While Howze and James concluded that fleeing from an officer in a car “ |
9,214,427 | 11,781,059 | 2004-07-29 | United States Court of Appeals for the Sixth Circuit | United States v. Martin | United States v. Martin, 378 F.3d 578 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | serious potential risk of physical injury to another | The relevant language of the two provisions — “ |
9,214,427 | 11,781,059 | 2004-07-29 | United States Court of Appeals for the Sixth Circuit | United States v. Martin | United States v. Martin, 378 F.3d 578 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | serious potential risk of physical injury | The Guideline defines offenses presenting a “ |
9,214,427 | 11,781,059 | 2004-07-29 | United States Court of Appeals for the Sixth Circuit | United States v. Martin | United States v. Martin, 378 F.3d 578 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | serious potential risk of physical injury | To require crimes of violence in all fact patterns to lead to a violent or harmful end not only would ignore our categorical approach to this inquiry, but it also would read the “ |
9,269,638 | 11,781,059 | 2004-04-09 | United States Court of Appeals for the First Circuit | United States v. Winn | United States v. Winn, 364 F.3d 7 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | as an element the use, attempted use, or threatened use of physical force against the person of another, | Id. at 23 n. 5.
The New Hampshire escape statute under which Winn was charged provides as follows:
I. A person is guilty of an offense if he escapes from official custody.
II. “Official custody” means arrest, custody in a penal institution, an institution for confinement of juvenile offenders or other confinement pursuant to an order of a court.
III. The offense is a class A felony if the actor employs force against any person or threatens any person with a deadly weapon to effect the escape, except that if the deadly weapon is a firearm, he shall be sentenced in accordance with RSA 651:2, Il-g. Otherwise it is a class B felony.
N.H.Rev.Stat. Ann. § 642:6. The statute thus distinguishes between Class A and Class B felony escapes based on the use of force or of a deadly weapon. The government concedes that the Class B felony of which Winn was charged does not have “ |
9,269,638 | 11,781,059 | 2004-04-09 | United States Court of Appeals for the First Circuit | United States v. Winn | United States v. Winn, 364 F.3d 7 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involves conduct that presents a serious potential risk of physical injury • to another. | The government concedes that the Class B felony of which Winn was charged does 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), but argues that the charged offense “ |
9,269,638 | 11,781,059 | 2004-04-09 | United States Court of Appeals for the First Circuit | United States v. Winn | United States v. Winn, 364 F.3d 7 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another |
Our sister circuits have uniformly held that, as a categorical matter, any escape, however effected, “ |
9,269,638 | 11,781,059 | 2004-04-09 | United States Court of Appeals for the First Circuit | United States v. Winn | United States v. Winn, 364 F.3d 7 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | every escape involves a serious potential risk of physical injury to another | United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002)(failure to report back to halfway house constitutes a crime of violence because “ |
9,269,638 | 11,781,059 | 2004-04-09 | United States Court of Appeals for the First Circuit | United States v. Winn | United States v. Winn, 364 F.3d 7 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | conduct that presents a serious potential risk of physical injury to another. |
Circuit courts that have addressed the analogous question of whether an escape conviction qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”) have similarly applied the categorical Taylor analysis to conclude that escape, by its nature, involves “ |
9,269,638 | 11,781,059 | 2004-04-09 | United States Court of Appeals for the First Circuit | United States v. Winn | United States v. Winn, 364 F.3d 7 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another, | Thus, as a categorical matter, a Class B felony escape under N.H.Rev.Stat. Ann. 642:6 “ |
252,269 | 11,781,059 | 2003-12-12 | United States Court of Appeals for the Sixth Circuit | United States v. Medley | United States v. Medley, 85 F. App'x 410 (2003) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | it has as an element the use, attempted use, or threatened use of physical force against the person of another | He also notes that the statute defining the offense does not contain as an element the use or threatened use of violence.
Medley’s argument lacks merit. While this court gives due deference to a district court’s application of the Sentencing Guidelines to the facts, it reviews de novo a district court’s legal conclusion as to whether the facts warrant application of a particular guideline. See United States v. Comer, 93 F.3d 1271, 1278 (6th Cir.1996). A defendant is subject to enhanced penalties as a career offender under the guidelines if: 1) he was at least 18 years old at the time of the instant offense; 2) the instant offense is a felony that is either a crime of violence or one involving a controlled substance; and 3) the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense. See USSG § 4B1.1; United States v. Coleman, 964 F.2d 564, 565-66 (6th Cir.1992). A crime of violence is any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that involves conduct that presents a serious potential risk of physical injury to anothei*. See USSG § 4B1.2.
The district court properly sentenced Medley as a career offender. It is undisputed that Medley meets the first two criteria for sentencing as a career offender, as he was at least eighteen years of age at the time of the instant offense, and his current offense is a felony crime of violence. A prior felony conviction qualifies as a crime of violence if the crime meets any of the following three criteria: it is one of the crimes specifically enumerated in § 4B1.2, or “ |
252,269 | 11,781,059 | 2003-12-12 | United States Court of Appeals for the Sixth Circuit | United States v. Medley | United States v. Medley, 85 F. App'x 410 (2003) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | is burglary of a dwelling ... or otherwise involves conduct that presents a serious potential risk of physical injury to another | A prior felony conviction qualifies as a crime of violence if the crime meets any of the following three criteria: it is one of the crimes specifically enumerated in § 4B1.2, or “it has as an element the use, attempted use, or threatened use of physical force against the person of another” (§ 4B1.2(a)(1)), or it “is burglary of a dwelling... or otherwise involves conduct that presents a serious potential risk of physical injury to another” (§ 4B1.2(a)(2)). |
2,539,557 | 11,781,059 | 2007-01-09 | United States Court of Appeals for the Seventh Circuit | United States v. Chambers | United States v. Chambers, 473 F.3d 724 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another. | POSNER, Circuit Judge.
The defendant pleaded guilty to being a felon in possession of a firearm. The judge, finding that the defendant had committed three crimes of violence previously, sentenced him to 188 months as an armed career criminal. 18 U.S.C. § 924(e). The answer depends on whether escape “ |
2,539,557 | 11,781,059 | 2007-01-09 | United States Court of Appeals for the Seventh Circuit | United States v. Chambers | United States v. Chambers, 473 F.3d 724 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another. | ” 720 ILCS 5/31-6(a). The defendant’s escape was in the latter category — failing to report to a penal institution.
As an original matter, one might have doubted whether failing to report to prison, as distinct from escaping from a jail, prison, or other form of custody, was a crime that typically or often “ |
3,972,493 | 11,781,059 | 2007-01-24 | United States Court of Appeals for the Sixth Circuit | United States v. Howard | United States v. Howard, 216 F. App'x 463 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | has as an element the use, attempted use, or threatened use of physical force against the person of another |
Here, defendant admitted that the firearm and ammunition traveled in interstate commerce and that he had previously been convicted of a felony. Contrary to defendant’s argument, the fact that the firearms and ammunition were found in his home was not the only evidence of possession. The government also presented testimony from Lila Howard that she and defendant fired the rifle on September 5, 2001. Although defendant argues that Lila Howard was not credible, it is not for us to assess credibility. Viewing the evidence in the light most favorable to the government, it was sufficient to establish possession.
C. Sentencing and Appellate Issues
1. Armed Career Criminal
Defendant argues that the district court erred in sentencing him as an armed career criminal because his three Kentucky state convictions for escape were not of a violent nature, were too remote in time from the instant offense, and were not separate in time from each other. We review this issue de novo. United States v. Maness, 23 F.3d 1006, 1008 (6th Cir.1994).
The Armed Career Criminal Act (ACCA) provides, in pertinent part:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g). The term “violent felony” is statutorily defined as any crime that “ |
4,057,751 | 11,781,059 | 2009-09-04 | United States Court of Appeals for the Sixth Circuit | United States v. Young | United States v. Young, 580 F.3d 373 (2009) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | has as an element the use, attempted use, or threatened use of physical force against the person of another, | Indeed, during sentencing, the district judge acknowledged on three occasions that the only issue preserved for appeal was the ACCA enhancement, and neither Young nor his counsel objected otherwise. Thus, Young is barred from raising the suppression issue on appeal.
III.
Young also challenges his 15-year mandatory minimum sentence. ACCA imposes a 15-year mandatory minimum sentence when a defendant convicted of § 922(g) has three or more prior convictions qualifying as “violent felonies” or “serious drug offenses.” 18 U.S.C. § 924(e)(1). Young concedes that two of his prior offenses qualify as serious drug offenses, but he argues that his 1997 conviction for fleeing and eluding, second offense under Michigan law does not qualify as a violent felony under ACCA.
The fleeing-and-eluding statute under which Young was convicted states, in relevant part, as follows:
A driver of a motor vehicle who is given by hand, voice, emergency light, or siren a visual or audible signal by a police or conservation officer, acting in the lawful performance of his or her duty, directing the driver to bring his or her motor vehicle to a stop, and who willfully fails to obey that direction by increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude the police or conservation officer, is guilty of a misdemeanor, and shall be punished by imprisonment for not less than 30 days nor more than 1 year....
Mich. Comp. Laws § 257.602a(l) (1996). If a person violates that provision within five years of a prior fleeing-and-eluding conviction, the offense is punishable as a felony by a term of imprisonment up to and including four years.
A “violent felony” under ACCA is an offense that is punishable by a term of imprisonment exceeding one year and either (1) “ |
4,057,751 | 11,781,059 | 2009-09-04 | United States Court of Appeals for the Sixth Circuit | United States v. Young | United States v. Young, 580 F.3d 373 (2009) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another. | ” 18 U.S.C. § 924(e)(2)(B). Young’s offense was punishable by a term of imprisonment exceeding one year, as he was convicted for a second fleeing and eluding offense within five years; thus, Young’s fleeing- and-eluding conviction satisfies the threshold requirement of ACCA. Thus, the issue before the Court is whether Young’s conviction falls under ACCA’s “residual clause” — that is, whether it “ |
5,354,519 | 11,781,059 | 2006-03-08 | United States Court of Appeals for the Sixth Circuit | United States v. Anglin | United States v. Anglin, 169 F. App'x 971 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | has as an element the use, attempted use, or threatened use of physical force against the person of another. |
We review de novo the district court’s interpretations of the sentencing guidelines, and we review its factual findings for clear error. United States v. Williams, 411 F.3d 675, 677 (6th Cir.2005); United States v. Burke, 345 F.3d 416, 428 (6th Cir.2003). We must defer to the district court’s application of the guidelines to the facts. United States v. Charles, 138 F.3d 257, 266 (6th Cir.1998).
The sentencing guidelines provide for a sentence enhancement based on the defendant’s status as a “career offender,” as defined in U.S.S.G. § 4B1.1. That section provides that, in order to be classified as a career offender: (1) the defendant must have been 18 years old when he committed the offense for which he is to be sentenced; (2) that offense must have been a felony constituting either a “crime of violence” or a “controlled substance offense”; and (3) the defendant must have had at least two prior felony convictions falling into one or the other of those categories. U.S.S.G. § 4B 1.1(a). Anglin admitted at sentencing that he had been convicted of the burglary and that burglary is an enumerated “crime of violence,” and he did not urge further his objection to that conviction’s being counted in the career offender calculation. Nor does he pursue that claim on appeal.
Anglin’s challenge is to the use of his escape conviction in the career offender calculation. Anglin pled guilty in 1995 to a violation of the federal escape statute, which provides that it is an offense against the United States to escape from a penal institution or from various forms of “custody.” Section 751 is not one of the crimes specifically listed in the guidelines as a per se crime of violence, but it may still be considered one if it “ |
3,512,822 | 11,781,059 | 2007-07-12 | United States Court of Appeals for the Sixth Circuit | United States v. Collier | United States v. Collier, 493 F.3d 731 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves' conduct that presents a serious potential risk of physical injury to another. | Collier pleaded guilty, but after learning that he faced not a ten-year maximum sentence but a fifteen-year minimum sentence under the ACCA, he withdrew his guilty plea. In exchange for the i government’s agreement to dismiss other charges, Collier again pleaded guilty.
The Presentence Investigation Report (“PSIR”) concluded that Collier had three prior “violent felonies” under the ACCA and thus faced a base-offense level of 33 under U.S.S.G. § 4B1.4(b)(3)(B). The three Michigan felonies said to qualify were (1) breaking and entering a dwelling with intent to commit larceny, (2) prison escape, and (3) fourth-degree fleeing and eluding a police officer. At sentencing, defense counsel conceded that breaking and entering is a “violent felony,” but argued that the other two are not. The court determined that these two offenses are “violent felonies.”. Collier appealed, renewing his argument that neither prison escape nor fourth-degree fleeing and eluding is a “violent felony.”
II
This court reviews de novo a district court’s legal conclusion that a crime constitutes a “violent felony” under the ACCA. United, States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005) (citing United States v. Martin, 378 F.3d 578, 580 (6th Cir.2004), and United States v. Cooper, 302 F.3d 592, 594 (6th Cir.2002)). The ACCA provides that anyone convicted as á felon in possession of a firearm, 18 U.S.C. § 922(g)(1), after having been convicted of three “violent felonies” shall be imprisoned for not less than fifteen years, id. § 924(e)(1). Neither of the two offenses at issue on appeal is an enumerated offense, involves explosives, or has force as an element — instead, whether either is a “violent felony” turns on whether it “ |
3,512,822 | 11,781,059 | 2007-07-12 | United States Court of Appeals for the Sixth Circuit | United States v. Collier | United States v. Collier, 493 F.3d 731 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another. | Id. at 1067. A jailbreak certainly deserves categorical treatment as a “violent felony,” and we therefore cannot quarrel with the result of Harris (or Gosling, which considered a state statute concerning escapes from “County Jail”). See Gosling, 39 F.3d at 1142 (citing N.D. Cent.Code § 12-16-05 (repealed 1973)). We doubt that a statute covering this “failure to report” variety of escape necessarily “ |
3,512,822 | 11,781,059 | 2007-07-12 | United States Court of Appeals for the Sixth Circuit | United States v. Collier | United States v. Collier, 493 F.3d 731 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another. | We conclude that even with the aid of these sources, the government cannot carry its burden of demonstrating that Michigan’s escape offense “ |
11,417,049 | 11,781,059 | 2002-08-22 | United States Court of Appeals for the Second Circuit | United States v. Jackson | United States v. Jackson, 301 F.3d 59 (2002) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another. | Jackson’s escape therefore can be classified as a “violent felony” only if it “ |
11,417,049 | 11,781,059 | 2002-08-22 | United States Court of Appeals for the Second Circuit | United States v. Jackson | United States v. Jackson, 301 F.3d 59 (2002) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | conduct that presents a serious potential risk of physical injury to another |
In determining whether Jackson’s prior conviction for escape constitutes a violent felony under § 924(e), we take a “categorical approach,” generally looking only to the fact of conviction and the statutory definition of the prior offense rather than to the underlying facts of a particular offense.
Jackson argues that an escape is not categorically “ |
11,417,049 | 11,781,059 | 2002-08-22 | United States Court of Appeals for the Second Circuit | United States v. Jackson | United States v. Jackson, 301 F.3d 59 (2002) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | conduct that presents a serious potential risk of physical injury to another. |
Jackson argues that an escape is not categorically “conduct that presents a serious potential risk of physical injury to another” because the Florida escape statute (under which he was convicted) punishes the escapee who peaceably walks away from a work site as well as the inmate who violently busts out of confinement. The question presented is therefore whether escape, regardless of the particular circumstances, amounts to a violent felony under § 924(e); that is, whether every escape constitutes “ |
11,417,049 | 11,781,059 | 2002-08-22 | United States Court of Appeals for the Second Circuit | United States v. Jackson | United States v. Jackson, 301 F.3d 59 (2002) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | conduct that presents a serious potential risk of physical injury to another. |
Every circuit court that has considered the issue has held that an escape, from whatever location by whatever means, constitutes “ |
11,417,049 | 11,781,059 | 2002-08-22 | United States Court of Appeals for the Second Circuit | United States v. Jackson | United States v. Jackson, 301 F.3d 59 (2002) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | conduct that presents a serious potential risk of physical injury to another. | See, e.g., United States v. Hairston, 71 F.3d 115, 117-18 (4th Cir.1995); United States v. Houston, 187 F.3d 593, 594-95 (6th Cir.1999); United States v. Moudy, 132 F.3d 618, 620 (10th Cir.1998). Several courts have considered whether escape constitutes a “crime of violence” under that provision, and they agree that any escape, however effected, constitutes “ |
11,093,314 | 11,781,059 | 2001-04-10 | United States District Court for the Eastern District of Michigan | United States v. A.F.F. | United States v. A.F.F., 144 F. Supp. 2d 809 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | a felony offense that has an element thereof the use, attempted use, or threatened use of physical force against the person of another.... | ” (Emphasis added).
In this case, the government failed to move for mandatory transfer on a timely basis. Therefore, the issue is not properly before the Comb.
Furthermore, mandatory transfer is not appropriate in this case because all of the prerequisites of the statute have not been satisfied. Mandatory transfer occurs when (1) the defendant is charged with committing one of the statutorily enumerated or categorized felonies; (2) the defendant was over sixteen years of age at the time of the offense; and (3) the defendant had previously been found guilty of committing an offense which, if committed by an adult, would have been one of the enumerated or categorized offenses.
Although first-degree murder is not one of the offenses listed by reference to a statutory section, it certainly falls within the category of “ |
11,093,314 | 11,781,059 | 2001-04-10 | United States District Court for the Eastern District of Michigan | United States v. A.F.F. | United States v. A.F.F., 144 F. Supp. 2d 809 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involved conduct that presents a serious risk of physical injury to another- |
Home invasion in the second degree is defined by Mich.Comp.L. § 750.110a(3) (1999), which states:
A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault is guilty of home invasion in the second degree.
The elements of this crime are (1) a breaking, (2) an entry, and (3) specific intent to commit a felony or a listed crime. See People v. Toole, 227 MichApp. 656, 658, 576 N.W.2d 441 (1998); People v. Adams, 202 MichApp. 385, 390, 509 N.W.2d 530 (1994). The statutory definition of this offense does not require proof of the use or threatened use of physical force against the person of another as a necessary element, although the crime itself could involve such an element if the charged intent was to commit an “assault.”
Generally, when determining whether an offense will serve as a statutory predicate, appellate courts prescribe a categorical approach, which discourages an examination of underlying conduct. The answer turned on whether the crime “ |
11,093,314 | 11,781,059 | 2001-04-10 | United States District Court for the Eastern District of Michigan | United States v. A.F.F. | United States v. A.F.F., 144 F. Supp. 2d 809 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | conduct that presents a serious risk of physical injury to another, | Id. (Emphasis by the Court). The Court observed:
The debate at the 1986 hearings centered upon whether any property crime should be included as predicate offenses, and if so, which ones.
Id. at 589,110 S.Ct. 2143.
The Court considered the defendant’s argument that it should narrowly confine the definition of “burglary” to those offenses which involve a risk that physical force against another person may be used in committing the crime.
Petitioner essentially asserts that Congress meant to include as predicate offenses only a subclass of burglaries whose elements include “ |
11,093,314 | 11,781,059 | 2001-04-10 | United States District Court for the Eastern District of Michigan | United States v. A.F.F. | United States v. A.F.F., 144 F. Supp. 2d 809 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another. | But if this were Congress’ intent, there would have been no reason to add the word “burglary” to § 924(e)(2)(B)(ii), since that provision already includes any crime that “ |
11,099,063 | 11,781,059 | 2001-05-18 | United States Court of Appeals for the Eleventh Circuit | United States v. Gay | United States v. Gay, 251 F.3d 950 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involves conduct that presents a serious potential risk of physical injury to another, | Nevertheless, the court determined that an escape conviction is an offense that " |
11,099,063 | 11,781,059 | 2001-05-18 | United States Court of Appeals for the Eleventh Circuit | United States v. Gay | United States v. Gay, 251 F.3d 950 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | serious potential risk of physical injury to another | Nevertheless, the court determined that an escape conviction is an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another," and, as such, overruled Gay's objection. The court also concluded that, because the government was not contesting the fact that the escape charge was based upon Gay leaving a community corrections center without authorization, and because the law does not support a broad review of the circumstances of the escape, it would not grant Gay's motion for an evidentiary hearing. Gay asserts that the court mistakenly believed that it was precluded from holding such a hearing and believing that a hearing would be futile because all escapes inherently possess the " |
11,099,063 | 11,781,059 | 2001-05-18 | United States Court of Appeals for the Eleventh Circuit | United States v. Gay | United States v. Gay, 251 F.3d 950 (2001) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | presents a serious potential risk of physical injury to another. |
While this Court has not decided whether escape is a crime of violence under § 4B1.2(a), every other circuit that has applied this analysis has determined that escape does involve conduct that “ |
1,037,309 | 11,781,059 | 2006-04-03 | United States Court of Appeals for the Ninth Circuit | United States v. Piccolo | United States v. Piccolo, 441 F.3d 1084 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | an element the use, attempted use, or threatened use of physical force against the person of another, | ” Ultimately, however, the district court ruled that under the analysis set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), all escapes, as a matter of law, constitute crimes of violence. Piccolo was sentenced as a career offender to 37 months under the enhanced Sentencing Guidelines range. This timely appeal followed.
We review the district court’s interpretation of the Sentencing Guidelines de novo. United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006). We also review de novo the determination of career-offender status under U.S.S.G. § 4B1.1. United States v. Kelly, 422 F.3d 889, 891-92 (9th Cir.2005).
Because escape is neither specifically enumerated under U.S.S.G. § 4B1.2 nor has as “ |
1,037,309 | 11,781,059 | 2006-04-03 | United States Court of Appeals for the Ninth Circuit | United States v. Piccolo | United States v. Piccolo, 441 F.3d 1084 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | conduct that presents a serious potential risk of physical injury to another. |
Because escape is neither specifically enumerated under U.S.S.G. § 4B1.2 nor has as “an element the use, attempted use, or threatened use of physical force against the person of another,” the offense, to qualify as a crime of violence, must fall within the “catchall” provision of § 4B1.2(a)(2) for “ |
1,037,309 | 11,781,059 | 2006-04-03 | United States Court of Appeals for the Ninth Circuit | United States v. Piccolo | United States v. Piccolo, 441 F.3d 1084 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | an element the use, attempted use, or threatened use of physical force against the person of another. | Although the categorical analysis is driven in part by a policy decision to “avoid ‘ad-hoc mini-trials regarding an individual’s prior convictions’ during sentencing hearings,” Amparo, 68 F.3d at 1225 (emphasis added) (citing United States v. Sherbondy, 865 F.2d 996, 1008 (9th Cir.1988)), the absence of that particular problem did not preclude us from adopting the categorical approach.
We have consistently applied categorical analysis in determining whether a prior offense satisfies a sentence-enhancement provision of the Sentencing Guidelines. See, e.g., United States v. Pimentel-Flores, 339 F.3d 959, 967-68 (9th Cir.2003) (holding that the question whether defendant’s prior conviction is a crime of violence for purposes of U.S.S.G. § 2L1.2(b)(l) is subject to categorical approach); Shumate, 329 F.3d at 1029 (same with respect to career-offender status under U.S.S.G. § 4B1.2). The logic of Amparo dictates that we do the same with respect to current offenses. Accordingly, the crime-of-violence determination under U.S.S.G. § 4B1.2, a legal question, is properly decided under Taylor’s categorical analysis in cases of both prior and current offenses.
Ill
As previously noted, the definition of “crime of violence” under U.S.S.G. § 4B1.2 does not specifically mention “escape. Moreover, an escape under § 751(a) does not have as “ |
1,037,309 | 11,781,059 | 2006-04-03 | United States Court of Appeals for the Ninth Circuit | United States v. Piccolo | United States v. Piccolo, 441 F.3d 1084 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | every escape involves a serious potential risk of physical injury to another | See, e.g., United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004) (the “categorical approach forecloses the conclusion” that failure to return to a halfway house would not “present a serious risk of injury to another”); United States v. Thomas, 361 F.3d 653, 657-60 (D.C. Cir.2004) (concluding under a categorical approach that “the offense of escape is a crime of violence within the meaning of... § 4131.2(a)”), vacated and remanded, 543 U.S. 1111, 125 S.Ct. 1056, 160 L.Ed.2d 1045 (2005) (remanding in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)); United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002) (failure to report back to halfway house constitutes a crime of violence because “ |
1,037,309 | 11,781,059 | 2006-04-03 | United States Court of Appeals for the Ninth Circuit | United States v. Piccolo | United States v. Piccolo, 441 F.3d 1084 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involve[] conduct that presents a serious potential risk of physical injury to another, | We therefore decline the opportunity to join the other circuits that have held that any escape is a crime of violence.
The record is clear that Piccolo left the unsecured facility with permission to attend a drug treatment program. This is a far cry from a scenario where an escapee flees a guarded prison or the custody of an armed official. And, as mentioned earlier, the district court noted the nonviolent nature of the offense.
Ordinarily, following a determination that an offense does not categorically qualify as a crime of violence, we would turn to the modified categorical approach and examine the conviction with reference to additional relevant evidence. See Shepard, 125 S.Ct. at 1257, 1263.
IV
Although Taylor provides the appropriate framework for determining whether a current offense constitutes a crime of violence, a conviction for escape under 18 U.S.C. § 751 does not necessarily “ |
190,611 | 11,781,059 | 2003-08-26 | United States Court of Appeals for the Seventh Circuit | United States v. Hamilton | United States v. Hamilton, 75 F. App'x 519 (2003) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another, | The career offender provision increases the criminal history category and offense level (and thus the imprisonment range) of defendants who commit certain offenses after having been convicted of two felony controlled substance offenses or “crimes of violence,” U.S.S.G. § 4Bl.l(a), (b), which include any offense that “ |
51,234 | 11,781,059 | 2005-12-06 | United States Court of Appeals for the Sixth Circuit | United States v. McGhee | United States v. McGhee, 161 F. App'x 441 (2005) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | has as an element the use, attempted use, or threatened use of physical force against the person of another.... | However, defendant contends, as he did in the district court, that one of the predicate offenses, a 1999 conviction in the Michigan circuit court for “Fleeing and Eluding in the 4th Degree,” did not constitute a “crime of violence,” which the Guidelines define as a crime punishable by imprisonment for a term exceeding one year that “has as an element the use, attempted use, or threatened use of physical force against the person of another.... |
51,234 | 11,781,059 | 2005-12-06 | United States Court of Appeals for the Sixth Circuit | United States v. McGhee | United States v. McGhee, 161 F. App'x 441 (2005) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | serious potential risk of physical injury, | If the court were not convinced, however, that the statutory formulation of the offense encompassed conduct that posed a serious potential of physical injury, it could examine the indictment for the specific conduct charged.
United States v. Herrera, 375 F.3d 399, 403 (6th Cir.2004) (citation omitted), cert. denied, 543 U.S. 1073, 125 S.Ct. 926, 160 L.Ed.2d 810 (2005). Furthermore, this court has held that, because the Michigan fleeing-and-eluding statute increases the “ |
939,931 | 11,781,059 | 2006-02-08 | United States Court of Appeals for the Sixth Circuit | United States v. Foreman | United States v. Foreman, 436 F.3d 638 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | serious potential risk of physical injury. | ”). In our examination of both fleeing in a low speed area and causing an accident, we placed heavy emphasis on the word “potential” in the standard “ |
939,931 | 11,781,059 | 2006-02-08 | United States Court of Appeals for the Sixth Circuit | United States v. Foreman | United States v. Foreman, 436 F.3d 638 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | serious potential risk of physical injury. | Id. Therefore, his sentence was held to have been appropriately enhanced by the district court while leaving the question of whether fourth degree fleeing and eluding was a “crime of violence” unresolved. Id.
We are now faced, in this case, with resolving that question. However, for a prior crime to be one “of violence” it must have “ |
62,095 | 11,781,059 | 2006-01-30 | United States District Court for the Middle District of Alabama | United States v. Tignor | United States v. Tignor, 414 F. Supp. 2d 1070 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | as an element the use, attempted use, or threatened use of physical force against the person of another. | Hayes, 717 So.2d at 33 (emphasis in original). The Defendant here was convicted of conduct, whatever that was, toward his victim, which was done with the intent to place his victim in a reasonable fear of death or serious bodily harm. This court concludes that, regardless of the actual mental effect on the victim, conduct intended to cause another to fear death or serious bodily harm must include the threatened use of physical force. Therefore the first prong of U.S.S.G. § 4B1.2 is satisfied, and Aggravated Stalking under Alabama law should be classified as a crime of violence for sentencing purposes.
Because the first prong of U.S.S.G. § 4B1.2 is satisfied, there is no need to analyze Aggravated Stalking under the second prong.
2. Felony DUI as a crime of violence
In 2004, Defendant was convicted of DUI for the fourth time. Under Alabama law, DUI is a misdemeanor offense until a fourth or subsequent conviction, at which point it becomes a Class C felony punishable by imprisonment of not less than one year and one day. Ala.Code § 32-5A-191 (1999). Upon his fourth conviction for DUI in 2004, Defendant was sentenced to four years in State prison.
The Government does not contend that Felony DUI falls within the first prong of § 4B1.2(a), that is, Felony DUI in Alabama does not have “ |
62,095 | 11,781,059 | 2006-01-30 | United States District Court for the Middle District of Alabama | United States v. Tignor | United States v. Tignor, 414 F. Supp. 2d 1070 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involves conduct that presents a serious potential risk of physical injury to another. | U.S.S.G. § 4B1.2(a)(l). Felony DUI is also not one of the four crimes of violence specifically enumerated in § 4B1.2(a)(2): burglary, arson, extortion, or the use of explosives. What is left is the so called, “otherwise clause. The Government argues that Felony DUI is a crime of violence because it satisfies the second prong of U:S.S.G. § 4B1.2 in that it “ |
62,095 | 11,781,059 | 2006-01-30 | United States District Court for the Middle District of Alabama | United States v. Tignor | United States v. Tignor, 414 F. Supp. 2d 1070 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | or otherwise involves conduct that presents a serious potential risk of physical injury to another, | Here, § 4B1.2(a)(2) clearly says “ |
62,095 | 11,781,059 | 2006-01-30 | United States District Court for the Middle District of Alabama | United States v. Tignor | United States v. Tignor, 414 F. Supp. 2d 1070 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | conduct that presents a serious potential risk of physical injury to another. |
To interpret such cases as being similar to the listed offenses only because of the “significant risk of violent confrontation between the criminal and the victim or the law enforcement officer,” is, again, to en-graft a restrictive interpretation onto the language which requires only “ |
62,095 | 11,781,059 | 2006-01-30 | United States District Court for the Middle District of Alabama | United States v. Tignor | United States v. Tignor, 414 F. Supp. 2d 1070 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | serious potential risk of physical injury to another | It is the present ability to drive or move the car that creates a “ |
62,095 | 11,781,059 | 2006-01-30 | United States District Court for the Middle District of Alabama | United States v. Tignor | United States v. Tignor, 414 F. Supp. 2d 1070 (2006) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | conduct that, by its nature, presents a serious potential risk of physical injury to another. | The Eighth Circuit held otherwise in an unpublished table opinion, United States v. Bassham, 162 F.3d 1165, 1998 WL 378105 (8th Cir.1998), which affirmed the district court’s holding that Defendant’s earlier convictions for attempted burglary and stalking were crimes of violence under the sentencing guidelines. If the court did so, it would conclude that Aggravated Stalking clearly involves " |
3,723,022 | 11,781,059 | 2004-03-16 | United States Court of Appeals for the District of Columbia Circuit | United States v. Thomas | United States v. Thomas, 360 U.S. App. D.C. 333 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | as an element the use, attempted use, or threatened use of physical force against the person of another. | Hill, 131 F.3d at 1062 (quoting Mathis, 963 F.2d at 408). In this case, because Smith’s and Cook’s escape indictments are devoid of detail, and Thomas’ indictments were never proffered to the court, the parties agree that we should look no further than the statutory language. See Taylor, 495 U.S. at 600, 110 S.Ct. at 2159; United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States v. Pierce, 278 F.3d 282, 287 (4th Cir.2002). That is, the offenses defined by those statutes do not have “ |
3,723,022 | 11,781,059 | 2004-03-16 | United States Court of Appeals for the District of Columbia Circuit | United States v. Thomas | United States v. Thomas, 360 U.S. App. D.C. 333 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involves conduct that presents a serious potential risk of physical injury to another. | U.S.S.G. § 4B1.2(a)(l) (emphasis added). Thus, the only remaining question is whether escape falls within the “otherwise” clause of § 4B1.2(a)(2): a crime that “ |
3,723,022 | 11,781,059 | 2004-03-16 | United States Court of Appeals for the District of Columbia Circuit | United States v. Thomas | United States v. Thomas, 360 U.S. App. D.C. 333 (2004) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | a serious potential risk of physical injury to another, | ”) (emphasis added). Many concededly violent offenses can be hypothesized to take place in a manner that eliminates risk of injury: attempted murder, for example, becomes riskless if we assume that the sniper’s gun has no bullets. In so doing, they circumvent the definitional question posed by the guideline: whether, as a category (i.e., “by its nature”), escape involves conduct that presents “ |
3,866,552 | 11,781,059 | 2007-04-13 | United States Court of Appeals for the Fourth Circuit | United States v. Mathias | United States v. Mathias, 482 F.3d 743 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another, | Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Judge SHEDD joined.
OPINION
WILKINSON, Circuit Judge:
This case presents the question of whether escape qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”) when the escape did not involve force or violence. In connection with the armed robbery of National Cash Advance, a payday lending service, Linwood Mathias was indicted as a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (2000 & Supp. 2004). He pled guilty. During sentencing, the district court held that Mathias’ three prior convictions — two for burglary and one for felony escape — were “violent felon[ies]” under the ACCA. The court thus designated Mathias an armed career criminal and sentenced him to the statutory minimum: fifteen years imprisonment.
Mathias appeals this sentence. He contends that he should not have been classified as an armed career criminal because the circumstances of his case involved nothing more than a walkaway from a work release program and because his escape conviction was under a Virginia law titled “Escape without force or violence.” Because every escape “ |
3,866,552 | 11,781,059 | 2007-04-13 | United States Court of Appeals for the Fourth Circuit | United States v. Mathias | United States v. Mathias, 482 F.3d 743 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | has as an element the use, attempted use, or threatened use of physical force against the person of another, | On November 10, 2004, he was indicted as a felon-in-possession and of aiding and abetting the same conduct in violation of 18 U.S.C. §§ 922(g)(1), 924, and 2. Mathias pled guilty to the felon-in-possession and aiding and abetting charges on July 12, 2005.
The Presentence Investigation Report catalogued Mathias’ extensive criminal history. Most pertinently, the PSR identified three prior “violent felony” convictions: two for burglary and one for felony escape. With respect to the felony escape conviction, the PSR noted that Defendant Mathias had walked away from a work release program in violation of Virginia Code § 18.2-479(B). Mathias objected to the violent felony classification of his prior Virginia escape conviction and argued that the conviction was a nonviolent one under Virginia law. The district court disagreed. The court held that Mathias’ escape conviction was a violent felony for purposes of the ACCA regardless of its classification under state law. The court then adopted without modification the PSR, designated Mathias an armed career criminal, and imposed the mandatory minimum sentence of fifteen years imprisonment required by the ACCA.
Mathias now appeals.
II.
The Armed Career Criminal Act imposes heightened sentences on individuals who by repeated conduct have demonstrated an unwillingness to abide by basic social norms as expressed in state and federal criminal codes. Under the statute, any person who violates the felon-in-possession statute, 18 U.S.C. § 922(g), and has three previous “violent felony” convictions must be designated an armed career criminal. 18 U.S.C. § 924(e)(1). This designation carries a mandatory sentence of not less than fifteen years. The ACCA, 18 U.S.C. § 924(e)(2)(B), defines the term “violent felony” as any crime punishable by imprisonment for more than one year that (1) “ |
3,866,552 | 11,781,059 | 2007-04-13 | United States Court of Appeals for the Fourth Circuit | United States v. Mathias | United States v. Mathias, 482 F.3d 743 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | the use, attempted use, or threatened use of physical force | He urges us to “loo[k] beyond the definition of the charging document and statute” and parse the underlying factual basis of his conviction.
This argument ignores settled law: in this circuit, as in others, the question of whether an escape is a “violent felony” is a categorical one. See, e.g., United States v. Wardrick, 350 F.3d 446, 454 (4th Cir.2003); United States v. Hairston, 71 F.3d 115, 117 (4th Cir.1995); see also Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under the categorical approach, we consider the nature of the offense as defined by statute, not the conduct and circumstances underlying a specific conviction. Wardrick, 350 F.3d at 454; Hairston, 71 F.3d at 117; see also Taylor, 495 U.S. at 602, 110 S.Ct. 2143.
The question, therefore, is whether escape as codified in Virginia Code § 18.2-479(B) is a “violent felony.” Because escape under this provision does not itself involve “ |
3,866,552 | 11,781,059 | 2007-04-13 | United States Court of Appeals for the Fourth Circuit | United States v. Mathias | United States v. Mathias, 482 F.3d 743 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involves conduct that presents a serious potential risk of physical injury to another. | Because escape under this provision does not itself involve “the use, attempted use, or threatened use of physical force” as required by 18 U.S.C. § 924(e)(2)(B)(i), the issue is whether Virginia Code § 18.2-479(B) “ |
3,866,552 | 11,781,059 | 2007-04-13 | United States Court of Appeals for the Fourth Circuit | United States v. Mathias | United States v. Mathias, 482 F.3d 743 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | inherently presents the serious potential risk of physical injury to another, | See 18 U.S.C. § 924(e)(l)(B)(ii).
This court decided as much in United States v. Hairston, 71 F.3d 115 (4th Cir.1995), when we held that felony escape from custody in North Carolina, see N.C. Gen.Stat. § 148 — 45(b)(1) (1987), constitutes a crime of violence under the ACCA. In that case, defendant jumped over a fence in a minimum security prison. He argued that felony escape from custody in North Carolina did not present a serious potential risk of physical injury because, in North Carolina, most felony escapes were undertaken by stealth. Hairston, 71 F.3d at 118. We explained that any escape, even an escape by stealth, “ |
3,866,552 | 11,781,059 | 2007-04-13 | United States Court of Appeals for the Fourth Circuit | United States v. Mathias | United States v. Mathias, 482 F.3d 743 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | serious potential risk of physical injury | We explained that any escape, even an escape by stealth, “inherently presents the serious potential risk of physical injury to another,” and concluded that an escape offense, however effected, is a “violent felony” under the categorical approach of 18 U.S.C. § 924(e)(l)(B)(ii). Id.; see also Wardrick, 350 F.3d at 455.
The same result obtains here. Defendant Mathias unlawfully and feloniously broke the bonds of custody when he walked away from the work, release program. In this, he violated Virginia Code § 18.2-479(B), and committed a “violent felony” under the categorical approach, this court’s decision in Hairston, and the second prong of 18 U.S.C. § 924(e)(1)(B).
Our conclusion finds support in the decisions of our sister circuits. See, e.g., United States v. Jackson, 301 F.3d 59, 63 (2d Cir.2002) (holding that a “walkaway” escape is a violent felony under 18 U.S.C. § 924(e)(2)(B)(ii)); United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir.2002) (same); United States v. Springfield, 196 F.3d 1180, 1185 (10th Cir.1999) (same); United States v. Franklin, 302 F.3d 722, 724-25 (7th Cir.2002) (holding that escape is a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(ii) because it presents a “ |
3,866,552 | 11,781,059 | 2007-04-13 | United States Court of Appeals for the Fourth Circuit | United States v. Mathias | United States v. Mathias, 482 F.3d 743 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | a serious potential risk of physical injury to another. | To the contrary, we examine only whether the nature of the offense presents “ |
3,866,552 | 11,781,059 | 2007-04-13 | United States Court of Appeals for the Fourth Circuit | United States v. Mathias | United States v. Mathias, 482 F.3d 743 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another, | Since every escape, however executed, “ |
3,866,552 | 11,781,059 | 2007-04-13 | United States Court of Appeals for the Fourth Circuit | United States v. Mathias | United States v. Mathias, 482 F.3d 743 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | as an element the use, attempted use, or threatened use of physical force against the person of another, | Since every escape, however executed, “involves conduct that presents a serious potential risk of physical injury to another,” see 18 U.S.C. § 924(e)(l)(B)(ii) (emphasis added), “[i]t is irrelevant... whether defendant was convicted under a state statute that defines escape as a nonviolent offense,” Springfield, 196 F.3d at 1185.
Second, the fact that “violence” is not an element of Virginia Code § 18.2-479(B) is hardly dispositive. And while Mathias is correct that the first clause of § 924(e)(2)(B) defines as violent felonies those which have “ |
3,866,552 | 11,781,059 | 2007-04-13 | United States Court of Appeals for the Fourth Circuit | United States v. Mathias | United States v. Mathias, 482 F.3d 743 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise in-volv[e] conduct that presents a serious potential risk of physical injury to another. | And while Mathias is correct that the first clause of § 924(e)(2)(B) defines as violent felonies those which have “as an element the use, attempted use, or threatened use of physical force against the person of another,” he altogether ignores the second clause of § 924(e)(2)(B). Rather, as we have noted above, the appropriate inquiry is risk: under § 924(e)(2)(B)(ii), violent felonies include those which “ |
3,866,552 | 11,781,059 | 2007-04-13 | United States Court of Appeals for the Fourth Circuit | United States v. Mathias | United States v. Mathias, 482 F.3d 743 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another, | Discover Bank v. Vaden, 396 F.3d 366, 369 (4th Cir.2005) (quoting United States v. Ryan-Webster, 353 F.3d 353, 366 (4th Cir.2003)); see also Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (same).
III.
For the foregoing reasons, we conclude that Mathias’ felony escape conviction under Virginia Code § 18.2-479(B) is a “violent felony” as defined by the ACCA. Mathias’ sentence is affirmed.
AFFIRMED.
1
. Codefendant Cooper pled guilty to possession of a firearm by a convicted felon and aiding and abetting the same conduct. He was sentenced to 120 months’ imprisonment. Cooper appealed. This court affirmed, finding Cooper’s sentence to be reasonable. United States v. Cooper, 211 Fed.Appx. 193, 194 (4th Cir.2006). Codefendant Deberry also pled guilty to possession of a firearm by a convicted felon and aiding and abetting; he was sentenced to 120 months’ imprisonment. On appeal, this court affirmed Deberry's conviction and sentence. United States v. Deberry, 173 Fed.Appx. 306, 307 (4th Cir.2006). In addition, the vast majority of our sister circuits (and this court) have concluded that, because escape “ |
3,706,290 | 11,781,059 | 2007-08-31 | United States Court of Appeals for the Sixth Circuit | United States v. Lancaster | United States v. Lancaster, 501 F.3d 673 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | involves conduct that presents a serious potential risk of physical injury to another, |
Also, in United States v. Esteppe, 483 F.3d 447, 451 (6th Cir.2007), we held that a Kentucky state “conviction for escape similarly constitutes a crime of violence under this court’s decision in [Harris 3” for purposes of the “career offender” enhancement provision of U.S.S.G. § 4B1.1. However, the Esteppe opinion does not specify whether the defendant’s Kentucky escape conviction was for first- or second-degree escape. Concluding that an attempted burglary “ |
3,706,290 | 11,781,059 | 2007-08-31 | United States Court of Appeals for the Sixth Circuit | United States v. Lancaster | United States v. Lancaster, 501 F.3d 673 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | serious potential risk of physical injury to another |
Id. (quoting United States v. Thomas, 333 F.3d 280, 282 (D.C.Cir.2003)).
The dichotomy between “jailbreaks” and “walk away escapes” may be problematic with regard to minimum security jails or prisons possessing no walls or fences. Many such non-“jailbreak” escapes pose an equal, if not greater, “ |
3,706,290 | 11,781,059 | 2007-08-31 | United States Court of Appeals for the Sixth Circuit | United States v. Lancaster | United States v. Lancaster, 501 F.3d 673 (2007) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | conduct that presents a serious potential risk of physical injury to another. | It is therefore consistent with Collier for us to consider the consequences and circumstances of a Kentucky prisoner’s escape from custody; Harris and Houston counsel us that these circumstances involve “ |
3,488,198 | 11,781,059 | 2009-10-26 | United States Court of Appeals for the Eleventh Circuit | United States v. Lee | United States v. Lee, 586 F.3d 859 (2009) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involves conduct that presents a serious potential risk of physical injury to another. | Because the government’s concession with regard to Lee’s escape conviction is not dispositive, see Roberts v. Galen of Va., Inc., 525 U.S. 249, 253, 119 S.Ct. 685, 687, 142 L.Ed.2d 648 (1999) (per curiam), we must determine as a matter of first impression in this circuit whether a non-violent “walkaway” escape is a violent felony for purposes of the ACCA. We conclude that it is not.
A defendant convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) is ordinarily subject to a statutory mandatory maximum sentence of ten years’ imprisonment. See 18 U.S.C. § 924(a)(2). Where a defendant has three prior “violent felony” convictions, however, he is subject to a statutory mandatory minimum of fifteen years’ imprisonment as an “armed career criminal.” 18 U.S.C. § 924(e)(1); see U.S.S.G. § 4B1.4(a). The prosecution bears the burden of proving that a sentencing enhancement under the ACCA is warranted. United States v. Harrison, 558 F.3d 1280, 1294 n. 24 (11th Cir.2009).
The ACCA defines a “violent felony” as:
any crime punishable by imprisonment for a term exceeding one year... that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Where a crime does not fit within (i) or the first clause of (ii), the court must determine whether the crime comes within (ii)’s residual clause, that is, whether it “ |
3,488,198 | 11,781,059 | 2009-10-26 | United States Court of Appeals for the Eleventh Circuit | United States v. Lee | United States v. Lee, 586 F.3d 859 (2009) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | the serious potential risk of injury | Harrison, 558 F.3d at 1285. Before Be-gay, this inquiry focused exclusively on the degree of risk posed by violation of the state statute. See id. See id. at 1286 (noting that “ |
3,488,198 | 11,781,059 | 2009-10-26 | United States Court of Appeals for the Eleventh Circuit | United States v. Lee | United States v. Lee, 586 F.3d 859 (2009) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | it does not involve conduct that presents a serious potential risk of physical injury to another. | Having determined that escape from custody and failure to report are two separate and distinct crimes, the Court held that the offense of “failure to report” does not fall within § 924(e)(2)(B)(ii)’s residual clause because “ |
3,431,672 | 11,781,059 | 2009-03-18 | United States Court of Appeals for the Sixth Circuit | United States v. Ford | United States v. Ford, 560 F.3d 420 (2009) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | (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. | OPINION
SUTTON, Circuit Judge.
Jeffrey Ford challenges his sentence for bank robbery, arguing that the district court improperly sentenced him as a career offender under § 4Bl.l(a) of the sentencing guidelines. Because his previous conviction for a “walkaway” escape is not a “crime of violence” under this provision of the guidelines, we reverse and remand for resentencing.
I.
In 2007, Ford pleaded guilty to bank robbery. See 18 U.S.C. § 2113(a). The district court calculated an advisory guidelines range of 151 to 188 months, see U.S.S.G. ch. 5, pt. A, and sentenced Ford to 151 months. His offense level included a 10-point career-offender enhancement based on his present bank-robbery conviction and prior state-law convictions for robbery and second-degree escape. See id. § 4Bl.l(a).
II.
Ford’s appeal presents one issue: Does his prior conviction for escape constitute a “crime of violence”?
Some of this ground is well-plowed. A defendant is a career offender, as pertinent here, if he was at least 18 when he committed the offense, the offense is a felony “crime of violence” and he has been convicted of at least two prior felony “crime[s] of violence.” A “crime of violence” is an offense that warrants at least a year in prison and that “ |
3,431,672 | 11,781,059 | 2009-03-18 | United States Court of Appeals for the Sixth Circuit | United States v. Ford | United States v. Ford, 560 F.3d 420 (2009) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | otherwise involves conduct that presents a serious potential risk of physical injury to another. | ” Id. § 4B 1.2(a).
Acknowledging that his robbery convictions — his present one and his earlier one — amount to crimes of violence, Ford argues that his second-degree-escape conviction does not. That leaves the possibility that the offense “ |
3,431,672 | 11,781,059 | 2009-03-18 | United States Court of Appeals for the Sixth Circuit | United States v. Ford | United States v. Ford, 560 F.3d 420 (2009) | 1999-01-26 | United States Court of Appeals for the Sixth Circuit | United States v. Harris | United States v. Harris, 165 F.3d 1062 (1999) | 11781059_7 | the use of force or threat of force against another person, | 129 S.Ct. at 691. A first reading of the case thus might suggest that, in the world of state-law escape offenses, the federal courts have just these two options to work with — leaving custody or failing to report to custody — and as between the two, it is safe to say that Ford’s offense would be a departure from custody and thus would be a crime of violence. But in Chambers itself, the Court said there were “at least two” ways to divide up the offense, id.— perhaps because Illinois law contained another distinct offense (failure to comply with home-confinement conditions), id., or perhaps because the Court appreciated that there may be other ways to characterize escapes as a matter of federal law. In addition to proscribing general departures from custody and general failures to return, Kentucky law separately criminalizes escapes involving “ |
637,971 | 11,765,371 | 1999-08-11 | United States District Court for the Middle District of North Carolina | Buser v. Southern Food Service, Inc. | Buser v. Southern Food Service, Inc., 73 F. Supp. 2d 556 (1999) | 1999-03-09 | United States Court of Appeals for the Eleventh Circuit | Wascura v. Carver | Wascura v. Carver, 169 F.3d 683 (1999) | 11765371_5 | a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.... | ” (Br. in Supp. of Defs.’ Mot. to Strike and Dismiss at 14-15.) In support of this argument, Defendants cite Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.), cert. denied, 513 U.S. 1058, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994), in which the Fourth Circuit held that the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 612 et seq., limits civil liability to the corporate employer and, therefore, individual employees may not be sued under that statute. Under the ADEA, the term “employer” is defined as “ |
637,971 | 11,765,371 | 1999-08-11 | United States District Court for the Middle District of North Carolina | Buser v. Southern Food Service, Inc. | Buser v. Southern Food Service, Inc., 73 F. Supp. 2d 556 (1999) | 1999-03-09 | United States Court of Appeals for the Eleventh Circuit | Wascura v. Carver | Wascura v. Carver, 169 F.3d 683 (1999) | 11765371_5 | any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer. | 42 U.S.C. § 2000e(b)” (emphasis added). The Fourth Circuit considered this statutory definition of employer “similar” to the provision contained in the ADEA. Lissau, 159 F.3d at 180.
This Court acknowledges that the definition of employer under the FMLA — like the respective provisions of the ADEA and Title VII — contains a requirement that the person employ a minimum number of workers. First, unlike the ADEA and Title VII, the FMLA definition of employer is not limited to “agency” relationships but instead includes broader language, capturing “ |
11,546,102 | 11,765,371 | 1999-06-25 | United States District Court for the Middle District of Pennsylvania | Kilvitis v. County of Luzerne | Kilvitis v. County of Luzerne, 52 F. Supp. 2d 403 (1999) | 1999-03-09 | United States Court of Appeals for the Eleventh Circuit | Wascura v. Carver | Wascura v. Carver, 169 F.3d 683 (1999) | 11765371_5 | any person who acts directly or indirectly in the interest of an employer to any of the employees of such employer. | Id. at 28, 112 S.Ct. 358.
The pertinent inquiry here, therefore, is whether Congress has imposed liability on an individual in his or her personal capaci ty. The FMLA defines an “employer” as, inter alia, “ |
11,216,762 | 11,765,371 | 2000-06-26 | United States District Court for the Northern District of Iowa | Longstreth v. Copple | Longstreth v. Copple, 101 F. Supp. 2d 776 (2000) | 1999-03-09 | United States Court of Appeals for the Eleventh Circuit | Wascura v. Carver | Wascura v. Carver, 169 F.3d 683 (1999) | 11765371_5 | any person who acts directly or indirectly in the interest of an employer to any of the employees of such employer. | But see Churchill v. Star Enters., 3 F.Supp.2d 622, 624-25 (E.D.Pa.1998) (stating, following verdict for plaintiff in action against employer brought under the FMLA, that “the jury’s award does not and cannot represent wages for services performed since [the plaintiff] performed none during the relevant time frame,” and, therefore, “no withholding is mandated under federal or state law”). However, because MCI failed to include such language in the Offer of Judgment, the court is not persuaded that the judgment of $40,000.00 was made payable solely by MCI to Longstreth, thus triggering the withholding requirements discussed in Newhouse. It must be remembered that Longstreth sued not only MCI, but also Tom Copple, for violations of the FMLA, and that it was the defendants, collectively, who made the Rule 68 Offer of Judgment to Longstreth. Longstreth points this out, arguing that because the Offer of Judgment was made by defendants, it is possible that the $40,000.00 represents damages payable by Copple who has no obligation to withhold statutory deductions. The court agrees. The FMLA defines an “employer” as, inter alia, “ |