U.S. v. Piccolo

• Decision Date: 03 April 2006
• Docket Number: No. 04-10577.,04-10577.
• Citation: 441 F.3d 1084
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frazer Scott PICCOLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1084

441 F.3d 1084

UNITED STATES of America, Plaintiff-Appellee, v. Frazer Scott PICCOLO, Defendant-Appellant.

No. 04-10577.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 15, 2005.

Filed April 3, 2006.

Franny A. Forsman and Arthur L. Allen, Las Vegas, NV, for the appellant.

Daniel G. Bogden and Patrick Walsh, Las Vegas, NV, for the appellee.

Appeal from the United States District Court for the District of Nevada; Larry R. Hicks, District Judge, Presiding. D.C. No. CR-04-00083-LRH/PAL.

Before BETTY B. FLETCHER, JOHN R. GIBSON,^* and MARSHA S. BERZON, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge.

Appellant Frazer Scott Piccolo appeals the district court's determination that his conviction for walkaway escape from a halfway house is a "crime of violence" under United States Sentencing Guidelines ("Sentencing Guidelines" or "U.S.S.G.") § 4B1.1 and that he is accordingly a "career offender" under that provision. Because we hold that the district court erred in determining that any escape is a crime of violence, we reverse and remand for resentencing.

I

On April 9, 2003, Piccolo, while residing at the Clark Community Corrections Center, a non-secure halfway house in Las Vegas, Nevada, left to attend a drug treatment meeting and did not return.¹ He voluntarily turned himself in on February 25, 2004, and was charged with escape under 18 U.S.C. § 751(a). Piccolo entered a guilty plea.

The Presentence Investigation Report categorized Piccolo's walkaway escape as a crime of violence, subjecting him to the career-offender provision of the Sentencing Guidelines in light of his prior convictions for crimes of violence. That provision, U.S.S.G. § 4B1.1, provides that a defendant is a career offender if:

(1) the defendant was at least eighteen years old at the time the defendant 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 of either a crime of violence or a controlled substance offense.

Piccolo did not contest the designations regarding the prior crimes in district court.² Rather, he claimed that § 4B1.1 is not applicable to him because walkaway escape, the instant offense, is not a crime of violence.

The district court expressed doubt whether Piccolo's escape could be deemed a crime of violence, noting, "I don't view a walk away from the Clark Center as in the same category as classic escapes obviously." The district court also stated, "the facts of Mr. Piccolo's case are about as far removed from a crime of violence of any — as any crime of violence I've personally had in front of me. . . . It's — this is a halfway house, he did walk away, there was no threat to anyone. . . ." 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.³

II

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).

Under U.S.S.G. § 4B1.2, a "crime of violence" is defined as any 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 use of explosives, or otherwise involves 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 "conduct that presents a serious potential risk of physical injury to another."

The "categorical approach" outlined in Taylor governs our inquiry of the question whether a particular conviction satisfies the specified elements of a sentence-enhancement provision. Under the categorical approach, we "do not examine the facts underlying the prior offense, but `look only to the fact of conviction and the statutory definition of the prior offense.'" United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). We then "determine whether `the fact of conviction and the statutory definition of the prior offense' demonstrate that [the defendant] could not have been convicted of an offense outside the guideline definition." United States v. Shumate, 329 F.3d 1026, 1029 (9th Cir.2003) (citing Corona-Sanchez, 291 F.3d at 1203).⁴ If we find that the relevant statute would support a conviction not defined as a crime of violence under § 4B1.2, the prior "conviction does not qualify as a predicate offense." Corona-Sanchez, 291 F.3d at 1203.

We apply the categorical approach "in a variety of sentencing contexts." United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir.2001) (en banc). Moreover — and crucial to this case — we apply it without regard to whether the given offense is a prior offense or the offense of conviction.

In United States v. Amparo, 68 F.3d 1222, 1224-26 (9th Cir.1995), we applied the categorical approach to a current conviction under 18 U.S.C. § 924(c)(3)(B) to hold that possession of an unregistered sawed-off shotgun is a crime of violence. Amparo noted that, when determining questions of law, we adopt a categorical approach in lieu of "the circumstantial or case-by-case method that requires the district court to inquire into the facts of the particular case." Id. at 1225 (quoting United States v. Mendez, 992 F.2d 1488, 1490 (9th Cir.1993) (internal quotation marks omitted)). Moreover, in the context of crime-of-violence determinations under § 924(c), our categorical approach applies regardless of whether we review a current or prior crime. See Amparo, 68 F.3d at 1224-26; see also Mendez, 992 F.2d at 1489-91 (applying categorical approach to hold that current offense of conspiracy to rob under 18 U.S.C. § 1951 is a crime of violence under § 924(c)(3)(B)); United States v. Springfield, 829 F.2d 860, 862-63 (9th Cir.1987) (same with respect to involuntary-manslaughter conviction). We considered the possibility of using a case-by-case approach when reviewing the instant crime of conviction but declined to do so in light of our general commitment to deciding rules of law on categorical grounds. Amparo, 68 F.3d at 1225-26. 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.⁵

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)(1) 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.⁶

III

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 "an element the use, attempted use, or threatened use of physical force against the person of another." Thus, we decide whether the "catchall phrase" of U.S.S.G. § 4B1.1 applies to the crime of escape.

The general escape statute provides in pertinent part, "Whoever escapes or attempts to escape from . . . any institution or facility in which he is confined by direction of the Attorney General . . . shall, if the custody or confinement is by virtue of . . . [a] conviction of any offense . . . be fined under this title or imprisoned not more than five years, or both. . . ." 18 U.S.C. § 751(a). The statute does not differentiate between violent and non-violent escapes; the statutory definition of the crime runs the gamut from maximum-security facilities to non-secure halfway houses.

We think that the circumstances apparent in a walkaway escape are of an entirely different order of magnitude than escapes from jails and prisons. Residents of halfway houses have certain privileges of ingress and egress, do not live behind concrete walls and barbed wire, and are not under constant surveillance by armed guards. Those who leave without returning do not pose an automatic risk of danger and therefore do not categorically raise a serious potential risk of physical harm. Thus, convictions for walkaway escape could clearly take place "on the basis of conduct that did not present a serious potential risk of physical injury to another." Kelly, 422 F.3d at 893.

Kelly is instructive. In Kelly, we held that a prior conviction for attempting to elude a police vehicle did not constitute a crime of violence. Id. at...