U.S. v. Lancaster

• Citation: 501 F.3d 673
• Decision Date: 31 August 2007
• Docket Number: No. 06-5668.,06-5668.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Collis Paul LANCASTER, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

501 F.3d 673

UNITED STATES of America, Plaintiff-Appellee, v. Collis Paul LANCASTER, Jr., Defendant-Appellant.

No. 06-5668.

United States Court of Appeals, Sixth Circuit.

Submitted: June 1, 2007.

Decided and Filed: August 31, 2007.

ON BRIEF:

M. Dianne Smothers, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. James W. Powell, Assistant United States Attorney, Jackson, Tennessee, for Appellee.

Before: MOORE and GRIFFIN, Circuit Judges; McKINLEY, District Judge.^*

OPINION

GRIFFIN, Circuit Judge.

Defendant Collis Paul Lancaster, Jr. appeals his sentence of 188 months of incarceration. On appeal, Lancaster argues that the district court erred in determining that his prior Kentucky state conviction for second-degree escape under KY.REV.STAT. § 520.030 (2006) is a "violent felony" as defined in 18 U.S.C. § 924(e)(2)(B) and therefore improperly sentenced him as an armed career criminal. Defendant argues further that the district court erred in classifying him as an armed career criminal because his prior criminal convictions were not admitted nor submitted to the jury and proven beyond a reasonable doubt. Finally, he asserts that his sentence is unreasonable.

For the reasons set forth below, we affirm. In doing so, we hold, inter alia, that a Kentucky state conviction for second-degree escape is a "violent felony" for purposes of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e).

I.

Lancaster was indicted on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and one count of possessing marijuana with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Later, defendant pleaded guilty to both counts. At the time of his indictment, Lancaster's criminal history included two Tennessee state court convictions for aggravated assault and a Kentucky state court conviction for second-degree escape.

At his sentencing hearing, Lancaster objected to the recommendation contained in the presentence investigation report ("PSR") that he qualified as an armed career criminal because he has three prior convictions for violent felonies within the meaning of 18 U.S.C. § 924(e). Defendant argued that his prior Kentucky conviction for second-degree escape should not qualify as a "violent felony." The district court overruled Lancaster's objections and sentenced him to a term of 188 months of incarceration. This timely appeal followed.

II.

We review de novo the district court's ruling that Lancaster is eligible to be sentenced as an armed career criminal, United States v. Flores, 477 F.3d 431, 434 (6th Cir.2007), and review the district court's sentence determination for "reasonableness." United States v. Cage, 458 F.3d 537, 540 (6th Cir.2006). The government bears the burden of establishing that a conviction qualifies for an ACCA sentence enhancement. United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005).

III.

First, Lancaster argues that the district court erred in determining that his prior conviction for second-degree escape is a predicate offense under the ACCA, 18 U.S.C. § 924(e). In determining whether a defendant's conviction for second-degree escape is a violent felony for purposes of the ACCA, we take a categorical approach, looking "only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions" to determine whether a sentence should be enhanced. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); Flores, 477 F.3d at 434; United States v. Armstead, 467 F.3d 943, 947 (6th Cir.2006).

The ACCA provides that a defendant convicted of violating 18 U.S.C. § 922(g) who has three prior convictions for a "violent felony" or a "serious drug offense," committed on separate occasions, is subject to a mandatory minimum sentence of 15 years of imprisonment. 18 U.S.C. § 924(e)(1). The statute defines "violent felony" as follows:

[T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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....

18 U.S.C. § 924(e)(2)(B). Lancaster concedes that his two convictions for aggravated assault qualify as predicate offenses under § 924(e), but argues that the district court erroneously considered his second-degree escape conviction to qualify as a violent felony.

"A person is guilty of escape in the first degree when he escapes from custody or a detention facility by the use of force or threat of force against another person." KY.REV.STAT. § 520.020 (2006). Kentucky's second-degree escape statute, on the other hand, provides that "[a] person is guilty of escape in the second degree when he escapes from a detention facility or, being charged with or convicted of a felony, he escapes from custody." KY.REV.STAT. § 520.030 (2006).¹ Lancaster contends that because Kentucky's statutes distinguish between escapes involving the use of force (first degree) and escapes not involving force (second degree), his conviction for second-degree escape should not qualify as a violent felony under § 924(e). We disagree.

Until recently, we had consistently regarded the crime of escape to be a violent felony within the meaning of 18 U.S.C. § 924(e)(2)(B) because it involves conduct that presents a serious potential risk of physical injury to others. In United States v. Harris, 165 F.3d 1062, 1067-68 (6th Cir.1999), we held that a conviction for violating former TENN.CODE ANN. § 39-5-706, which made 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," was a crime of violence under U.S.S.G. § 4B1.2(1).² In so doing, we adopted the following rationale:

Every escape scenario is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so. * * * A defendant who escapes from a jail is likely to possess a variety of supercharged emotions, and in evading those trying to recapture him, may feel threatened by police officers, ordinary citizens, or even fellow escapees. Consequently, violence could erupt at any time. Indeed, even in a case where a defendant escapes from a jail by stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody.

Id. at 1068 (emphasis added) (quoting United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.1994)). We then applied the Harris rationale to hold that a conviction for violating a Tennessee statute which forbade "escaping or attempting to escape while confined in a county workhouse or jail upon any charge of or conviction of a criminal offense" was a violent felony for purposes of the ACCA. United States v. Houston, 187 F.3d 593, 594 (6th Cir.1999).

Harris and Houston compel a similar result here. Kentucky's second-degree escape statute is substantially similar to the statutes at issue in Harris and Houston because neither statute limited punishment to escapes involving the use of force. Moreover, the reasoning adopted in Harris undercuts Lancaster's argument, because it focuses on the possibility of violence that is inherent to "every escape" rather than on the means used by the defendant in attempting the escape.

We note that our court has specifically addressed KY. REV. STAT. § 520.030's applicability to 18 U.S.C. § 924(e), albeit in unpublished decisions. In United States v. Howard, 216 Fed.Appx. 463 (6th Cir. 2007) (unpublished), the defendant-appellant had five qualifying convictions for ACCA purposes, including two separate convictions for first-degree escape and a third conviction for second-degree escape. We rejected the defendant's argument that his convictions for escape were not predicate offenses under § 924(e):

Defendant argues ... that the prior escape convictions are not violent felonies. In Kentucky, "[a] person is guilty of escape in the first degree when he escapes from custody or a detention facility by the use of force or threat of force against another person." KY.REV.STAT. ANN. § 520.020. Second-degree escape occurs when a person "escapes from a detention facility or, being charged with or convicted of a felony, he escapes from custody." KY.REV.STAT. ANN. § 520.030. Under the categorical approach, defendant's first-degree escape convictions constitute violent felonies because the offense contains the element of use or threatened use of force. Additionally, all of defendant's escape convictions constitute violent felonies because escape carries a serious risk of potential physical injury if law enforcement or others attempted to interfere with an escape or retake an escapee.

Id. at 475 (citing Houston, 187 F.3d at 594-95; Harris, 165 F.3d at 1068). In addition, we have held that KY.REV.STAT. ANN. § 520.030 is a crime of violence for purposes of U.S.S.G. § 4B1.1. United States v. Jackson, 63 Fed.Appx. 839, 842-43 (6th Cir.2003) (unpublished). Although Howard and Jackson are unpublished, and therefore not precedentially binding under the doctrine of stare decisis, Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 376 n. 4 (6th Cir.2007), they are persuasive and consistent with our reasoning in Harris.

Also, in United States v. Esteppe, 483 F.3d 447, 451 (6th Cir.2007), we held that a...