510 F.3d 562 (6th Cir. 2007), 06-5576, United States v. Bailey

Docket Nº:06-5576.
Citation:510 F.3d 562
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Terrell R. BAILEY, Defendant-Appellant.
Case Date:December 13, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 562

510 F.3d 562 (6th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Terrell R. BAILEY, Defendant-Appellant.

No. 06-5576.

United States Court of Appeals, Sixth Circuit.

Dec. 13, 2007 [*]

Argued: Sept. 18, 2007.

Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 05-00038-David L. Bunning, District Judge.

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ARGUED:

Jessica A. Dipre, Dinsmore & Shohl, Cincinnati, Ohio, for Appellant.

Andrew Sparks, Assistant U.S. Attorney, Lexington, Kentucky, for Appellee.

ON BRIEF:

Michael J. Newman, Jennifer K. Swartz, Dinsmore & Shohl, Cincinnati, Ohio, for Appellant.

Charles P. Wisdom, Jr., David P. Grise, Assistant U.S. Attorney, Lexington, Kentucky, for Appellee.

Before: MOORE and GRIFFIN, Circuit Judges; and TARNOW, District Judge.[**]

GRIFFIN, J., , in which MOORE, J. (p. 569), and TARNOW, D.J. (p. 569), joined and delivered separate concurring opinions.

OPINION

GRIFFIN, Circuit Judge.

Defendant Terrell R. Bailey appeals his convictions and sentences for possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1); possession

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of a firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A)(i); and being a convicted felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Because of his prior convictions for drug trafficking and second-degree escape (KY.REV.STAT. § 520.030), the district court sentenced defendant as a career offender under the Sentencing Guidelines. On appeal, Bailey argues that his prior Kentucky state court conviction for second-degree escape does not qualify for a career offender enhancement; there was insufficient evidence to support his convictions; and the district court erred in enhancing his Guidelines offense level after finding that he had perjured himself at trial. For the reasons that follow, we affirm defendant's convictions and sentences.

I.

On November 7, 2004, Terrell Bailey was driving a stolen car in Covington, Kentucky. A Covington police officer identified the stolen car and attempted to stop Bailey. Defendant refused to stop and was eventually apprehended while attempting to flee into Ohio.

After Bailey was arrested, the officers searched him and, in the process, discovered two baggies of crack cocaine in his possession. One bag contained 9.41 grams and the other 5.50 grams. The officers also found two cellular telephones with Bailey, and a loaded .357 Magnum and empty holster under his seat in the car. The handgun had not been in the car when it was stolen. Elizabeth Stanford, age 17, was the only passenger in the car. At trial, she testified that she was not the owner of the handgun, and that she had told the police (through a written statement) that Bailey put the gun under the seat.1

A federal grand jury indicted Bailey, charging him with possession with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(i), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On January 5, 2006, following a three-day trial, a jury convicted Bailey on all charges.

The district court sentenced Bailey to 360 months on the distribution conviction to be served concurrently with 120 months on the conviction for being a felon in possession of a firearm, followed by a consecutive sentence of 60 months for possession of a firearm in furtherance of drug trafficking.

Bailey timely appealed.

II.

Defendant was sentenced as a career offender pursuant to U.S. SENTENCING GUIDELINES MANUAL § 4B1.1.2 The Guidelines section states, in pertinent part:

(a) 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

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felony convictions of either a crime of violence or a controlled substance offense.

Id.

Bailey was 23 years old at the time of the arrest and the instant conviction is a controlled substance felony offense. In addition, Bailey had a prior felony conviction for trafficking in a controlled substance, and a Kentucky state conviction for second-degree escape in violation of KY. REV. STAT. § 520.030. However, defendant asserts that he does not meet the third element required for career offender enhancement. Specifically, he argues that the district court erred by considering his Kentucky second-degree escape conviction to be a "crime of violence" for purposes of § 4B1.1.

Bailey contends that his escape offense was "a far cry from a crime of violence." According to him, he "merely walked away from a halfway house; no violence was committed or threatened, and the escape charge was not filed until Bailey was in custody on another unrelated charge ...." Defendant argues that "[e]ven the most limited factual inquiry" into his escape would reveal that it was not violent.

The government responds by asserting that we are forbidden from conducting a "broad factual inquiry" into the circumstances surrounding a prior conviction and must instead rely on a "categorical approach." We agree. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and United States v. Montanez, 442 F.3d 485, 489 (6th Cir. 2006) (and cases cited therein). As we stated in Montanez, 442 F.3d at 489:

Under the categorical approach, "it is not only impermissible, but pointless, for the court to look through to the defendant's actual criminal conduct." Butler, 207 F.3d at 843. This approach "avoids the subsequent evidentiary enquiries into the factual basis for the earlier conviction." Shepard, 125 S.Ct. at 1259. "Generally speaking, only the fact of the prior conviction and the statutory definition of the predicate offense are used to determine whether a prior conviction is a controlled substance offense." Galloway, 439 F.3d 320, at 323 (citations omitted). If, however, the categorical approach fails to be determinative, a sentencing court may look to the "charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented," Shepard, 125 S.Ct. at 1257, in order to determine whether the prior crime qualifies as a controlled substance offense. See also Galloway, 439 F.3d 320, at 323 (noting that although Shepard applied to review under the Armed Career Criminal Act, it "[b]y extension" applies to review under Guideline section 4B1.1).

In the present case, the categorical approach is determinative, and the appellate record does not include the charging documents or other court records pertaining to the escape conviction.

In United States v. Harris, 165 F.3d 1062, 1067-68 (6th Cir. 1999), we held that the Tennessee escape statute was categorically a "crime of violence" for purposes of the career offender enhancement. In doing so, we explicitly adopted the Tenth Circuit's rationale from United States v. Gosling, 39 F.3d 1140 (10th Cir. 1994), which emphasized that "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." Id. at 1142.

Thereafter, in United States v. Esteppe, 483 F.3d 447, 451 (6th Cir. 2007), we applied Harris to hold that a violation of the Kentucky escape statute was also a "crime of violence." However, the Esteppe court

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did not specify whether the prior conviction at issue involved first- or second-degree escape. Nonetheless, in United States v. Jackson, 63 Fed.Appx. 839 (6th Cir. 2003) (unpublished), a panel of this court ruled that Kentucky's second-degree escape statute was a crime of violence. The Jackson court stated that it was "bound by this circuit's directive in Harris" to conclude that second-degree escape was a crime of violence. Id. at 843.

Moreover, in United States v. Lancaster, 501 F.3d 673 (6th Cir. 2007), we held that Kentucky's second-degree escape statute was a "violent felony" for purposes of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). In doing so, we relied heavily on the Harris rationale. Lancaster, 501 F.3d at 676-78. Lancaster noted that, "[a]lthough 'crime of violence' and 'violent felony' are terms of art whose definitions are not interchangeable, the operative language under § 4B1.2's definition of 'crime of violence' is identical to the language used to define 'violent felony' under 18 U.S.C. § 924." Id. at 676 n.2 (citation omitted).

The same rationale used in Lancaster applies to the instant case. Kentucky's second-degree escape statute is a crime of violence under § 4B1.1 for the same reasons that it is a violent felony under ACCA. This conclusion is not only consistent with Lancaster, it is presupposed by it. Lan...

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