U.S. v. Ford

Decision Date18 March 2009
Docket NumberNo. 08-5091.,08-5091.
Citation560 F.3d 420
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Lyndale FORD, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

ON BRIEF: Andrew Martin Stephens, Andrew M. Stephens & Associates, Lexington, Kentucky, for Appellant. Charles P. Wisdom, Jr., Robert M. Duncan, Jr., Assistant United States Attorneys, Lexington, Kentucky, for Appellee.

Before: MERRITT, COLE and SUTTON, Circuit Judges.

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 § 4B1.1(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. § 4B1.1(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." Id. § 4B1.1(a). A "crime of violence" is an offense that warrants at least a year in prison and 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." 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 type of conviction, everyone agrees, does not contain a use-of-force element, and it is not a burglary-of-a-dwelling, arson, extortion or use-of-explosives offense. That leaves the possibility that the offense "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. Two inquiries guide our application of the residual clause. One, does the crime present a serious potential risk of violence akin to the listed crimes? See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1594-98, 167 L.Ed.2d 532 (2007). Two, does the crime involve the same kind of "purposeful, violent, and aggressive conduct" as the listed crimes? Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 1586, 170 L.Ed.2d 490 (2008); see also Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 692, 172 L.Ed.2d 484 (2009). That an offense presents a risk of physical injury to others, as Begay demonstrates, does not by itself suffice to show that it is a crime of violence. Otherwise, drunk driving would be a crime of violence, and Begay makes clear that it is not. Begay, 128 S.Ct. at 1583; see United States v. Templeton, 543 F.3d 378, 383 (7th Cir.2008).

In answering these questions, we treat a "crime of violence" under § 4B1.1(a) of the guidelines the same as a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1); see United States v. Houston, 187 F.3d 593, 594-95 (6th Cir.1999), because both laws share essentially the same definitions (if not the same titles), compare U.S.S.G. § 4B2.1(a) with 18 U.S.C. § 924(e)(2)(B). And in determining the nature of a defendant's prior conviction, we apply a "categorical" approach, meaning that we look at the statutory definition of the crime of conviction, not the facts underlying that conviction, to determine the nature of the crime. Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Save, that is, in one instance: If it is possible to violate a criminal law in a way that amounts to a crime of violence and in a way that does not, we may look at the indictment, guilty plea and similar documents to see if they "necessarily" establish the nature of the prior offense. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

Kentucky criminalizes several types of "escape." Ford was spared the first one— first-degree escape—which covers "escapes from custody or a detention facility by the use of force or threat of force against another person." Ky.Rev.Stat. § 520.020(1). Yet he was convicted of second-degree escape, a broadly worded offense that covers any other "escape[] from a detention facility" or "escape[] from custody" by an individual "charged with or convicted of a felony." Id. § 520.030(1). To violate this provision, one need only leave "when the departure is unpermitted" or fail to return "following a temporary leave granted for a specific purpose or for a limited period." Id. § 520.010(5). A "detention facility" includes "any building ... used for the confinement of a person: (a) Charged with or convicted of an offense; (b) Alleged or found to be delinquent; (c) Held for extradition or as a material witness; or (d) Otherwise confined pursuant to an order of court." Id. § 520.010(4). And "custody" includes any "restraint by a public servant pursuant to a lawful arrest, detention, or an order of court for law enforcement purposes," excluding only "supervision of probation or parole or constraint incidental to release on bail." Id. § 520.010(2). (Kentucky also has a third-degree offense not relevant here, which applies to individuals, regardless of their charged or convicted offenses, who "escape[] from custody." Id. § 520.040.)

All said, a conviction for second-degree escape covers everything from a felon who breaks out of a maximum-security prison to one who fails to report to a halfway house. The crime at hand—a "walkaway" escape, U.S. Letter Br., Feb. 10, 2009, at 2—falls somewhere in between.

Under Sixth Circuit law at the time of Ford's sentencing, as the district court correctly recognized, a "walkaway" escape constituted a crime of violence. In United States v. Bailey, 510 F.3d 562, 566 (6th Cir.2007), we held that second-degree escape under Kentucky law is a crime of violence, and we did so in the context of a defendant who claimed merely to have "walk[ed] away from a halfway house." 510 F.3d at 565 (internal quotation marks omitted).

Since then, however, the Supreme Court decided Chambers, which held that one type of escape conviction under Illinois law—a "failure to report for penal confinement"—is not a "violent felony" under the Armed Career Criminal Act. 129 S.Ct. at 689; see 18 U.S.C. § 924(e); 720 Ill.Comp. Stat. 5/31-6(a). Illinois criminalized (1) escape from a penal institution, (2) escape from the custody of an employee of a penal institution, (3) failure to report to a penal institution, (4) failure to report for periodic imprisonment, (5) failure to return from furlough, (6) failure to return from work and day release and (7) failure to adhere to the conditions of home confinement. 720 Ill.Comp. Stat. 5/31-6(a). The Court construed the Illinois law as encompassing at least two distinct categories of crimes— escape (1 and 2) and failure to report (3 through 6)—and possibly a third—failing to abide by home-confinement conditions (7). Chambers, 129 S.Ct. at 691. "[S]upport[ing] the intuitive belief that failure to report does not involve a serious risk of physical injury," the court reasoned, is the absence of empirical evidence showing that failure-to-report offenses lead to physical injury. Id. at 692. Nor, the Court added, is the offense similar in kind to the listed crimes of violence, as it is "a far cry from the purposeful, violent, and aggressive conduct potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion." Id. (internal quotation marks omitted).

Chambers modifies circuit law. Until now, we have taken the view that all escape offenses—from a failure to report at one end of the spectrum to a breakout at the other—constitute crimes of violence. See Bailey, 510 F.3d at 566; United States v. Esteppe, 483 F.3d 447, 451 (6th Cir. 2007); United States v. Harris, 165 F.3d 1062, 1067-68 (6th Cir.1999); United States v. Anglin, 169 Fed.Appx. 971, 975 (6th Cir.2006); United States v. Jackson, 63 Fed.Appx. 839, 843 (6th Cir.2003); United States v. Roberts, 59 Fed.Appx. 86, 88-89 (6th Cir.2003); United States v. Rodgers, No. 99-7776, 2000 WL 1434706, *4-5 (6th Cir. Sept. 19, 2000); see also United States v. Goodman, 519 F.3d 310, 317-18 (6th Cir.2008); United States v. Lancaster, 501 F.3d 673, 678 (6th Cir. 2007); Houston, 187 F.3d at 594-95. After Chambers, it is not that clear-cut. Chambers establishes that at least one type of escape offense—a failure to report—is not a crime of violence. And that conclusion requires us to modify our prior decisions suggesting that all manner of escape convictions under Kentucky law (or for that matter other States' laws), including failures to report, constitute crimes of violence.

Chambers, it seems to us, also undermines the notion that a "walkaway" conviction is a crime of violence. In the context of the Illinois law at issue, it is true, Chambers appeared to divide escape convictions into just "two separate crimes, namely escape from custody on the one hand, and a failure to report on the other." 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...

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