U.S. v. Charles, 07-40140-01-SAC.

• Decision Date: 27 October 2009
• Docket Number: No. 07-40140-01-SAC.,07-40140-01-SAC.
• Citation: 667 F.Supp.2d 1246
• Parties: UNITED STATES of America, Plaintiff, v. Ronald Eugene CHARLES, Jr., Defendant.
• Court: U.S. District Court — District of Kansas

Page 1246

667 F.Supp.2d 1246

UNITED STATES of America, Plaintiff, v. Ronald Eugene CHARLES, Jr., Defendant.

No. 07-40140-01-SAC.

United States District Court, D. Kansas.

October 27, 2009.

Randy M. Hendershot, Office of United States Attorney, Topeka, KS, for Plaintiff.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

The defendant pleaded guilty to a single-count indictment charging felony possession of a firearm. The Presentence Investigation Report ("PSR") recommended a guideline sentencing range of 57 to 71 months based in part on U.S.S.G. § 2K2.1(a)(2), namely that this offense was after two felony convictions, one for a crime of violence and one for a controlled substance offense. The defendant objected that his prior federal conviction for escape from custody was not a crime of violence in light of the Supreme Court's recent decision of Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), which narrowed the residual clause definition for a crime of violence.

The district court overruled the defendant's objection and sentenced the defendant to 57 months of imprisonment, the bottom of the recommended guideline range. On appeal, the Tenth Circuit vacated the defendant's sentence and remanded the case for resentencing, because the Supreme Court's intervening decision in Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), "casts doubt as to whether Mr Charles's conviction under 28 U.S.C. § 751(a) was a crime of violence." United States v. Charles, 576 F.3d 1060, 1063 (10th Cir.2009).

Prior Decision

The district court's ruling on this sentencing objection appears in the published opinion, United States v. Charles, 566 F.Supp.2d 1229 (D.Kan.2008). Recognizing that the definition of a "crime of violence" under U.S.S.G. § 4B1.2(a)(2)¹ is "virtually identical" to one definition of a "violent felony" under 18 U.S.C. § 924(e),² the court followed the lead of others in employing the common approach used in such determinations. 566 F.Supp.2d at 1231. The court summarized the categorical approach of considering only the generic offense and its statutory elements, but it also recognized the modified approach when the statute "is ambiguous, or broad enough to encompass both violent and nonviolent crimes." 566 F.Supp.2d at 1231 (citing in part Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 1584, 170 L.Ed.2d 490 (2008), United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir.2005)).

The court observed that the defendant's prior conviction was for a violation of 18 U.S.C. § 751(a) for having escaped the custody of a halfway house. Id. Notwithstanding that "[t]he Tenth Circuit has repeatedly held that escape is categorically a crime of violence because it always constitutes conduct that presents a serious potential risk of physical injury to another," the defendant objected to this precedent and argued that the Supreme Court in Begay had "effectively overruled" it. 566 F.Supp.2d at 1231-32 (internal quotation marks and citations omitted). The court observed that "[w]hile it adds another test to the application of the residual clause, the holding in Begay does not necessarily overrule the Tenth Circuit's characterization of escape as crime of violence." Id. at 1232. The court found that "the holding in Begay is that a similarity in the degree of risk is not enough for a crime to fall within the residual clause but that the crime must be `roughly similar, in kind as well as in degree of risk posed, to the examples themselves.'" 566 F.Supp.2d at 1233 (quoting Begay, 128 S.Ct. at 1585).

The district court considered the following:

The application of the Begay decision is hardly a simple proposition. Begay does not offer an expanded exposition upon what it means for a crime to be "roughly similar in kind as well as in degree of risk posed" to the enumerated offenses. 128 S.Ct. at 1585. As far as the "one pertinent and important" difference between DUI and the listed offenses, the Court focused on the kind of conduct "typically" involved in the latter: "purposeful, violent and aggressive." Id. at 1586.

566 F.Supp.2d at 1233 (footnoted omitted). The court first concluded the Tenth Circuit had considered Begay as not overturning the precedent of escape being a crime of violence. Id. at 1236 (citing United States v. Ellis, 525 F.3d 960, 965 (10th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 318, 172 L.Ed.2d 230 (2008)). Alternatively, the court found that the defendant's escape conviction for unauthorized departure from a halfway house was "roughly similar in kind as well as in degree of posed risk to the listed offense of burglary." 566 F.Supp.2d at 1236. The court reasoned:

An offender of 18 U.S.C. § 751(a) acts purposefully and deliberately by knowingly leaving the confines of his federal custody without the permission of federal authorities. This roughly parallels the purposefulness of a burglar who purposefully and knowingly enters upon another's property without authority. The kind of deliberate conduct involved in an escape is not so far removed from the "deliberate kind of behavior associated with violent criminal use of firearms." Begay, 128 S.Ct. at 1587. While a burglar also has the intent to commit a crime, an escapee knows his actions will be resisted by federal authorities specifically charged with the responsibility of doing so. Thus, an escapee typically would calculate the risk of this confrontation in deliberately leaving federal custody.

... The typical conduct involved in escaping from federal custody fits the meaning of aggressive as well as the typical conduct involved in burglary. An escapee takes the offensive in defying the authority of the federal officers to confine him. In doing so, the offender knows his actions will be considered hostile by the responsible federal officers who will be expected to resist, oppose and resolve the hostile situation with all reasonable force. Similarly, a burglar takes the offensive in trespassing upon another's property for the purpose of taking something while knowing that any occupant of the property would likely consider the burglar's actions to be a hostile action.

As discussed above, the Supreme Court in Taylor identified the violent aspect of a burglary as the possible confrontation between the burglar and the occupant or someone else investigating. 495 U.S. at 588, 110 S.Ct. 2143. The Court went so far as to recognize that "the offender's own awareness of this possibility may mean that he is prepared to use violence if necessary to carry out his plans or to escape." Id. More recently, the Supreme Court in James described this same possible confrontation as the "main risk of burglary." James v. United States, , 127 S.Ct. [1586] at 1594 [167 L.Ed.2d 532 (2007)]. Thus, a burglar's entry need not be violent, for it creates the possibility of violence should the burglar confront an occupant, officer or bystander. This same kind of potential for violence exists with an escape offense, but it typically exists to a greater degree. With an escape, the offender may not need violence to leave his confinement, but his offense is not over until he is confronted by an officer in a situation typically accompanied by force and violence. See United States v. Bailey, 444 U.S. [394] at 413, 100 S.Ct. 624 [62 L.Ed.2d 575 (1980)] ("escape from federal custody as defined in 751(a) is a continuing offense and ... an escapee can be held liable for failure to return to custody as well as for his initial departure."). As the defendant's plea agreement reflects, the defendant was arrested over two months after his escape from the halfway house. If instead of surrendering immediately to the federal authorities, the escapee tries to avoid capture and arrest, then he necessarily contemplated the possible need for violence to avoid arrest.

The court is satisfied that the offense of escape in violation of 18 U.S.C. § 751(a) meets the trio of adjectives-"purposeful, violent and aggressive conduct"-as apparently defined and applied in Begay. The risk of confrontation posed by an escape is roughly similar to the risk of confrontation in burglary.

566 F.Supp.2d at 1237-39. The decision correctly and fully states the court's application of the Supreme Court's holding in Begay to a § 751(a) conviction for escape from a halfway house.

Appeal

On appeal, the government joined the defendant in requesting that the defendant's "walkaway" escape not be treated as a crime of violence. United States v. Charles, 576 F.3d 1060, 1066 (10th Cir. 2009). Because the government's agreement with the defendant does not control a court's interpretation of a federal law, the panel considered the effect of Chambers upon this Circuit's precedent. 576 F.3d at 1066-67. "Before Chambers, the categorization of an escape conviction was well-settled in this Circuit, because we held that all escape convictions were `crimes of violence' under § 4B1.2." 576 F.3d at 1067 (citations omitted). "Thus, pre-Chambers we would likely have determined, as the district court did, that Mr. Charles's walkaway from a halfway house under § 751(a) constituted `purposeful and aggressive' conduct that is `roughly similar to the risk of confrontation in burglary.'" Id. at 1068 (citations omitted).

As observed by the panel, the holding in Chambers is that a failure to report conviction is not a violent felony because "`it does not involve conduct that presents a serious potential risk of physical injury to another,'" 576 F.3d at 1068 (quoting Chambers, 129 S.Ct. at 691), and because it "represent[s] `a form of inaction, 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 engages in certain forms of extortion,'" id. (quoting Chambers, 129 S.Ct. at 691-92). The panel recognized that the Court in Chambers did not directly discuss "walkaway" escapes...