U.S. v. Charles, No. 07-40140-01-SAC.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtSam A. Crow
Citation566 F.Supp.2d 1229
PartiesUNITED STATES of America, Plaintiff, v. Ronald Eugene CHARLES, Jr., Defendant.
Docket NumberNo. 07-40140-01-SAC.
Decision Date23 July 2008
566 F.Supp.2d 1229
UNITED STATES of America, Plaintiff,
v.
Ronald Eugene CHARLES, Jr., Defendant.
No. 07-40140-01-SAC.
United States District Court, D. Kansas.
July 23, 2008.

Page 1230

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

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.


The case comes before the court on the defendant's unresolved objection to the presentence report ("PSR"). The defendant pleaded guilty to a single-count indictment charging felony possession of a firearm. The PSR recommends a base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2) for committing this offense after two felony convictions, one for a crime of violence and one for a controlled substance offense. With a total offense level of 21, after deducting the acceptance of responsibility adjustment, the guideline range is 57 to 71 months based on a criminal history category of four. The defendant's remaining unresolved objection is that his prior federal conviction for escape from custody is not a crime of violence in light of the Supreme Court's recent decision in Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).

By the terms of U.S.S.G. § 2K2.1(a)(2), if the defendant's possession of the firearm occurred "subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense," the defendant's base offense level is 24. The meaning of "crime of violence" here is the same as the term is used in the career offender provisions at U.S.S.G. § 4B1.2(a) and application note one. U.S.S.G. § 2K2.1, comment, n. 1. Section 4B1.2(a) defines a crime of violence as a federal or state felony offense, that:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

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(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.

Thus, the first definition requires a particular statutory element in the offense, and the second definition breaks down into a list of enumerated offenses or an offense involving conduct that presents a serious potential risk of physical injury.

For purposes of this case, the definition of "crime of violence" under U.S.S.G. § 4B1.2(a)(2) is virtually identical to the definition of "violent felony" found in the Armed Career Criminal Act, 18 U.S.C. § 924(e). See United States v. Moyer, 282 F.3d 1311, 1315 (10th Cir. 2002). Thus, the courts have employed the same approach in determining whether an offense meets these similar definitions. See, e.g., United States v. Krejcarek, 453 F.3d 1290, 1294 (10th Cir.2006); United States v. Moore, 420 F.3d 1218, 1220-21 (10th Cir.2005). The Supreme Court in Begay reiterated this general approach:

In determining whether this crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (adopting this "categorical approach"); see also James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1597, 167 L.Ed.2d 532 (2007) (attempted burglary is a violent felony even if, on some occasions, it can be committed in a way that poses no serious risk of physical harm).

128 S.Ct. at 1584. In other words, a court looks only to the fact of the conviction and the statutory elements of the offense and generally omits any consideration of the particular facts found in the record of conviction. Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); see United States v. Krejcarek, 453 F.3d at 1294. When a statute "is ambiguous, or broad enough to encompass both violent and nonviolent crimes, a court can look beyond the statute to certain records of the prior proceeding, such as the charging documents, the judgment, any plea thereto and findings by the sentencing court." United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir. 2005) (quotation and citations omitted); see United States v. Maldonado-Lopez, 517 F.3d 1207, 1209 (10th Cir.2008).

The defendant contends his federal conviction for escape from custody is not a crime of violence. In that case numbered 05-20103-01, the defendant pleaded guilty to count one of the indictment that charged him with violating 18 U.S.C. § 751(a) by escaping the custody of a halfway house to which he had been confined by the Bureau of Prisons. The 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.'" United States v. Avalos, 506 F.3d 972, 980 (10th Cir.2007) (quoting United States v. Patterson, 472 F.3d 767, 783 (10th Cir.2006), petition for cert. filed, ___ U.S.L.W. ___, (U.S. Dec. 27, 2006) (No. 06-10972)), petition for cert. filed, ___ U.S.L.W. ___, (U.S. Mar. 21, 2008) (No. 07-10063). In United States v. Turner, 285 F.3d 909, 916 (10th Cir.), cert. denied, 537 U.S. 895, 123 S.Ct. 180, 154 L.Ed.2d 163 (2002), the court explained that "[e]ven though initial circumstances of an escape may be non-violent, there is no way to predict what an escapee will do when encountered by the authorities. Every escape is a powder keg, which may or may not explode into violence." The defendant's

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objection opposes the established precedent in this circuit that an escape conviction plainly falls within the residual clause of the second definition for "crime of violence," that is, involving "conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2)

The defendant argues the Supreme Court's recent decision in Begay "effectively overruled" this line of Tenth Circuit precedent. While 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 a crime of violence. See United States v. Nichols, 563 F.Supp.2d 631 (S.D.W.Va.2008) ("Begay undermines the continued viability of Mathias" which is the Fourth Circuit precedent of United States v. Mathias, 482 F.3d 743 (4th Cir. 2007), petition for cert. filed, 76 U.S.L.W. 3046 (Jul. 12, 2007), holding that walkaway escapes are crimes of violence). In Begay, the Supreme Court held that a prior felony conviction for drunk driving ("DUI") under a New Mexico statute was not a "violent felony" under the ACCA. While assuming along with the lower courts "that DUI involves conduct that `presents a serious potential risk of physical injury to another,'" the Supreme Court found that DUI did not meet the second definition's residual clause1 because DUI "is simply too unlike the provision's listed examples for us to believe that Congress intended the provision to cover it." 128 S.Ct. at 1584.

In interpreting and defining the scope of the residual clause in the second definition, "or otherwise involves conduct that presents a serious potential risk of physical injury to another," the Supreme Court held that the offense not only must Involve conduct with this risk but must be "roughly similar in kind" to those crimes enumerated before this clause. 128 S.Ct. at 1585. The Court stated:

In our view, the provision's listed examples-burglary, arson, extortion, or crimes involving the use of explosives-illustrate the kinds of crimes that fall within the statute's scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that "presents a serious potential risk of physical injury to another." § 924(e)(2)(B)(ii). If Congress meant the latter, i.e., if it meant the statute to be all encompassing, it is hard to see why it would have needed to include the examples at all....

128 S.Ct. at 1584-85. The Court distinguished its recent decision in James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), as directed only at the similarity in the degree of risk:

Our recent case, James v. United States—where we considered only matters of degree, i.e., whether the amount of risk posed by attempted burglary was comparable to the amount of risk posed by the example crime of burglary—illustrates the difficulty of interpreting the examples in this respect, (citations omitted). Indeed, the examples are so far from clear in respect to the degree of risk each poses that it is difficult to accept clarification in respect to degree of risk as Congress' only reason for including them, (citation omitted).

128 S.Ct. at 1585. Applying basic rules of statutory construction, the Begay Court concluded:

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These considerations taken together convince us that, "`to give effect ... to every clause and word'" of this statute, we should read the examples as limiting the crimes that clause (ii) covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves, (citations omitted).

128 S.Ct. at 1585. The Court confirmed its construction was consistent with legislative history:

Prior to the enactment of the current language, the Act applied its enhanced sentence to offenders with "three previous convictions for robbery or burglary." Taylor, 495 U.S. at 581, 110 S.Ct. 2143. Congress sought to expand that definition to include both crimes against the person (clause (i)) an certain physically risky crimes against (clause (ii)). (citation omitted). When doing so, Congress rejected a broad proposal that would have covered every offense that involved a substantial risk of the use of "physical force against the person or property of another." Taylor, supra, at 583, 110 S.Ct. 2143.

128 S.Ct. at 1585-86. In sum, the holding in Begay is that a similarity in the degree of risk is not...

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5 practice notes
  • U.S. v. West, No. 06-4284.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 10, 2008
    ...id. at 1583, 1588. But that decision is not easily applied to convictions for other types of offenses. Accord United States v. Charles, 566 F.Supp.2d 1229, 1233 (D.Kan.2008) (noting "[t]he application of the Begay decision is hardly a simple proposition"). a. Begay's holding In the first pa......
  • Thomas Mink v. Susan Knox, No. 08-1250.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 19, 2010
    ...reviewing and approving the affidavit submitted in support of the search warrant-violated Plaintiff's constitutional rights. Mink II, 566 F.Supp.2d at 1229. In so construing the amended complaint, the district court erred. Title 42 U.S.C. § 1983 provides, in relevant part: Every person who,......
  • U.S. v. Rodriguez, No. 07 Cr 749 (SHS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 12, 2008
    ...courts have found other offenses to be ACCA predicates for reasons similar to those presented here. In United States v. Charles, 566 F.Supp.2d 1229, 1234-39, 2008 WL 2832172, at *5-9 (D.Kan. July 23, 2008), the court determined that escape from custody in violation of 18 U.S.C. § 751(a) is ......
  • U.S. v. Charles, No. 07-40140-01-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • October 27, 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 definit......
  • Request a trial to view additional results
5 cases
  • U.S. v. West, No. 06-4284.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 10, 2008
    ...id. at 1583, 1588. But that decision is not easily applied to convictions for other types of offenses. Accord United States v. Charles, 566 F.Supp.2d 1229, 1233 (D.Kan.2008) (noting "[t]he application of the Begay decision is hardly a simple proposition"). a. Begay's holding In the first pa......
  • Thomas Mink v. Susan Knox, No. 08-1250.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 19, 2010
    ...reviewing and approving the affidavit submitted in support of the search warrant-violated Plaintiff's constitutional rights. Mink II, 566 F.Supp.2d at 1229. In so construing the amended complaint, the district court erred. Title 42 U.S.C. § 1983 provides, in relevant part: Every person who,......
  • U.S. v. Rodriguez, No. 07 Cr 749 (SHS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 12, 2008
    ...courts have found other offenses to be ACCA predicates for reasons similar to those presented here. In United States v. Charles, 566 F.Supp.2d 1229, 1234-39, 2008 WL 2832172, at *5-9 (D.Kan. July 23, 2008), the court determined that escape from custody in violation of 18 U.S.C. § 751(a) is ......
  • U.S. v. Charles, No. 07-40140-01-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • October 27, 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 definit......
  • Request a trial to view additional results

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