U.S. v. Clay

• Decision Date: 08 December 2010
• Docket Number: No. 09-4572,09-4572
• Citation: 627 F.3d 959
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Jesse CLAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

627 F.3d 959

UNITED STATES of America, Plaintiff-Appellee,

v.James Jesse CLAY, Defendant-Appellant.

No. 09-4572.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 22, 2010.

Decided: Dec. 8, 2010.

ARGUED: Matthew Segal, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellant. Edward R. Ryan, United States Attorney, Charlotte, North Carolina, for Appellee.

Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and JAMES C. DEVER, III, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Vacated and remanded by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge AGEE and Judge DEVER joined.

OPINION

HAMILTON, Senior Circuit Judge:

On February 5, 2009, James Clay (Clay) pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Thereafter, the district court sentenced him to sixty months' imprisonment. In calculating Clay's advisory sentencing range under the United States Sentencing Guidelines (Guidelines or USSG), the district court counted Clay's prior conviction for the offense of felony escape under Georgia law, see Ga.Code § 16-10-52(a), as a predicate crime of violence for purposes of setting Clay's base offense level at 20, pursuant to USSG § 2K2.1(a)(4)(A).

On appeal, Clay challenges his sentence as procedurally unreasonable, inter alia, on the ground that the district court erred in calculating his advisory sentencing range under the Guidelines by erroneously counting his conviction for the offense of felony escape under Georgia law as a predicate crime of violence under USSG § 2K2.1(a)(4)(A). We agree. Accordingly, we vacate Clay's sentence and remand for resentencing in accordance with this opinion.

I.

USSG § 2K2.1 is the Guidelines section applicable to calculate the advisory sentencing range under the Guidelines for a defendant convicted of a § 922(g) offense. Of particular relevance on appeal, USSG § 2K2.1(a)(4)(A) provides for a base offense level of 20, "if ... the defendant committed any part of the instant offensesubsequent to sustaining one felony conviction of ... a crime of violence...." Id. Application Note 1 of the Commentary to USSG § 2K2.1 provides: "For purposes of this guideline: ... 'Crime of violence' has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2." USSG § 2K2.1, comment. (n.1). USSG § 4B1.2(a), in turn, defines the term " 'crime of violence' " as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, 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. The language highlighted in bold is referred to in the relevant jurisprudence as "the Otherwise Clause."

Below, the Presentence Report (PSR) determined that Clay had committed his § 922(g) offense subsequent to sustaining one felony conviction for a crime of violence as the term "crime of violence" is found in USSG § 2K2.1(a)(4)(A), and therefore, recommended that the district court set Clay's base offense level at 20. The PSR identified Clay's 2003 conviction for felony escape under Georgia Code § 16-10-52(a) as the crime of violence. The PSR then reduced Clay's base offense level by 3 levels for acceptance of responsibility, see USSG § 3E1.1(a)-(b), resulting in a total offense level of 17. The PSR determined Clay's criminal history category to be VI. Based upon a total offense level of 17 and a criminal history category of VI, the PSR reported Clay's advisory sentencing range under the Guidelines as 51 to 63 months' imprisonment.

In the first of his two objections to the PSR, Clay objected to the PSR's recommendation to set his base offense level at 20. According to Clay, his felony escape offense did not qualify as a "crime of violence" as that term is found in USSG § 2K2.1(a)(4)(A), because "this is a walk away from a nonsecure facility." (J.A. 39) (sentencing hearing). The government directly disputed Clay's characterization of his felony escape offense as a walk away escape from a unsecured facility on the basis that Clay had also pled guilty to the offense of interference with government property, see Ga.Code Ann. § 16-7-24(a), which involved Clay damaging leg irons belonging to the Gainesville State Diversion Center and the State of Georgia, on the same day that he committed his felony escape offense.

In support of its position, the government submitted a copy of the two-page charging document (the Charging Document). The second page of this document set forth the totality of the allegations against Clay with respect to his felony escape offense and his interference with government property offense. Additionally, the government submitted Clay's petition to enter a guilty plea to these offenses and the respective criminal judgments (the Guilty Plea/Judgment Documents).

With respect to Clay's felony escape offense, the Charging Document alleged:

I, JASON J. DEAL, District Attorney of the Northeastern Judicial Circuit of Georgia, on behalf of the people of the State of Georgia, charge and accuse JAMES JESSE CLAY with the offense of ESCAPE (FELONY) for that the said accused in the County and State aforesaid, on the twentieth day of September, 2002, did unlawfully, having been charged with a felony and having been sentenced under the First Offender Act but prior to adjudication of guilt,escape from a place of lawful custody and confinement: to wit, the Gainesville State Diversion Center, contrary to the laws of this State, the good order, peace and dignity thereof.

(J.A. 169). Clay pled guilty to this charge. The corresponding criminal judgment described the offense only as "Escape." (J.A. 172).

With respect to Clay's interference with government property offense, the Charging Document alleged that, on September 20, 2002, Clay "did unlawfully damage government property, to-wit: leg irons, the property of Gainesville State Diversion Center and the State of Georgia...." (J.A. 169). The criminal judgment for this offense described it only as "Interference with Government Property." (J.A. 173). Clay's petition to enter a guilty plea offered no details regarding either offense. According to the government, Clay's conviction for interference with government property established that, at the time he committed his felony escape "he was shackled and in leg irons," (J.A. 51) (sentencing hearing), and thus, "was not in a walk away type camp," id. at 50.

In Clay's second objection to the PSR, he contended that if his first objection is sustained, his base offense level would decrease to 14, pursuant to USSG § 2K2.1(a)(6), and he would then be eligible to decrease his offense level to 6, pursuant to USSG § 2K2.1(b)(2), because he possessed the shotgun found under his bed, which was the subject of his § 922(g) offense, solely for lawful sporting purposes. According to Clay, he was entitled to the lawful sporting purposes reduction, because although he did not have a hunting license, his intent was to use the shotgun to hunt with his grandparents. As proof of his intent, Clay pointed to a statement by his landlord set forth in the PSR that Clay had asked her for permission to hunt on the rented property and a statement by his grandmother set forth in the PSR that the shotgun belonged to Clay's grandfather, her husband, and they planned to go hunting with Clay during their upcoming Thanksgiving visit with him. The crux of the government's response was that Clay failed to carry his burden of proving that he possessed the shotgun solely for lawful sporting purposes, because he did not possess a valid hunting license in either North Carolina or Georgia and, at the time he possessed the shotgun at issue, rabbit hunting season was not open in North Carolina.

At Clay's sentencing hearing, the district court heard argument from both sides with respect to Clay's two objections to the PSR. At the conclusion of such hearing, the district court overruled both objections and adopted the PSR "to be correct as written." (J.A. 53). Thus, the district court calculated Clay's advisory sentencing range under the Guidelines as 51 to 63 months' imprisonment.

In overruling Clay's first objection, the district court read the Charging Document as establishing that Clay was shackled in leg irons during the commission of his felony escape, which circumstance indicated to the district court "that it was not simply a walk away type of confinement at the time of the escape." (J.A. 53). Accordingly, in calculating Clay's sentencing range, the district court set his base offense level at 20, pursuant to USSG § 2K2.1(a)(4)(A).

In initially overruling Clay's objection to the PSR's failure to give him a lawful sporting purposes reduction, the district court stated during the sentencing hearing:

Two reasons, it is necessary to hunt-to legally hunt in the State of Georgia or surrounding states, to possess a valid hunting license.

And second, as a felon, he would not be entitled to possess the firearm, and thus, it would convincingly appear that the defendant was not legally possessing a firearm for the lawful purpose of hunting, for which he had no license, by his own admission.

(J.A. 53-54). At a later time during this same sentencing hearing, the government submitted the document signed by Clay in April 2002, acknowledging that he was prohibited by federal law from possessing firearms. The district court then told Clay that it did not understand how...