U.S. v. Gay

• Decision Date: 18 May 2001
• Docket Number: No. 00-14729,00-14729
• Citation: 251 F.3d 950
• Parties: (11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DENNY GAY, Defendant-Appellant. Non-Argument Calendar
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 950

251 F.3d 950 (11th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DENNY GAY, Defendant-Appellant.

No. 00-14729

Non-Argument Calendar

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

May 18, 2001

Appeal from the United States District Court for the Middle District of Georgia. D.C. Docket No. 97-00011-CR-2-WLS-6

Before ANDERSON, Chief Judge, HULL and FAY, Circuit Judges.

PER CURIAM:

Denny Gay appeals his 162-month sentence resulting from his plea of guilty to possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). On appeal, Gay argues that the district court erred in refusing to hold an evidentiary hearing regarding the factual circumstances of his prior escape conviction. Gay also argues that the district court erred in treating him as a career offender using his prior escape conviction as one of the qualifying criteria. We affirm.

We review a district court's denial of an evidentiary hearing for abuse of discretion. United States v. Dynalectric Co., 859 F.2d 1559, 1580 (11th Cir. 1988), cert. denied, 490 U.S. 1006 (1989). We review a district court's factual findings for clear error and its application of the guidelines to those facts de novo. United States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998).

Upon review of the presentence investigation report and the sentencing transcript, and upon consideration of the briefs of the parties, we find no reversible error.

Denny Gay pled guilty to a superseding information that charged him with possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). According to the Presentence Investigation, an investigation was conducted by several state and federal drug enforcement agencies, targeting a methamphetamine trafficking organization responsible for the distribution of the drug from Florida to Georgia. The investigation revealed that Denny Gay, among other individuals, served as a distributor of the drug. In this position, Gay obtained quantities of the drug, used some of the drug personally, and sold a portion of the drugs to other people. While no contraband was seized as a result of this investigation, Gay and the government stipulated that Gay was accountable for at least 20 grams but less than 40 grams of a mixture containing methamphetamine.

Prior to Gay's sentencing hearing, the probation department prepared a PSI, recommending that he be classified as a career offender with an elevated base offense level of 32, rather than his original base offense level of 18. Gay objected to this classification and argued that, because the underlying facts of his prior escape conviction involved walking away from a non-secure community corrections facility, the offense did not constitute a violent crime. Gay also requested an evidentiary hearing to present evidence regarding the nature and circumstances of the escape.

After considering cases from other circuits as well as looking at the language of U.S.S.G. § 4B1.2(a)(2), the district court found that the escape was a "technical" one in that Gay had not "busted out in the sense with blazed guns and fighting people . . . or . . . even threatened or did anything to anyone." Nevertheless, the court determined that an escape conviction is an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another," and, as such, overruled Gay's objection. The court also concluded that, because the government was not contesting the fact that the escape charge was based upon Gay leaving a community corrections center without authorization, and because the law does not support a broad review of the circumstances of the escape, it would not grant Gay's motion for an evidentiary hearing.

Gay argues that the district court erred in refusing to hold an evidentiary hearing regarding the factual circumstances of his prior escape conviction. Gay asserts that the court mistakenly believed that it was precluded from holding such a hearing and believing that a hearing would be futile because all escapes inherently possess the "serious potential risk of physical injury to another" as contemplated by U.S.S.G. § 4B1.2(a)(2). Gay states that the court should not have relied on the holdings of other circuit courts in deciding whether escape constitutes a crime of violence because the courts did not have the same access to the underlying facts. Citing to a footnote in Walker v. Mortham, 158 F.3d 1177 (11th Cir. 1998), cert. denied, 528 U.S. 809 (1999), which examined the presumption existing in civil rights cases, Gay also asserts that the court should have treated his case like an employment discrimination claim and allowed him to rebut the presumption that escape constitutes a crime of violence.

In response, the government argues that no factual dispute existed, as the government did not challenge the PSI's description of the escape as a "walk-away" from a diversion center without authority, and, as such, that Gay has not shown how he was harmed by the court's refusal to conduct an evidentiary hearing. The government also asserts that, because this Court has held that courts should only look at the elements of an offense in determining whether an underlying conviction qualifies as a crime of violence for purposes of classifying a defendant as a career offender, the district court was prohibited from reviewing the underlying facts of the escape conviction.

As we have stated, a district court may only inquire into the conduct surrounding a conviction if ambiguities in the judgment make the crime of violence determination impossible from the face of the judgment, and then may only examine easily produced and evaluated court documents, including the judgment of conviction, charging papers, plea agreement, presentence report, and findings of the sentencing judge. United States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995). If no ambiguities exist, the guidelines prohibit the district court from reviewing the underlying facts of a conviction to determine whether it is a crime of violence for career offender purposes. United States v. Rucker, 171 F.3d 1359, 1362 (11th Cir.), cert. denied, 528 U.S. 976 (1999).

Gay was convicted of felony escape, in violation of O.C.G.A. § 16-10-52, which provides that a person commits the offense of escape when he or she is confined for a variety of reasons and "intentionally escapes from lawful custody or from any lawful place of lawful confinement," or "intentionally fails to return as instructed to lawful custody." O.C.G.A. § 16-10-52(a) (1982-2000). As this statute is not ambiguous on its face, the district court did not abuse its discretion when it declined to hold an evidentiary hearing on the underlying facts of the escape conviction. Regardless, the court and both parties agreed that the underlying facts involved a situation where Gay walked away from a diversion facility in a non-violent manner, and Gay failed to establish how any further review of "easily produced and evaluated court documents" would produce a different ruling. As such, the court did not abuse its discretion when it refused to conduct an evidentiary hearing on the prior escape conviction.

Gay also argues that the district court erred in treating him as a career offender by using his escape conviction as one of the qualifying criteria. Citing to no authority, Gay asserts that the district court unjustly decided that the offense of escape creates the potential risk of injury when so many other offenses also may possess an equal degree of danger, and that the court unfairly placed all escape situations into the same category. Gay points to the separate treatment of different types of escapes in U.S.S.G. § 2P1.1(b), as evidence that the guidelines acknowledge a difference between various types of escape. Gay admits that other circuits have found that the offense...