U.S. v. Lowery

• Decision Date: 03 March 2009
• Docket Number: Criminal Action No. 2:08cr52-MHT.
• Citation: 599 F.Supp.2d 1299
• Parties: UNITED STATES of America v. Andrew O'Neal LOWERY.
• Court: U.S. District Court — Middle District of Alabama

599 F.Supp.2d 1299

UNITED STATES of America v. Andrew O'Neal LOWERY.

Criminal Action No. 2:08cr52-MHT.

United States District Court, M.D. Alabama, Northern Division.

March 3, 2009.

Michael J. Petersen, Federal Defender, Federal Defenders, Middle District of Alabama, Montgomery, AL, for Andrew O'Neal Lowery.

Kent B. Brunson, Tommie Brown Hardwick, U.S. Attorney's Office, Montgomery, AL, for United States of America.

OPINION AND ORDER

MYRON H. THOMPSON, District Judge.

The Armed Career Criminal Act (ACCA) requires courts to impose a minimum sentence of 15 years in prison for any person possessing a firearm who has three previous convictions for a "violent felony" or "serious drug offense." 18 U.S.C. § 924(e). Because of the many defendants sentenced under this lengthy, mandatory provision and because of the surprisingly broad reach given to the ACCA by some courts, significant scrutiny has been given recently to the interpretation of the term "violent felony."

The Supreme Court has, in recent terms, decided three cases interpreting the provision: Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008); and James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). In the wake of the Supreme Court's intervention, the Eleventh Circuit Court of Appeals has recognized that its previous approach to defining "violent felony" has been replaced by the test outlined in Begay. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.2008) ("[W]here the Supreme Court has clearly set forth a new standard to evaluate which crimes constitute "violent felonies" . . . our prior panel precedent . . . has been undermined to the point of abrogation."). More recently, the Eleventh Circuit has culled from the Supreme Court's new decisions a freshly minted three-step approach for determining if a prior conviction qualifies as a predicate "violent felony" for the purposes of the ACCA. United States v. Harrison, 558 F.3d 1280, 2009 WL 395237 (11th Cir.2009).

It is within this context that the court must determine whether defendant Andrew O'Neal Lowery's prior conviction for escape, 3rd degree, pursuant to 1975 Ala. Code § 13A-10-33, is a "violent felony" within the meaning of the ACCA. The court holds that it is not.

I. BACKGROUND

On the evening of December 13, 2007, Lowery had consumed two small bottles of wine and was shooting a gun at squirrels behind a house in a trailer park in Greenville, Alabama. Police arrested him for public intoxication. Lowery was later indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Lowery admitted to possessing the firearm and pled guilty.

The government now seeks to classify three of Lowery's prior convictions—state convictions for assault (2nd degree), robbery (3rd degree), and escape (3rd degree)—as "violent felonies." That classification would require this court, under the ACCA, to sentence Lowery to at least 15 years in prison. The only dispute concerns the conviction under Alabama law for escape, 3rd degree. Lowery admits that the other convictions qualify as ACCA predicates.

II. DISCUSSION

The relevant portion of the ACCA defines "violent felony" as a felony that:

"(i) has an element the use, attempted use, or threatened use of physical force against the person of another; or

"(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. ..."

18 U.S.C. § 924(e)(2)(B) (emphasis added). No party has suggested that the crime of escape, 3rd degree, involves the use of physical force (as required by subsection (i)). Similarly, escape, 3rd degree, is not one of the enumerated crimes listed in subsection (ii). Thus, the question here is whether the federal statute, through the portion highlighted above (that is, the provision's residual clause), possesses such reach as to include § 13A-10-33 of the 1975 Ala.Code.

As indicated above, the Eleventh Circuit has now established a three-step inquiry for determining whether a crime falls under the ACCA's residual clause: "First, what is the relevant category of crime, determined by looking to how the crime is ordinarily committed? Second, does that crime pose a `serious potential risk of physical injury' that is similar in degree to the risks posed by the enumerated crimes? Third, is that crime similar in kind to the enumerated crimes?" Harrison, 558 F.3d at 1286-87, 2009 WL 395237, at *5.

The first step requires that the court examine the elements of the predicate offense at issue in order to understand how it is committed in the generic sense. Harrison, 558 F.3d at 1285, 2009 WL 395237, at *3. This approach is dictated by the maxim that courts "look only to the fact of conviction and the statutory definition of the prior offense." Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Thus, the term "violent felony" is a term of art, and it is best understood not as having any colloquial meaning, but rather, as carving out technical categories of crimes.

If this "categorical" approach yields ambiguous results—that is, if the fact of conviction and the statutory elements are insufficient to settle the question one way or the other—the court would then be permitted to examine certain limited sources (for example, a state-court charging document or plea colloquy) to determine the underlying facts of a conviction as necessarily proven to the state court. Shepard v. United States, 544 U.S. 13, 19-26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); United States v. Llanos-Agostadero, 486 F.3d 1194, 1197 (11th Cir.2007). The prior felony could still be a "violent felony" if these other dispositive evidentiary sources showed that the conviction "necessarily rested" on the facts that identify the felony to be violent. Shepard, 544 U.S. at 21, 125 S.Ct. 1254. Thus, three possibilities exist: first, § 13A-10-33 could be one in which the elements criminalize conduct that necessarily satisfies the ACCA's residual clause, making the statute eligible as a "violent felony"; second, the statute could be one in which the elements themselves do not constitute conduct that satisfies the residual clause, making the statute, as a category of conduct, ineligible to be a "violent felony"; or, third, the statute could require, depending on the case, elements which would establish a "violent felony" or elements which would not, thus necessitating a further inquiry into the conduct with which the defendant was actually charged and necessarily convicted.¹

The Alabama statute for 3rd degree escape, far from being a lengthy tome, quite simply criminalizes "escapes or attempts to escape from custody." 1975 Ala.Code § 13A-10-33.² In contrast, § 13A-10-31 (escape, 1st degree) captures escape when a person "employs physical force, a threat of physical force, a deadly weapon or a dangerous instrument in escaping or attempting to escape from custody" or, "[h]aving been convicted of a felony, ... escapes or attempts to escape from custody imposed pursuant to that conviction." Section 13A-10-32 (escape, 2nd degree) captures those escapes in which a person "escapes or attempts to from a penal facility." Given this statutory scheme, the Commentary to § 13A-10-33 (3rd degree) provides that the statute applies when "the escapee (a) employed no physical force, (b) had not been convicted of a felony, and (c) escaped from a detention other than a penal facility." Thus, the statute pursuant to which Lowery was convicted is a lesser-included offense to the more-serious escape crimes described by Alabama law because it consists (entirely) of "the one act" (escape from custody) that is required by all three. Long v. State, 675 So.2d 532, 534 (Ala.Cr.App.1996).

As a preliminary matter, precedent makes clear that § 13A-10-33 includes at least some conduct that does not qualify as a "violent felony." The statutory framework takes an expansive view of escape from "custody." For example, the statute includes fleeing from a police officer once an assertion of intent to arrest is combined with an initial act indicating arrest or submission. Hunter v. State, 867 So.2d 361 (Ala.Cr.App.2003). Escape from "custody" under Alabama law also includes failing to report back to a work-release center or failing to show up to a scheduled meeting with a supervising-correctional officer. E.g., Ex Parte Jones, 530 So.2d 877 (Ala.1988); Alexander v. State, 475 So.2d 625 (Ala.Cr.App.1984); State v. Wright, 976 So.2d 1053, 1054-55 (Ala.Cr.App.2007); cf. 1975 Ala.Code § 15-18-175(d)(3)(e) (establishing that failing to observe certain conditions in a community-corrections program shall be considered "escape").

It is clear, then, that the statute includes conduct similar (if not identical) to the "failure to report" held in Chambers not to be a violent felony. At a minimum, § 13A-10-33 clearly criminalizes forms of "inaction" (like failing to appear at a designated place), which Chambers recognized were a "far cry" from the kind of "purposeful, violent, and aggressive" behavior otherwise required by the ACCA. Chambers, 129 S.Ct. at 692. In Chambers, the defendant failed to report to serve weekend confinement on several occasions and was convicted of a state offense for those failures. That offense—the failure to report for imprisonment—could not, in the opinion of the Supreme Court, qualify as a "violent felony." Alabama courts have routinely upheld convictions for similar conduct under § 13A-10-33. E.g., Conner v. State, 840 So.2d 950 (Ala.Cr.App.2002) (upholding conviction for escape, 3rd degree, when defendant left his place of employment and failed to return to the county jail as part of a work-release program). Thus, because a defendant can be convicted under § 13A-10-33 without engaging in conduct encompassed by the...