U.S. v. Thomas

• Decision Date: 16 March 2004
• Docket Number: No. 03-3053.,No. 02-3121.,No. 02-3073.,02-3073.,02-3121.,03-3053.
• Citation: 361 F.3d 653
• Parties: UNITED STATES of America, Appellee, v. Lawrence E. THOMAS, Appellant,
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 653

361 F.3d 653

UNITED STATES of America, Appellee, v. Lawrence E. THOMAS, Appellant,

No. 02-3073.

No. 02-3121.

No. 03-3053.

United States Court of Appeals, District of Columbia Circuit.

Argued December 9, 2003.

Decided March 16, 2004.

Appeals from the United States District Court for the District of Columbia (No. 01cr00423-01) (No. 02cr00132-01) (No. 99cr00399-01).

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellants. With her on the briefs were A. J. Kramer, Federal Public Defender, and Tony Axam, Jr. and Erica J. Hashimoto, Assistant Federal Public Defenders. Tony W. Miles, Assistant Federal Public Defender, entered an appearance.

Suzanne Grealy Curt, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and John R. Fisher, Barbara J. Valliere, and Stephen J. Gripkey, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and GARLAND and ROBERTS, Circuit Judges.

GARLAND, Circuit Judge:

The defendants in these consolidated cases raise two questions under the United States Sentencing Guidelines. The first, which is a question of first impression in this circuit, is whether escape is a crime of violence under Guideline § 4B1.2(a)(2) — the guideline that defines the crimes that trigger career offender sentencing enhancements. The second question, upon which there is controlling precedent, is whether the district courts that sentenced two of the defendants erred by relying on the defendants' arrest records in denying their motions for sentencing departures pursuant to Guideline § 4A1.3.

I

On February 28, 2000, Lawrence Thomas pled guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). On July 30, 2002, the United States District Court for the District of Columbia sentenced Thomas as a "career offender" pursuant to U.S. SENTENCING GUIDELINES MANUAL § 4B1.1 [hereinafter U.S.S.G.].¹ That provision subjects a defendant to a substantial sentencing enhancement if, among other things, he has two prior felony convictions for "crime[s] of violence" or "controlled substance offense[s]," as defined in § 4B1.2. U.S.S.G. § 4B1.1(a); see id. cmt. n.1. In sentencing Thomas as a career offender, the district court determined that Thomas had previously been convicted of at least two qualifying crimes of violence. The court based that determination on Thomas' 1977 armed robbery conviction, and on his three prior convictions for escape: a 1987 conviction for violating the District of Columbia's former prison breach statute, D.C.Code § 22-2601 (1973); a 1988 conviction for violating the same statute; and a 1995 conviction for escape from a federal facility in violation of 18 U.S.C. § 751(a). These past convictions, the court concluded, triggered § 4B1.1, thus increasing Thomas' guidelines offense level from 24 to 32 and placing Thomas in criminal history category VI. See Thomas Presentence Investigation Report (PSR) ¶¶ 19-20, 41.²

Thomas challenged this conclusion, arguing that, although his conviction for armed robbery concededly qualified as a crime of violence under Guideline § 4B1.2(a), his previous escape convictions did not. Thomas also maintained that category VI over-represented the seriousness of his criminal history, and urged the district court to grant a downward departure from his guidelines sentencing range pursuant to Guideline § 4A1.3. The district court rejected Thomas' arguments, holding that escape was a crime of violence, and that — in light of Thomas' record of arrests and convictions — category VI did not overstate his criminal history. The court did, however, decrease Thomas' offense level by 3 levels for accepting responsibility for his crime, see U.S.S.G. § 3E1.1(a)-(b), and by another 8 levels because Thomas had provided substantial assistance to law enforcement after his arrest, id. § 5K1.1. Thomas Sentencing Hr'g Tr. at 46 (July 30, 2002). This resulted in an offense level of 21, which, combined with a criminal history category of VI, yielded a sentencing range of 77-96 months. U.S.S.G. ch. 5, pt. A (sentencing table). The district court sentenced Thomas to 80 months in prison.

On March 28, 2002, Dale Smith pled guilty to one count of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). He also accepted responsibility for 2.5 grams of cocaine powder as conduct relevant to that offense. At sentencing, the district court concluded — over the defendant's objection — that Smith was a career offender based on two prior felony convictions: a 1993 conviction for possession with intent to distribute cocaine, and a 1997 conviction for escape from an institution in violation of the current D.C.Code escape statute, D.C.Code § 22-2601(a)(1) (2001). The career offender designation gave Smith an adjusted offense level of 29 (after a 3-level reduction for acceptance of responsibility), and a criminal history category VI. That combination mandated a guideline sentencing range of 151-188 months' imprisonment, as compared to what would have been a range of 33-41 months without the career offender designation. Compare Smith PSR ¶¶ 28, 85, with id. ¶¶ 25, 27, 41, and U.S.S.G. ch. 5, pt. A. Like Thomas, Smith filed a motion for a downward departure pursuant to Guideline § 4A1.3, claiming that, even if he technically qualified as a "career offender" under § 4B1.1, that designation significantly overstated the seriousness of his criminal history. The district court denied the motion in light of Smith's history of arrests and convictions, and sentenced Smith to a 151-month term of incarceration.

Finally, on April 4, 2002, Andrew Cook, Jr. pled guilty to one count of a five-count indictment charging him with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Although that crime generally carries a base offense level of 14, that level increases to 24 if the defendant has two prior felony convictions for "crime[s] of violence" or controlled substance offenses, as defined "in U.S.S.G. § 4B1.2(a)." U.S.S.G. § 2K2.1(a), cmt. n.5; see id. § 2K2.1(a). Over Cook's objection, the district court found that Cook had two prior convictions for crimes of violence: a 1970 armed robbery and a 1989 prison breach in violation of former D.C.Code § 22-2601 (1973).³ After the district court subtracted 5 levels for substantial assistance to law enforcement and 3 levels for acceptance of responsibility, Cook's adjusted offense level was 16. See Cook PSR ¶¶ 16, 22, 23; Cook Sentencing Hr'g Tr. at 21 (Dec. 16, 2002). Combined with a criminal history category of V, the guideline sentencing range was 41-51 months. U.S.S.G. ch. 5, pt. A. The court sentenced Cook to 41 months in prison, the bottom of the range.

All three defendants filed timely notices of appeal. Although their crimes were unrelated, we granted the defendants' unopposed motion to consolidate their appeals because they raised common questions of law. In Part II, we consider whether escape is properly regarded as a crime of violence under Guideline § 4B1.2(a). In Part III, we consider whether the district courts erred by relying on arrest records in denying Thomas' and Smith's motions for downward departures under § 4A1.3.

II

At sentencing, each defendant objected to the enhancement of his sentence based on the designation of a prior escape offense as a "crime of violence," as that term is defined in Guideline § 4B1.2(a). Whether a particular crime constitutes a crime of violence under the Sentencing Guidelines is a question of law, which we review de novo. See United States v. Hill, 131 F.3d 1056, 1062 n. 5 (D.C.Cir.1997); United States v. Mathis, 963 F.2d 399, 404 (D.C.Cir.1992).

Guideline § 4B1.2(a) defines "crime of violence" as:

[A]ny 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.

U.S.S.G. § 4B1.2(a) (emphasis added). All of the circuits that have considered the question — numbering nine to date — have concluded that the crime of escape falls within the ambit of § 4B1.2(a).⁴ Today, we join them.

Defendants Thomas and Cook had prior convictions for prison breach in violation of former D.C.Code § 22-2601 (1973). That statute provided, in relevant part: "Any person committed to a penal institution of the District of Columbia who escapes or attempts to escape therefrom, or from the custody of an officer thereof ..., shall be guilty of an offense...." Defendant Smith had a prior conviction for violating the District of Columbia's current "escape from an institution" provision, which states: "No person shall escape or attempt to escape from: (1) Any penal institution or facility in which that person is confined pursuant to an order issued by a court, judge, or commissioner of the District of Columbia." D.C.Code § 22-2601(a)(1) (2001).⁵ Finally, in addition to his D.C.Code violation, Thomas had also been convicted of violating the federal escape statute, which makes it a crime to "escape[] or attempt[] to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General...." 18 U.S.C. § 751(a).

We begin with common ground. First, both the defendants and the government agree that, in determining whether the crime of escape comes within the scope of Guideline § 4B1.2(a), we must utilize a categorical approach. See Hill, 131 F.3d at 1062; U.S.S.G. § 4B1.2, cmt. n.1 (stating that the relevant inquiry under § 4B1.2(a)(2) is whether the conduct "expressly charged ... by its nature" presents a serious potential risk of...