U.S. v. Winn

• Decision Date: 09 April 2004
• Docket Number: No. 03-1534.,03-1534.
• Citation: 364 F.3d 7
• Parties: UNITED STATES of America, Appellee, v. Vincent WINN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

364 F.3d 7

UNITED STATES of America, Appellee, v. Vincent WINN, Defendant, Appellant.

No. 03-1534.

United States Court of Appeals, First Circuit.

Heard December 5, 2003.

Decided April 9, 2004.

Richard F. Monteith, Jr., for appellant.

Mark E. Howard, Assistant United States Attorney, with whom Thomas P. Colantuono, United States Attorney, was on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, and STAHL, Senior Circuit Judge.

TORRUELLA, Circuit Judge.

Defendant-appellant Vincent Winn ("Winn") appeals the sentence imposed by the district court, objecting to its enhancement under the career offender provisions of the federal sentencing guidelines. U.S.S.G. § 4B1.1. Winn argues that the government failed to show the requisite predicate offenses because his conviction of a Class B felony under the New Hampshire escape statute, N.H.Rev.Stat. Ann. § 642:6, does not constitute a crime of violence within the meaning of the guidelines. We disagree and affirm Winn's enhanced sentence as a career offender.

I. Background

On January 9, 2003, Winn pleaded guilty to conspiracy to distribute and to possess with intent to distribute fifty grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) & 846. In the Presentence Investigation Report ("PSI Report") submitted to the district court, Winn was deemed a career offender under § 4B1.1, based in part on the predicate offense of a 1996 Class B felony conviction under N.H.Rev.Stat. Ann. § 642:6, in which it was charged that Winn did "knowingly escape from official custody in that he walked away from the Calumet Halfway House ... after having been confined there pursuant to an order of the Hillsborough County Superior Court." Winn had failed to return to the halfway house after a break. Four days later, he returned and surrendered himself.

The PSI Report characterized the escape conviction as a crime of violence pursuant to U.S.S.G. § 4B1.2(a)(2). Winn objected to the report and, at the sentencing hearing on April 10, 2003, Winn argued that the non-violent nature of the escape charge could be established by looking to the New Hampshire statute under which he was charged, which, he contends, distinguishes between violent and non-violent escapes. Moreover, Winn argued, the indictment itself shows that no element of violence was alleged or charged, and the underlying facts suggest no threat of violence as Winn voluntarily surrendered himself into custody four days after walking away.

The district court adopted the PSI Report's recommendation and deemed Winn a career offender. Winn was sentenced to 151 months imprisonment and five years of supervised release. This appeal followed.

II. Analysis

We review de novo whether a crime qualifies as a crime of violence within the meaning of § 4B1.2(a)(2) and therefore as a predicate offense under § 4B1.1. United States v. De Jesús, 984 F.2d 21, 22 n. 4 (1st Cir.1993)(citing United States v. Fiore, 983 F.2d 1, 2 (1st Cir.1992)).

The sentencing guidelines define a "crime of violence" as any federal or state offense punishable by imprisonment for more than 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). Following Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), courts have taken a formal categorical approach to the question of whether a felony constitutes a crime of violence within this definition. United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994)("As a rule, this type of approach is restricted to an examination of how the legislature has defined the crime, without any concomitant inquiry into the details of the defendant's actual criminal conduct.").¹ "Thus, rather than examining the actual circumstances underlying the earlier conviction, we examine only the statutory formulation of the crime charged... to see if that crime is a crime of violence for the purposes of the career offender guideline." De Jesús, 984 F.2d at 23. In some limited circumstances, however, a court "may appropriately peruse documents such as the charging papers or jury instructions in order to flesh out a predicate offense inquiry." Id. at 23 n. 5.²

The New Hampshire escape statute under which Winn was charged provides as follows:

I. A person is guilty of an offense if he escapes from official custody.

II. "Official custody" means arrest, custody in a penal institution, an institution for confinement of juvenile offenders or other confinement pursuant to an order of a court.

III. The offense is a class A felony if the actor employs force against any person or threatens any person with a deadly weapon to effect the escape, except that if the deadly weapon is a firearm, he shall be sentenced in accordance with RSA 651:2, II-g. Otherwise it is a class B felony.

N.H.Rev.Stat. Ann. § 642:6. The statute thus distinguishes between Class A and Class B felony escapes based on the use of force or of a deadly weapon.

Winn argues that the New Hampshire statute thus distinguishes between violent and non-violent escapes, and that a Class B escape conviction can be identified as non-violent without looking beyond the charge. The government concedes that the Class B felony of which Winn was charged does not have "as an element the use, attempted use, or threatened use of physical force against the person of another," U.S.S.G. § 4B1.2(a)(1), but argues that the charged offense "otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2 (a)(2).

We have previously held that "even if force (actual or threatened) is not an element of the offense, a crime may still be a crime of violence if it falls within the `otherwise' clause of subsection (ii), that is, if it `involves conduct that presents a serious potential risk of physical injury to another.'" De Jesús, 984 F.2d at 23 (quoting U.S.S.G. § 4B1.2(a)(2)). While escape is not among the offenses, such as murder, manslaughter, and kidnapping, listed in the Sentencing Commission's application notes to § 4B1.2, this absence is not dispositive. "Expanding on the `otherwise' clause, the application notes explain that `[o]ther offenses are included where ... the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted ..., by its nature, presented a serious potential risk of physical injury to another.'" De Jesús, 984 F.2d at 24 (quoting U.S.S.G. § 4B1.2, cmt. n. 2).³ The question before us, then, is "whether [a Class B felony escape under N.H.Rev.Stat. Ann. § 642:6] is a category of crime that, by its nature, presents a substantial risk of personal injury even though its statutorily defined elements do not include the use or threat of force." De Jesús, 984 F.2d at 24.

Our sister circuits have uniformly held that, as a categorical matter, any escape, however effected, "involves conduct that presents a serious potential risk of physical injury to another" and thus constitutes a crime of violence for the purposes of the sentencing guidelines. United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002)(failure to report back to halfway house constitutes a crime of violence because "every escape involves a serious potential risk of physical injury to another")(internal quotations omitted); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002)(rejecting the argument that if an escape statute extends to "walk away" escapes the crime cannot by its nature present a serious potential risk of physical injury to another); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001)(same)("We believe that every escape, even a so-called `walkaway' escape, involves a potential risk of injury to others.... Even the most peaceful escape cannot eliminate the potential for violent conflict when the authorities attempt to recapture the escapee."); United States v. Gay, 251 F.3d 950, 954-55 (11th Cir.2001)(same); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.1999)(same); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999)(same); United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir.1997)(same); United States v. Dickerson, 77 F.3d 774, 777 (4th Cir.1996)(same).

Circuit courts that have addressed the analogous question of whether an escape conviction qualifies as a "violent felony" under the Armed Career Criminal Act ("ACCA") have similarly applied the categorical Taylor analysis to conclude that escape, by its nature, involves "conduct that presents a serious potential risk of physical injury to another." United States v. Jackson, 301 F.3d 59, 62-63 (2d Cir.2002); United States v. Franklin, 302 F.3d 722 (7th Cir.2002); United States v. Hairston, 71 F.3d 115, 117-18 (4th Cir.1995). In Jackson, the court reasoned that "[a]n inmate who escapes by peacefully walking away from a work site will (if he can) be inconspicuous and discreet, and will (if he can) avoid confrontation and force. But escape invites pursuit; and the pursuit, confrontation, and recapture of the escapee entail serious risks of physical injury to law enforcement officers and the public." Jackson, 301 F.3d at 63.

The categorical approach has thus led to the conclusion that "under the ACCA and the United States Sentencing Guidelines, escape is always a violent crime. It is irrelevant whether the escape actually involved any violence or whether defendant was convicted under a state statute that defines escape as a nonviolent offense." United States v. Springfield, 196 F.3d 1180, 1185 (10th Cir.1999). Even when the state escape statute "distinguishes between an escape effected by or facilitated by violence, versus a simple escape," the categorical approach has yielded the same conclusion, on the grounds that "[e]ven though initial...