United States v. Jones

• Decision Date: 12 June 2014
• Docket Number: No. 12–40877.,12–40877.
• Citation: 752 F.3d 1039
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Desmond Deon JONES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

752 F.3d 1039

UNITED STATES of America, Plaintiff–Appellee,

v.Desmond Deon JONES, Defendant–Appellant.

No. 12–40877.

United States Court of Appeals, Fifth Circuit.

June 12, 2014.

Julia Bowen Stem, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, Eileen K. Wilson, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Molly Estelle Odom, Esq., Assistant Federal Public, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Desmond Deon Jones, convicted as a felon unlawfully in possession of a firearm, challenges his sentence, contending that the district court erred in concluding that his prior federal conviction for escaping from the custody of the Bureau of Prisons by leaving a halfway house was a “crime of violence” within the meaning of Sentencing Guidelines § 4B1.2(a).¹ We vacate the sentence and remand.

I

Jones was convicted of possession of a firearm by a felon.² The presentence report recommended a base offense level of 20 under § 2K2.1(a)(4)(A), based on the presentencing officer's conclusion that Jones had a prior felony conviction for a “crime of violence,” as defined in § 4B1.2(a).³ The prior felony conviction was under 18 U.S.C. § 751(a) for leaving a halfway house. The indictment underlying that conviction alleged that Jones “knowingly escape[d] from the custody of the Bureau of Prisons, by absconding from Dismas Halfway House in Corpus Christi, Texas, an institutional facility in which he was lawfully confined....” Jones objected to the presentence report, arguing that this prior conviction did not constitute a crime of violence and therefore, that the base offense level should be 14, which, with a Criminal History Category of VI, would result in an advisory Sentencing Guidelines range of 37 to 46 months of imprisonment. The district court overruled Jones's objection, concluding that the applicable advisory Guidelines range was 70 to 87 months of imprisonment. The district court sentenced Jones to 70 months in prison. This appeal ensued.

II

Whether a district court correctly interpreted the Guidelines is a question of law that we review de novo.⁴ The determination that an offense is a “crime of violence” is a legal question subject to de novo review. ⁵ The Guideline provision at issue is § 2K2.1, which applies to convictions for the unlawful possession of a firearm by a felon. The base offense level is 20 if the defendant “committed any part of the instant offense subsequent to sustaining one felony conviction of ... a crime of violence.” ⁶ The commentary to § 2K2.1 provides that “crime of violence” is defined with reference to § 4B1.2(a) and application note 1 of the commentary to § 4B1.2.⁷ Under § 4B1.2(a), the term “ ‘crime of violence’ means 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.⁸

The commentary to § 4B1.2 elaborates, further defining what constitutes a “crime of violence” for purposes of this section of the Guidelines:

“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if

(A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(B) the conduct set forth ( i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.⁹

Only the residual clause is at issue. The question is whether Jones's prior escape conviction qualifies as a crime of violence because it “involve[d] conduct that present[ed] a serious potential risk of physical injury to another” ¹⁰ or “by its nature, presented a serious potential risk of physical injury to another.” ¹¹

Jones's prior conviction for escape was obtained under a federal statute, which provides:

Whoever escapes or attempts 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, or from any custody under or by virtue of any process issued under the laws of the United States ... shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined under this title or imprisoned not more than five years, or both.... ¹²

In determining what constitutes “a serious potential risk of physical injury to another” under § 4B1.2(a) of the Guidelines, our court has considered decisions of the Supreme Court construing the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), to be instructive.¹³ There are differences between the residual clause in the ACCA's definition of a “violent felony” and § 4B1.2(a)'s residual clause, as will be discussed in more detail.¹⁴ However, our court has held that like the residual clause of the ACCA's definition of “violent felony,” the residual clause in § 4B1.2(a), at a minimum, includes crimes that, like the enumerated crimes in § 4B1.2(a), “typically involve purposeful, violent, and aggressive conduct,” and that this “conduct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.” ¹⁵

Jones argues that the Supreme Court's opinion in Chambers v. United States,¹⁶ a decision construing the ACCA, indicates that absconding from a halfway house does not present a serious potential risk of injury to another. The defendant in Chambers was convicted of failing to report to serve a penal sentence under a state statute that described “several different kinds of behavior” including failure to return from work or from a furlough, failure to abide by the terms of home confinement, escape from custody, and escape from a penal institution.¹⁷ Categorizing a conviction for failure to report as distinct from escape, the Supreme Court held that failure to report for imprisonment was not a violent felony under the ACCA.¹⁸ This holding was predominantly supported by statistics compiled by the United States Sentencing Commission showing that of 160 failures to report in 2006 and 2007, none resulted in the use or threat of force, and only five (3.1%) involved a dangerous weapon.¹⁹

The same report upon which the Supreme Court relied in Chambers categorized leaving a halfway house as “Leaving nonsecure custody,” a category that included, without distinction, escapes from facilities such as prison camps, as well as escapes from home detention.²⁰ Of 177 instances, three (1.7%) involved the use of force or threat of force, and four instances (2.3%) involved a dangerous weapon.²¹ These statistics support treating an escape from a halfway house as conceptually different from an escape from other types of correctional facilities when considering the potential risk of physical injury to another.

The Supreme Court's decision in Chambers has led other circuit courts to conclude that escape from a halfway house and other similar escapes are not “crimes of violence” within the meaning of § 4B1.2.²² We agree that typically, such a crime does not present a potential risk of physical injury to another. In addition to the statistics gathered by the Sentencing Commission, the characteristics of commitment to a halfway house differ from commitment to other penal facilities. A halfway house, also known as a community corrections center or residential reentry center, represents “the lowest custody level within the [federal prison] system.” ²³ Individuals are generally required to be in the facility from 9:00 pm to 6:00 am, and exceptions are made during these hours for employment or other approved programming.²⁴ As we have noted, “a community corrections facility is not a jail.” ²⁵ Leaving a facility that allows individuals to sign in and sign out does not typically involve “violent” or “aggressive” behavior. “[A]n individual who simply walks away from custody [is] just as unlikely as an individual who fails to report to custody ‘to call attention to his whereabouts by simultaneously engaging in additional violent and unlawful conduct.’ ” ²⁶ Unlike some other escapes, leaving a halfway house does not require overcoming physical barriers, breaking locks on doors, or evading security personnel.²⁷ “Escaping” from a halfway house does not typically “present a serious potential risk of physical injury” to others.

III

The Government contends that our decisions in United States v. Ruiz²⁸ and United States v. Hughes²⁹ are binding precedent that require us to hold that Jones's prior conviction for escape is a “crime of violence.” We disagree.

In Ruiz, the defendant had previously been convicted under 18 U.S.C. § 751(a) for escaping from a federal prison camp.³⁰ The indictment underlying the escape offense alleged that Ruiz “ ‘knowingly escape[d] from custody of [a federal prison camp] ... in which he was lawfully confined.’ ” ³¹ Ruiz asked this court to consider facts that were not in the indictment, arguing that he “simply walked away from a prison camp where no physical barriers prevented the escape and no guards were armed.” ³² We...