United States v. Koufos, s. 10–2195

• Decision Date: 27 December 2011
• Docket Number: 10–2199,Nos. 10–2195,10–2200.,s. 10–2195
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. George John KOUFOS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

666 F.3d 1243

UNITED STATES of America, Plaintiff–Appellee,

v.George John KOUFOS, Defendant–Appellant.

Nos. 10–2195

10–2199

10–2200.

United States Court of Appeals, Tenth Circuit.

Dec. 27, 2011.

Richard Winterbottom, Assistant Federal Public Defender, Office of the Federal Public Defender for the State of New Mexico, Albuquerque, NM, for Defendant–Appellant.

Laura Fashing, Assistant U.S. Attorney, (Kenneth J. Gonzales, United States Attorney, with her on the brief), Office of the United States Attorney for the State of New Mexico, Albuquerque, NM, for Plaintiff–Appellee.

Before BRISCOE, Chief Circuit Judge, and KELLY, LUCERO, MURPHY, HARTZ, O'BRIEN, TYMKOVICH, GORSUCH, HOLMES, and MATHESON, Circuit Judges.

ORDER

This matter is before the court on appellant's Petition For Rehearing En Banc and Panel Rehearing. Upon consideration of the request for panel reconsideration, the original panel members have determined rehearing is appropriate. Consequently, the panel rehearing request is granted and the clerk is directed to withdraw the Opinion filed in this matter originally on November 17, 2011. An amended opinion is attached to this order. The clerk is directed to file the new decision effective the date of this order.

The request for en banc consideration was transmitted to all of the judges of the court who are in regular active service. As no member of the panel and no judge in regular active service on the court requested that the court be polled, the request for en banc consideration is denied.

Before BRISCOE, Chief Judge, TYMKOVICH, Circuit Judge, and FREUDENTHAL, District Judge.^*FREUDENTHAL, District Judge.

It is a federal crime for a convicted felon to be in unlawful possession of a firearm. 18 U.S.C. § 922(g)(1). Under the United States Sentencing Guideline Manual (USSG), the ordinary base offense level for such conduct is level 14.¹ However, if the unlawful possession occurred after the felon had a prior felony conviction for a crime of violence, the base offense level increases to level 20. The instant case is another in a series of cases asking us to determine if a particular prior conviction was for a crime of violence as defined by USSG § 4B1.2.

Following a determination that Defendant George Koufos had a prior conviction for a crime of violence, the district court sentenced Koufos to a total term of 76 months' imprisonment for four offenses: felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and two charges of bank fraud in violation of 18 U.S.C. § 1344. According to Koufos, the district court erred when it considered his 1990 conviction for a 1986 escape from custody as a crime of violence under USSG § 2K2.1(a)(4)(A), and by imposing a procedurally unreasonable sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.Factual Background 1990 Conviction for 1986 Escape

On March 26,1986, Koufos was arrested in New York by Agents of the Bureau of Alcohol, Tobacco and Firearms. ROA, Vol. 1, p. 28. Following his arrest and on the same day, Koufos escaped from custody at the United States District Courthouse in New York while awaiting arraignment. Id. Koufos was charged with escape by Information which states:

1. Defendant ... was arrested by Agents of the Bureau of Alcohol, Tobacco and Firearms on March 26, 1986 in New York, New York, based on an arrest warrant issued by the United States District Magistrate ... on March 24, 1986 in Newark, New Jersey.

2. Defendant ... did escape from custody of the Unites [sic] States District Courthouse, New York, New York, while awaiting arraignment after said arrest.

3. Defendant ... did remain at large until his arrest on February 3, 1990.

4. On or about March 26, 1986, in the Southern District of New York, the defendant, while in custody of the Attorney General and his authorized representative, and while in custody under and by virtue of process issued ... by the District of New Jersey [court], unlawfully, wilfully and knowingly did escape from the ... Southern District of New York [federal court].

In violation of Title 18, United States Code, Section 751(a).

Id. Title 18 U.S.C. § 751(a) provides as follows:

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 by any court, judge, or magistrate judge, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense [be fined or imprisoned or both]....

2007 and 2008 Charges

In 2007 and 2008, three federal grand juries in different states returned indictments against Koufos. In 2007, a Vermont federal grand jury accused him of being a felon in possession of a firearm. Supp. ROA, Vol. 5, pp. 4–5. That same year, a New Mexico federal grand jury accused him of the same offense plus the charge of felon in possession of ammunition.² ROA, Vol. 1, pp. 4–5. In 2008, a New Hampshire federal grand jury returned a two-count indictment against Koufos, both counts involving bank fraud. Supp. ROA, Vol. 4, pp. 6–10

On February 4, 2009, Koufos filed an unopposed motion asking the district court to order a pre-plea presentence report (PSR) in anticipation of pleading guilty not only to the New Mexico indictment, but also to the New Hampshire and Vermont indictments. Supp. ROA, Vol. 1, p. 9.³ The district court consented and a pre-plea PSR was prepared. Id., p. 11; Supp. ROA, Vol. 3, pp. 3–37.⁴

Plea Agreements

Koufos was offered three separate plea agreements for the three indictments, with different approaches to the issue of appellate waiver:

The Vermont plea agreement contained no appellate waiver. Supp. ROA, Vol. 1, pp. 16–22.⁵

The New Mexico plea agreement included a limited waiver of appeal as follows:

The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C. § 3742 afford a Defendant a right to appeal a conviction and the sentence imposed. Acknowledging that, the Defendant knowingly waives the right to appeal the Defendant's convictions and any sentence within the applicable advisory guideline range as determined by the Court; except that this waiver does not apply to any determination as to whether the Defendant's prior convictions constitute crimes of violence pursuant to the advisory sentencing guidelines. Both the Defendant and the government reserve the right to appeal the district court's determination of whether the Defendant's prior convictions do or do not constitute crimes of violence....

ROA, Vol. 1, p. 13.

The New Hampshire plea agreement also included a limited waiver of appeal as follows:

By entering into this Plea Agreement, the defendant knowingly and voluntarily waives any right to appeal or to collaterally challenge:

1. His guilty pleas and any other aspect of his convictions, including, but not limited to, any rulings on pretrial suppression motions or any other pretrial dispositions of motions and issues; and

2. The sentence imposed by the Court if within the guideline range determined by the Court, or lower, or the Court's imposition of the minimum mandatory sentence. Supp. ROA, Vol. 1, p. 13.⁶

Sentencing

The district court held its sentencing hearing on August 17, 2010. Prior to and at sentencing, Koufos objected to the PSR which characterized his 1990 conviction for the 1986 escape as a crime of violence as defined by USSG § 4B1.2. ROA, Vol. 1, pp. 16–39, Vol. 3, p. 4. Characterizing the 1986 escape as a crime of violence resulted in increasing the base offense level for felon in possession from level 14 to level 20. USSG § 2K2.1(a)(4)(A). Four levels were added for the specific offense characteristic of use of a firearm in connection with another offense, aggravated assault. USSG § 2K2.1(b)(6). Under the multiple count adjustment, USSG § 3D1.4, level 24 was the combined adjusted offense level. ROA, Vol. 2, p. 15. After three levels were subtracted for acceptance of responsibility, the Probation Officer calculated the total offense level at 21. Id. at p. 16. Koufos' very lengthy criminal history accrued a total of 25 criminal history points, ⁷ which placed him in criminal history category VI. As a result, the advisory guideline range for the multiple charges was 77 to 96 months in prison. Without a crime of violence assigned to him, Koufos' advisory guideline sentencing range would have been 46–57 months in prison.

Consistent with Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), both Koufos and the government agreed that escape in violation of 18 U.S.C. § 751(a) is not categorically a crime of violence under the guidelines. Under the modified categorical approach outlined in Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the sentencing court was charged with examining court documents to determine which part of the ambiguous escape statute Koufos was found to have violated.

Koufos argued he pleaded guilty to that part of 18 U.S.C. § 751(a) outlawing escape while in custody by virtue of a process issued by the United States. Because the custody was by virtue of a process, Koufos argued that the custody was constructive and the escape was akin to a walkaway from a halfway house which is not a crime of violence. The government disagreed, arguing the Information can be read more broadly to include a charge of escape from the custody of an officer or employee of the United States pursuant to lawful arrest. Under this reasoning, the government argued Koufos' plea and conviction was to a charge of escape from actual secure custody.

The district court considered the arguments and ruled that Koufos' 1...