United States v. Stout

• Decision Date: 05 February 2013
• Docket Number: No. 10–6163.,10–6163.
• Citation: 706 F.3d 704
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Benji Antonio STOUT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

706 F.3d 704

UNITED STATES of America, Plaintiff–Appellee,

v.Benji Antonio STOUT, Defendant–Appellant.

No. 10–6163.

United States Court of Appeals,Sixth Circuit.

Argued: July 26, 2012.

Decided and Filed: Feb. 5, 2013.

ARGUED:Jeffrey A. Darling, Reinhardt & Associates, PLC, Lexington, Kentucky, for Appellant. Valorie D. Smith, United States Attorney's Office, Lexington, Kentucky, for Appellee. ON BRIEF:Jeffrey A. Darling, Reinhardt & Associates, PLC, Lexington, Kentucky, for Appellant. Valorie D. Smith, Charles P. Wisdom, Jr., United States Attorney's Office, Lexington, Kentucky, for Appellee.

Before: COLE and DONALD, Circuit Judges; SARGUS, District Judge.^*

SARGUS, D.J., delivered the opinion of the court, in which COLE, J., joined. DONALD, J. (pp. 710–16), delivered a separate dissenting opinion.

OPINION

EDMUND A. SARGUS, District Judge.

Benji Stout pleaded guilty to knowingly possessing body armor after having been previously convicted of a crime of violence, in violation of 18 U.S.C. § 931(a)(2). Stout now appeals, contending that the district court erred when it found that his prior state-law conviction for second-degree escape constituted a “crime of violence,” as defined by 18 U.S.C. § 16. For the following reasons, we AFFIRM the decision of the district court.

I.

On August 4, 2009, officers from the Winchester, Kentucky Police Department stopped Stout's vehicle. The officers discovered four pieces of body armor in the vehicle, which Stout admittedly possessed. The body armor had been manufactured by American Body Armor in Jacksonville, Florida and sold in interstate commerce prior to Stout's possession.

A grand jury returned an indictment charging Stout with one count of being a felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and one count of knowingly possessing body armor after having been previously convicted of a crime of violence in violation of 18 U.S.C. § 931(a)(2). At his arraignment, Stout requested a hearing to determine whether his prior state-law conviction for second-degree escape constituted a “crime of violence.”

The record below provides limited information with regard to Plaintiff's prior state-law conviction. In November 2004, Stout pleaded guilty to second-degree escape in violation of section 520.030 of the Kentucky Revised Statutes. The underlying complaint alleged that Stout committed the crime while incarcerated at the Detention Center in Lincoln County, Kentucky. According to the reporting officer, Stout “scaled the recreation area wall, cutting a hole in the fence at [the] top and escaping custody of the [j]ail.” During the evidentiary hearing, Stout, through his attorney, admitted to scaling the wall and escaping through a hole in the fence, but denied cutting the hole in the fence. The government proffered no evidence indicating that Stout was the individual who cut the hole in the fence that he used for his escape. On this basis, the district court “assume[d] that [Stout] merely used the hole to make his escape.”

The district court held that Stout's prior state-law conviction for escape constituted a “crime of violence” for purposes of 18 U.S.C. § 16. The district court stressed that Stout had escaped from a secure facility, by scaling a fence. The district court reasoned that Stout's actions were “purposeful and aggressive” and “created a serious risk of the use of physical force against guards and members of the general public.” After the district court's ruling, Stout pleaded guilty to one count of knowingly possessing body armor having previously been convicted of a “crime of violence.” The government, through motion, dismissed the other remaining charge, being a convicted felon in possessionof a firearm in violation of 18 U.S.C. § 922(g)(1).

Stout's plea agreement allowed him to appeal the district court's ruling on the “crime of violence” issue. Accordingly, he filed a timely notice of appeal of his conviction.

II.

Stout's appeal presents a single issue: Does his prior state-law conviction for escape constitute a “crime of violence” within the meaning of 18 U.S.C. § 16? We review the district court's legal determination de novo. United States v. Martin, 378 F.3d 578, 580 (6th Cir.2004).

A “crime of violence” is defined as:

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

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16 (2006). Our inquiry is conditionally two-fold. First, we apply the “categorical approach” to discern the nature of a defendant's prior conviction. Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). To do so, we look to the statutory definition of the crime of conviction, not the underlying facts thereof, to determine the nature of the crime. Id.; see also Leocal v. Ashcroft, 543 U.S. 1, 7, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (holding that the language of 18 U.S.C. § 16 “requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner's crime”). If, however, this inquiry reveals that it is possible to violate a criminal law both in a manner that is a crime of violence and in a manner that is not, we may look at the indictment, guilty plea, and similar documents to see if they “necessarily” establish the nature of the prior offense. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); see also United States v. Mendoza–Mendoza, 239 Fed.Appx. 216, 219 (6th Cir.2007) (applying Shepard within the context of 18 U.S.C. § 16).

In evaluating the residual clause of § 16(b), we recognize that the United States Sentencing Guidelines and the Armed Career Criminal Acts (“ACCA”) each contain similar residual clauses relating to crimes of violence. SeeU.S. Sentencing Guidelines Manual § 4B1.2 (2012) (providing that the term “crime of violence” includes a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another”); 18 U.S.C. § 924(e)(2)(B) (stating that “violent felony” includes a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another”). Although similar, the language of § 16(b) is narrower than these provisions to the extent that it explicitly requires that a crime carry a substantial risk “of physical force” during “the course of committing the offense.” 18 U.S.C. § 16(b); see also United States v. Amos, 501 F.3d 524, 527–28 (6th Cir.2007) (comparing § 16(b) to the ACCA).

III.

Pursuant to the approach outlined in Taylor and Shepard, we must first classify the offense in question. We have recognized, “[o]ften the key analytical move in the case happens at the first step: deciding whether the state-law definition of the offense involves just one category or two or more categories of crimes.” United States v. Mosley, 575 F.3d 603, 606 (6th Cir.2009). “The ‘categorical approach requires courts to choose the right category,’ as the Supreme Court recently clarified, and sometimes that choice requires the federal courts to draw distinctions that the state law on its face does not draw.” Id. (quoting Chambers v. United States, 555 U.S. 122, 126, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009)). For example, when the same statutory section criminalizes two types of behavior that significantly differ, “a sentencing court must treat the two as different crimes.” Chambers, 555 U.S. at 126, 129 S.Ct. 687. At the same time, however, we must be “careful that the lines we draw are meaningful ones” and must not circumvent the categorical approach that Taylor requires. United States v. Ford, 560 F.3d 420, 424 (6th Cir.2009).

As detailed above, Stout's prior state-law conviction was for escape. ¹ Under Kentucky law, “escape in the first degree” is a Class C felony that arises when a person “escapes from custody or a detention facility by the use of force or threat of force against another person.” Ky.Rev.Stat. § 520.020 (2012). This was not, however, the crime of Stout's conviction. Stout was guilty of escape in the second degree, which consists of either “escape [ ] from a detention facility or, [while] being charged with or convicted of a felony, ... escape[ ] from custody.” Id.§ 520.030(1).

To categorize section 520.030 of the Kentucky Revised Statutes, we need not look far. In Ford, we acknowledged that “a conviction for second-degree escape [under this provision] covers everything from a felon who breaks out of a maximum-security prison to one who fails to report at a halfway house.” 560 F.3d at 422. Because of the broad range of conduct that a conviction for second-degree escape covers, we concluded that there were both violent and non-violent means of violating the statute. Id. at 426. Moreover, we recognized that Kentucky law divides “into at least four categories of escape: leaving custody with the use or threat of force; leaving custody in a secured setting; leaving custody in a non-secured setting by ‘walking away’; or failure to report.” Id. at 424.

In this case, the proper classification of Stout's offense is an escape by leaving custody in a secured setting. Once again, within the relevant Shepard material, Stout admits that he scaled the recreational area wall of his detention facility and then escaped through a pre-existing hole in the fence. Such conduct falls squarely into the category of “leaving custody in a secured setting” that we recognized in Ford.Id. at 424. Specifically, in Ford, we discussed the differing nature of such conduct in comparison to walkaway escapes:

There is a difference between individuals who overcome physical barriers to freedom and those who walk off the grounds—those in other words who leave a facility without...