PC World

United States v. Baker, No. 10-1925-cr (2d Cir. January 12, 2012) (Pooler, Parker, Carney, CJJ) (per curiam)

This latest per curiam affirms an Armed Career Criminal Act (“ACCA”) sentence, rejecting the defendant’s claims that his Vermont prison escape convictions were not ACCA predicates. The statute at issue contains two distinct offenses - failure to report to custody, which is not a predicate, and escape from custody. Baker agreed that his convictions were for escape from custody, but argued that the district court should have looked beyond the charging instruments to determine whether his actual conduct posed a sufficient degree of risk to qualify.

The circuit disagreed. While a sentencing court can, and sometimes must, look beyond the charging instrument, it cannot go beyond the judicial record evidence. Where the defendant pled guilty, the offense is a predicate if the record establishes that his plea necessarily admitted elements of a predicate offense. Here the judicial record evidence established that Baker pled to an escape from custody, and the circuit held that this kind of offense categorically, “in the ordinary case,” presents a serious potential risk of injury to another, rendering it an ACCA predicate. Prisons are dangerous places and escape attempts can have “explosive consequences.” Thus, such attempts present a risk of violent confrontation that is “at least as great as that of a burglary.” Correction officers have a duty to confront and challenge an escaping inmate, which increases the likelihood of a violent encounter. Indeed, Sentencing Commission statistics reveal that more than 15 per cent of federal escapes involved force, more than 30 per cent involved a dangerous weapon, and more than 10 percent involved injury. By contrast there were no instances of injury or force in cases of failure to report or return.

PC World

United States v. Brown, No. 09-4991 (2d Cir. January 5, 2011) (Calabresi, Sack, Katzmann, CJJ) (per curiam)

The court's latest per curiam holds that assaulting a correction officer, in violation of Conn. Gen. Stat. § 53a-167c(a), satisfies the "catch-all" definition of "violent felony" in the Armed Career Criminal Act. Under Circuit law, an offense qualifies under the catch-all if it is both similar "in kind" and in "degree of risk posed" to the listed offenses of burglary, arson, extortion and the use of explosives.

The Connecticut offense is similar "in kind" because it requires the offender to intentionally prevent an officer from performing his duties, primarily in a prison setting, where "the act of injuring an employee for the purpose of preventing her from performing her official duties tends to entail especially violent consequences."

As for the degree of risk posed, the court noted that the statute only applies where the officer has suffered physical injury. This "certainty" of "injury to another" clearly meets the statutory definition.

PC World

United States v. Folkes, No. 09-3389-cr (2d Cir. September 29, 2010) (Newman, Hall, CJJ, Restani, JCIT) (per curiam)

A conceded plain error in applying the definition of “crime of violence” in the illegal reentry Guideline is the subject of the court’s most recent per curiam.

Before he was deported, Walford Folkes had been convicted in New York State of criminal possession of a weapon in the third degree and burglary in the third degree. When sentenced for his illegal reentry, received a sixteen-level enhancement for having reentered after sustaining a conviction for a crime of violence.

On appeal, the circuit vacated the sentence, holding that the enhancement did not apply. The illegal reentry guideline’s definition of “crime of violence” is unique. While it covers more or less the same enumerated categories of offenses as other such definitions - such as that in the career offender Guideline and the Armed Career Criminal Act - unlike those, it lacks a broad residual clause, along the lines of “any other offense that otherwise involves conduct that presents a serious risk of physical injury to another.” Rather, the Guideline’s catch-all only covers offenses that have “as an element” the use of force - or its attempt or threat - against another.

Thus, Folkes’ prior convictions are not for crimes of violence. First, burglary in the third degree in New York is not categorically a “crime of violence,” because the Guideline definition covers only the burglary of a dwelling, but the New York statute covers burglary of a “building,” including, obviously, non-dwelling buildings. And the offense is not covered by the Guideline’s catch-all, because third-degree burglary does not have a force element. Criminal possession of weapon in the third degree is likewise not a crime of violence because the state statute covers only simple possession.

Court Reads the Riot Act

United States v. Johnson, No. 08-5245-cr (2d Cir. August 2, 2010) (Cabranes, Parker, CJJ, Amon, DJ)

In this split decision, the majority held that a conviction for the Connecticut offense of “Rioting at a Correctional Institution” is a “violent felony” under the “otherwise involves” clause of the Armed Career Criminal Act (“ACCA”).

In getting there, the majority looked beyond the statute’s title - which “suggests an obvious answer ” - to examine the conduct that the statute actually proscribes. The Connecticut statute provides that a person is “guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aides, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.” Connecticut courts have “clarified” the meaning of the statute, holding that it is “specifically directed” at those who lead or plan prison disturbances and those who “follow in the proscribed activity.”

In Begay, the Supreme Court held that the “otherwise involves” clause applies only to offenses that are similar “in kind” as well as “in degree of risk posed” to the offenses that are listed in ACCA - burglary, arson, extortion, and the use of explosives.

First, for “in kind” similarity, the test is whether the conduct proscribed by the statute “typically involves purposeful, violent and aggressive behavior.” The court held that the rioting statute satisfies this test, rejecting the defendant’s argument that the statute could cover “many forms of passive and nonviolent conduct.” The court found that it was not a strict liability statute, but rather required proof of “general intent,” which satisfied the “purposeful conduct” requirement of Begay. The court also had “little doubt” that rioting at a correctional institution “typically involves” violent and aggressive conduct. In every reported decision under the statute, the conduct involved either use of a weapon or injury to another person, or both.

To the majority, it did not matter that some arguably nonviolent conduct - such as a hunger strike - might violate the statute, or that some unreported cases might have involved nonviolent conduct. Under the majority’s reading of the statute, each of the acts proscribed by the statute “typically involves violent and aggressive behavior.” To find that the Connecticut statute was not categorically violent would require a realistic probability, not a theoretical possibility, that the state would apply the statute to nonviolent conduct. But the majority found no evidence that Connecticut “regularly” applies the statute to nonviolent conduct.

The majority had an even easier time on the “degree of risk” analysis. The statute “in the ordinary case” presents a serious potential risk of injury to another because prisons are “inherently dangerous institutions” and the conduct proscribed by the rioting statute “renders confrontation with guards or other law enforcement authorities a virtual certainty.”

Judge Parker dissented. In his view, the majority incorrectly concluded that each of the acts proscribed by the Connecticut statute is violent. In fact, the statute “sweeps broadly,” punishing such nonviolent infractions as “disregarding an order to move, engaging in a work stoppage, or counseling another inmate to disobedience.” Judge Parker would have applied the “modified categorical approach” and required the government to “show what part of the statute Johnson actually violated.” To him, unless the underlying conviction had been for “actually rioting,” it is “far from obvious that such an offense” is an ACCA predicate.

Strong Arm Of The Law

United States v. Walker, No. 08-3874-cr (2d Cir. February 18, 2010) (Feinberg, Katzamann, CJJ, Ellis, DJ)

Here, the circuit upheld the use of Walker’s prior conviction for “strong arm robbery” - a South Carolina common law offense - as a “crime of violence” to enhance his offense level under the firearms guideline. The court rejected the argument that only statutory offenses can be used as guideline enhancements, agreeing with the Ninth Circuit that “when a state crime is defined by specific and identifiable common law elements, rather than by a specific statute, the common law definition of a crime serves as a functional equivalent of a statutory definition.” Common law offenses are just as amenable as statutory offenses to the “categorical approach for enhancement determinations.”

The guideline at issue expressly includes “robbery” as a “crime of violence.” Thus, since “strong arm robbery” in South Carolina corresponds in substance to the generic meaning of robbery, it qualifies. The South Carolina Supreme Court has defined the offense as the “felonious or unlawful taking of money, goods, or other personal property of any value from the person of another in his presence by violence or by putting such person in fear.” This definition corresponds “in all material respects” to the generic definition of robbery.

PC WORLD

The court's latest per curiam ("PC") opinion deals with the narrow definition of "crime of violence" in the illegal reentry guideline, U.S.S.G. § 2L1.2. United States v. Gamez, No. 07-3660-cr (2d Cir. August 20, 2009) (per curiam), holds that the New York State offense of criminal possession of a weapon in the second degree, which makes it a crime to possess various types of firearms "with the intent to use the same unlawfully against another" is not a crime of violence under that section. The 2L1.2 definition of "crime of violence" includes certain enumerated offenses, not implicated here, as well as any other offense that "has an an element the use, attempted use, or threatened use of physical force gainst the person of another." Since the New York statute prohibits the intended use of force, but not the attempted use of force, it is not covered by this definition. And, since the "categorial approach" to recidivism statutes prohibits looking back at the defendant's actual conduct, it is irrelevant that Gamez actually shot someone - twice.

It should be noted that this decision is confined to its narrow context. The 2L1.2 "crime-of-violence" definition is pretty much the only one out there that does not have an "otherwise involves" catchall. The circuit long ago held that the same New York statute is a crime of violence under this broader definition.

It is perhaps more important, then, that the court also held that being sentenced under a "significantly overstated advisory Guidelines range" constitutes plain error.

Daye of the Weak

United States v. Daye, No. 08-1012-cr (2d Cir. July 10, 2009) (Miner, Raggi, Livingston, CJJ)

Bruce Daye received an 180-month ACCA sentence. On appeal, he raised challenges to the use of all of his prior convictions as ACCA predicates, and the court sent the case back for further findings.

1. Escape

One of Daye’s prior convictions was for escape, most likely under Vt. Stat. Ann. tit. 13, § 1501. At the time of his federal sentencing, circuit law provided that, categorically, all escape convictions were crimes of violence for ACCA. Thus, although defense counsel objected to the characterization of the escape as a crime of violence, the district court made no findings as to the nature of the escape, which is now dispositive under Chambers v. United States, 129 S.Ct. 687 (2009).

Here, the PSR strongly suggested that Daye’s conviction arose from failing to return from a furlough, rendering it likely that the conviction is not an ACCA predicate. Since the record is incomplete, however, the court remanded the case to the district court for consideration of whether, under Chambers, Daye’s escape conviction is an ACCA predicate.

2. Sex Abuse of a Minor

Crime of Violence

Daye also had three prior convictions for sexual assault of a child under a Vermont statute that makes it a crime to engage in a “sexual act with another person” who is “under the age of 16.” A “sexual act” includes any physical contact with the sex organs, and any act of genital or anal penetration.

The circuit concluded that engaging in an illegal sex act with a child is a crime of violence under ACCA’s “residual clause,” which covers conduct that “presents a serious potential risk of physical injury to another.” Infliction of a sexual act upon a child by an adult clearly qualifies under this section given that such offenses “typically occur in close quarters,” where the adult is older, stronger and more experienced and is likely to have coerced the child. The court also rejected the view of some other circuits that such conduct is not a crime of violence where the child, unless “particularly young,” professes to consent. The very nature of the conduct, along with the child’s relative physical weakness, will always create a “serious risk that physical injury will result.”

The court also concluded that such conduct is similar in kind to the predicate offenses that are specifically listed in ACCA. The Vermont statute, although it imposes strict liability as to the age of the victim, requires “deliberate and affirmative conduct,” and a child is typically unable to deter an adult from using coercive force.

Different Occasions?

Two of Daye’s sex abuse convictions arose from a single incident in which he took four boys blackberry picking, while the third arose from a separate incident.

An infrequently invoked provision of ACCA requires that the predicate convictions arise from acts “committed on occasions different from one another.” Under circuit precedent, acts are committed on different occasions if they do not stem from the same “criminal episode.” The relevant considerations include whether the victims were different, whether the crimes were committed at different locations and whether they were separated by the passage of time.”

Here, the district court had no occasion to consider whether Daye’s two “blackberry picking” convictions arose from crimes committed on different occasions. The circuit remanded the case for consideration of this question, as well.

Resolution of the issue is clearly important here. If, as seems likely Daye’s, escape conviction is not a crime of violence, and one of his three sex abuse convictions is knocked out because it was committed on the same occasion as another, which also seems likely, then Daye might not be subject to ACCA.

No Escape

United States v. Mills, No. 07-0308-cr (2d Cir. June 26, 2009) (Kearse, Sack, Livingston, CJJ) (per curiam)

Gary Mills was convicted of violating 18 U.S.C. § 922(g), and received a 188-month sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). But for ACCA, his statutory maximum would have been 120 months’ imprisonment.

On appeal he argued, and both the government and the court of appeals agreed, that under Chambers v. United States, 129 S.Ct. 687 (2009), his Connecticut conviction for first-degree escape was not a violent felony.

The Connecticut statute proscribes a variety of conduct, ranging from escape from a correctional institution (which probably is a crime of violence) to failing to return to a halfway house or from a furlough. Here, at the sentencing hearing, the evidence established that Mills had been released from prison to “transitional supervision.” He lived in a private residence, but was required to report regularly to a community enforcement officer. After he repeatedly failed to do so, and the officer could not locate him, Mills was charged with escape.

The government conceded that all it would ever be able to prove was that Mill’s “escape” was merely a failure to return or report. And, as the court agreed, after Chambers, a “failure to report or failure to return is not a violent felony under the ACCA.”

Building Block

United States v. Hurell, No. 06-5653-cr (2d Cir. January 28, 2009) (Kearse, Calabresi, Sack, CJJ) (per curiam)

In each of these three consolidated cases, all government appeals, the district court held that New York convictions for burglary in the third degree or attempted burglary in the third degree were not crimes of violence as defined in the career offender provisions of the Sentencing Guidelines. Based on an intervening decision, United States v. Brown, 514 F.3d 256 (2d Cir. 2008), the court reversed.

More importantly, however, the court noted that there is a circuit split on whether burglary of a building, as opposed to a dwelling, constitutes a crime of violence under the relevant sections. The court not weigh in on the issue here, but rather called upon the Sentencing Commission resolve it, noting that the issue is of “particular significance” in the quest to avoid unwarranted sentencing disparities.

Glitter and Begay

United States v. Gray, No. 07-3636-cr (2d Cir. July 25, 2008) (Wesley, Hall, CJJ, Koeltl, DJ)

In New York, reckless endangerment in the first degree involves conduct “evincing a depraved indifference to human life” that “creates a grave risk of death to another person.” Nevertheless, under Begay v. United States, 128 S.Ct. 1581 (2008), the circuit here concludes, it is not a “crime of violence.”

Under Begay, which interpreted the Armed Career Criminal Act, 18 U.S.C. § 924(e), an offense must present a degree of risk similar to, and proscribe conduct that is similar in kind to, the offenses listed in the statute - burglary, arson, extortion and offenses involving explosives - to qualify as a "crime of violence." For “in kind” similarity, the statute must involve conduct that is “purposeful,” “violent,” and “aggressive.”

Here, the court applied this same rubric to the definition of “crime of violence” in sentencing guidelines, which is identical to that in § 924(e), and concluded that reckless endangerment in the first degree is not a crime of violence. While the statute describes conduct that poses a sufficient degree of risk, the offense is not similar “in kind” to the listed offenses because it does not “criminalize purposeful or deliberate conduct.”

This case also reminds that the Begay analysis is “categorical”; it looks only to the statutory elements, and ordinarily the defendant’s actual conduct is irrelevant.

Risky Business

United States v. Lynch, No. 05-6048-cr (2d Cir. February 27, 2008) (Calabresi, Raggi, Hall, CJJ)

David Lynch received a 15-year sentence under the Armed Career Criminal Act (ACCA) and appealed. In an opinion that covered no new ground, the circuit affirmed. It held (again) that New York State convictions for attempted burglary in the third degree (N.Y. Penal Law §§ 110/140.20) and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03) both involve "conduct that presents a serious potential risk of physical injury to another."

For the attempted burglary, the court reaffirmed its decision in United States v. Andrello, 9 F.3d 247 (2d Cir. 1993) (per curiam), and also noted that a recent Supreme Court case, James v. United States, 127 S.Ct. 1586 (2007), held that attempted burglary is an ACCA predicate.

Similarly, in United States v. Danielson, 199 F.3d 666 (2d Cir. 1999) (per curiam), the court held that a conviction of second-degree weapon possession, after a jury verdict, was an ACCA predicate. Here, the court rejected Lynch's arguments that (1) the rule should be different after a guilty plea and (2) that, since Lynch did not expressly admit all of the elements of the offense in his state court plea, the conviction was not covered by ACCA.

Burglar Alarm

United States v. Brown, No. 05-5462-cr (2d Cir. January 30, 2008) (Kearse, Hall, CJJ, Rakoff, DJ)

This opinion deals with a seemingly straightforward issue: whether a New York State conviction for burglary in the third degree is a “crime of violence” under Guidelines section 4B1.2(a). It turns out, however, that the issue has a complication.

In Brown’s case, the district court held that the burglary conviction increased his offense level under U.S.S.G. § 2K2.1(a), which uses the Chapter 4 definition of crime of violence. The complication is that, under this definition, a crime of violence is “an offense . . . that . . . is burglary of a dwelling . . . or otherwise involves conduct that presents a serious potential risk” of injury. The New York statute proscribes burglary of a “building,” which is broader than a “dwelling,” thus third-degree burglary can only be a crime of violence under the Guideline definition if it falls within the residual, “otherwise involves” clause.

There is a compelling argument that the Guideline language limiting the definition of crime of violence to the "burglary of a dwelling" forecloses applying the “otherwise involves” clause to a non-dwelling burglary. In fact, there is a circuit split on this question, and so far neither the Supremes nor the Sentencing Commission has answered it.

Here, the circuit held that a New York conviction for burglary three is a crime of violence under the Guidelines, but it got there in a roundabout way. Instead of addressing directly this important question of Guidelines interpretation, the court relied on its decision in United States v. Andrello, 9 F.3d 247 (2d Cir. 1993), which held that the identical residual clause in 18 U.S.C. § 924(e) covered a New York conviction for attempted burglary in the third degree. The court then concluded, without explaining why, that the residual clause in the Guideline definition applied to non-dwelling burglaries and thus that, based on Andrello, third-degree burglary is a crime of violence under the Guidelines.

Comment: This opinion is bizarre. By refusing to take a position on the Guidelines interpretation issue, the Court has made a huge mess out of something that could have been resolved very simply. As it happens, Andrello is inapposite, since it did not deal with the interpretive question presented here. In Andrello, the court considered a definition of “crime of violence” that includes “burglary” or an offense that “otherwise involves” a risk of injury. However, unlike the Guidelines definition, the statute does not limit the “burglary” prong to dwellings. Andrello did not expressly consider whether the limitation to “burglary” in the first part of the definition precluded applying the residual clause to attempted burglary, which would have been analogous to the question here. Andrello simply held that attempted burglary was covered by the “otherwise involves” clause because of its inherent risks. Clearly, then, that case has little to do with Brown’s issue. So now we are left with a decision applying the residual clause to a non-dwelling burglary, but with no relevant, Guideline or statutory-interpretation based reasoning behind it. Sloppy work, indeed!