United States v. Anglin

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0098p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

-

-

-

No. 08-5018

v.

,

>

-

Defendant-Appellant. -

ERNEST WAYNE ANGLIN,

-

N

Appeal from the United States District Court

for the Middle District of Tennessee at Columbia.

No. 04-00013—Todd J. Campbell, Chief District Judge.

Submitted: February 25, 2009

Decided and Filed: April 7, 2010

*

Before: MOORE and GILMAN, Circuit Judges; RUSSELL, Chief District Judge.

_________________

COUNSEL

ON BRIEF: Caryll S. Alpert, Michael C. Holley, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Byron M. Jones,

ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Ernest Wayne Anglin pled guilty to

a single count of bank robbery. The district court originally sentenced him to 168

months of imprisonment, based in part on its conclusion that Anglin’s prior conviction

under the federal escape statute was a “crime of violence” for the purpose of determining

*

The Honorable Thomas B. Russell, Chief United States District Judge for the Western District

of Kentucky, sitting by designation.

1

No. 08-5018 United States v. Anglin Page 2

his status as a career offender. On appeal, this court remanded for resentencing in light

of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), but

affirmed the district court’s conclusion that Anglin’s federal escape conviction was

properly considered a crime of violence.

Anglin was resentenced to 151 months of imprisonment on remand. He appeals

once more, again arguing that his conviction under the federal escape statute was not a

crime of violence. Based on intervening decisions by the Supreme Court and this court,

we REVERSE the judgment of the district court and REMAND the case for

resentencing consistent with this opinion.

I. BACKGROUND

In June 2004, Anglin was indicted on one count of bank robbery, in violation of

18 U.S.C. § 2113(a). Anglin pled guilty in September 2004. The Presentence Report

(PSR) concluded that Anglin should be sentenced as a career offender under U.S.

Sentencing Guideline (U.S.S.G.) § 4B1.1 because he had two prior convictions for

“crimes of violence”: a 1984 Tennessee conviction for burglary and a 1995 conviction

for violating the federal escape statute, 18 U.S.C. § 751(a). Anglin conceded the

existence of both convictions, but contended that they were not crimes of violence. The

district court rejected his arguments. Based on Anglin’s career-offender status, the

district court then calculated a Sentencing Guidelines range of 151 to 188 months and

ultimately sentenced Anglin to 168 months’ imprisonment, three years of supervised

release, $266 in restitution, and a special assessment of $100.

Anglin appealed, arguing that the district court erred by treating the Guidelines

as mandatory. Finding Anglin’s argument meritorious, this court remanded the case for

resentencing under Booker. United States v. Anglin, 169 F. App’x 971, 975 (6th Cir.

2006) (Anglin I). The court, “in the interests of judicial economy,” also addressed

Anglin’s argument that his 1995 federal escape conviction was not a crime of violence.

Id. at 973. It stated that “we need not examine the specifics of Anglin’s escape, and we

No. 08-5018 United States v. Anglin Page 3

hold that the district court did not err in its guideline calculations by treating the escape

conviction as a crime of violence.” Id. at 975.

In December 2007, Anglin was resentenced to 151 months of imprisonment,

again over his objection to considering his 1995 conviction as a crime of violence.

Anglin has timely appealed his new sentence, limiting his argument to the issue of

whether his conviction for violating the federal escape statute was a crime of violence.

II. ANALYSIS

A. Standard of review

We review de novo a district court’s interpretation of the Sentencing Guidelines.

United States v. Williams, 411 F.3d 675, 677 (6th Cir. 2005).

B. Anglin’s career-offender status

U.S.S.G. § 4B1.1(a) provides that a defendant should be sentenced as a career

offender, and thus subject to harsher penalties, if

(1) the defendant was at least eighteen years old at the time the defendant

committed the instant offense of conviction; (2) the instant offense of

conviction is a felony that is either a crime of violence or a controlled

substance offense; and (3) the defendant has at least two prior felony

convictions of either a crime of violence or a controlled substance

offense.

A crime of violence, in turn, 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.

U.S.S.G. § 4B1.2(a). Anglin was previously convicted of violating the federal escape

statute, 18 U.S.C. § 751(a), which provides that

No. 08-5018 United States v. Anglin Page 4

[w]hoever 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 under this title or

imprisoned not more than five years, or both.

Because this statute does not include the actual, attempted, or threatened use of physical

force as one of its elements, and because escape is not one of the crimes specifically

enumerated in U.S.S.G. § 4B1.2(a), the relevant issue is whether a violation of § 751(a)

“otherwise involves conduct that presents a serious potential risk of physical injury to

another.” U.S.S.G. § 4B1.2(a).

To answer this inquiry, we must first ask whether the crime presents “a serious

potential risk of violence akin to the listed crimes.” United States v. Ford, 560 F.3d 420,

421 (6th Cir. 2009). We next determine if the crime of escape involves “the same kind

of ‘purposeful, violent, and aggressive conduct’ as the listed crimes.” Id. (quoting Begay

v. United States, 553 U.S. 137 (2008)). In answering these questions, we generally use

a “categorical” approach, in which we look to the statutory elements of the crime, rather

than the facts underlying the specific conviction at issue. Id. at 422. But, “[i]f it is

possible to violate a criminal law in a way that amounts to a crime of violence and in a

way that does not, we may look at the indictment, guilty plea and similar documents to

see if they ‘necessarily’ establish the nature of the prior offense.” Id. We must also keep

in mind that whether a prior conviction is a crime of violence is a matter of federal law,

regardless of whether the defendant was convicted of violating a federal escape statute

or a state escape statute. U.S.S.G. § 4B1.2(a).

This court held in Anglin I that a § 751(a) escape conviction is categorically a

crime of violence, without regard to the particular circumstances of the offender’s

conviction. Anglin I, 169 F. App’x at 975. Many other circuits had reached a similar

conclusion. See, e.g., United States v. Bryant, 310 F.3d 550, 553-54 (7th Cir. 2002);

United States v. Ruiz, 180 F.3d 675, 677 (5th Cir. 1999); United States v. Dickerson,

No. 08-5018 United States v. Anglin Page 5

77 F.3d 774, 777 (4th Cir. 1996). Indeed, when Anglin I was decided, Sixth Circuit

caselaw held that all escape convictions were crimes of violence. See Ford, 560 F.3d

at 423.

The government argues that the “law of the case” mandates that we adhere to

Anglin I’s holding. “As most commonly defined, the doctrine of the law of the case

posits that when a court decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same case.” Christianson v. Colt

Indus. Operating Corp., 486 U.S. 800, 815-16 (1988) (alterations and citation omitted).

This rule, however, is not absolute. “A court has the power to revisit prior decisions of

its own . . . in any circumstance, although as a rule courts should be loathe to do so in

the absence of extraordinary circumstances such as where the initial decision was clearly

erroneous and would work a manifest injustice.” Id. at 817 (citation and internal

quotation marks omitted).

Two intervening cases have undermined Anglin I’s conclusion and force us to

reconsider the issue. The first is Chambers v. United States, 129 S. Ct. 687 (2009),

where the Supreme Court held that a conviction for a “failure to report” under an Illinois

statute was not a “violent felony” for the purposes of the Armed Career Criminal Act

(ACCA). Id. at 691, 693. (A crime of violence under U.S.S.G. § 4B1.2(a) and a violent

felony under ACCA are treated the same because the laws contain materially similar

definitions. See Ford, 560 F.3d at 421.) The defendant, Chambers, had been sentenced

to 11 weekends of incarceration, but had failed to report to the prison on four occasions.

Chambers, 129 S. Ct. at 690. Chambers was convicted of violating the Illinois escape

statute, titled “Escape; failure to report to a penal institution or to report for periodic

imprisonment,” which provides that

[a] person convicted of a felony or charged with the commission of a

felony . . . who intentionally escapes from any penal institution or from

the custody of an employee of that institution commits a Class 2 felony;

however, a person convicted of a felony . . . who knowingly fails to

report to a penal institution or to report for periodic imprisonment at any

time or knowingly fails to return from furlough or from work and day

No. 08-5018 United States v. Anglin Page 6

release or who knowingly fails to abide by the terms of home

confinement is guilty of a Class 3 felony.

720 Ill. Comp. Stat. 5/31-6(a). Because the statute prohibits several different types of

conduct, the Supreme Court stated that it “must decide whether for ACCA purposes a

failure to report counts as a separate crime.” Chambers, 129 S. Ct. at 691. It then went

on to determine that a failure to report is indeed a separate crime:

[W]e believe that a failure to report . . . is a separate crime,

different from escape . . . , and from the potentially less serious failure to

abide by the terms of home confinement . . . . The behavior that likely

underlies a failure to report would seem less likely to involve a risk of

physical harm than the less passive, more aggressive behavior underlying

an escape from custody. Moreover, the statute itself not only lists escape

and failure to report separately (in its title and its body) but also places

the behaviors in two different felony classes . . . of different degrees of

seriousness.

At the same time, we believe the statutory phrases setting forth

various kinds of failure to report (or to return) describe roughly similar

forms of behavior. Each is characterized by a failure to present oneself

for detention on a specified occasion. All amount to variations on a

single theme. For that reason we consider them as together constituting

a single category. We consequently treat the statute for ACCA purposes

as containing at least two separate crimes, namely escape from custody

on the one hand, and a failure to report on the other.

Id. (citations omitted). Finally, the Court concluded that a failure to report is not a

violent felony because “the crime amounts to a form of inaction, a far cry from the

purposeful, violent, and aggressive conduct” at issue in the enumerated crimes. Id. at

692 (internal quotation marks omitted).

The other intervening case is United States v. Ford, 560 F.3d 420 (6th Cir. 2009),

where this court applied Chambers to hold that a “walkaway escape” under Kentucky

law is a not a crime of violence under U.S.S.G. § 4B1.1. Id. at 426. Ford was convicted

of violating Ky. Rev. Stat. § 520.030, which provides that “[a] person is guilty of escape

in the second degree when he escapes from a detention facility or, being charged with

or convicted of a felony, he escapes from custody.” To determine whether a violation

of this provision is a crime of violence under federal law, the Ford court specifically

No. 08-5018 United States v. Anglin Page 7

drew a distinction between escape from a secured setting and “walking away,” even

though the statute itself does not make such a distinction. The court reasoned as follows:

Much as failures to report to custody represent a distinct form of escape,

. . . so do walkaways. 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 removing a

physical restraint, without breaking a lock on a door, without climbing

over a prison wall or security fence or without otherwise breaking

through any other form of security designed to keep them put. An

unauthorized departure from a halfway house comes to mind, as does an

unauthorized departure from an unsecured facility.

Ford, 560 F.3d at 424 (citations omitted). The court also noted that “a walkaway escape

does not present the risk of physical injury to others” nor involves “the same type of

‘purposeful, violent, and aggressive’ conduct that the listed crimes of violence do.” Id.

at 424-25 (emphases in original) (quoting Chambers, 129 S. Ct. at 692).

In light of Chambers and Ford, Anglin I’s holding that a conviction under the

federal escape statute is categorically a crime of violence is no longer good law. See,

e.g., United States v. Hart, 578 F.3d 674, 681 (7th Cir. 2009) (holding that, in light of

Chambers, a violation of § 751(a) is not a crime of violence as a categorical matter);

United States v. Charles, 576 F.3d 1060, 1069 (10th Cir. 2009) (applying Chambers and

Ford in remanding the case for the district court to determine whether the defendant’s

conviction under § 751(a) was a crime of violence); Addo v. Att’y Gen., No. 05-4076,

2009 WL 4755712, *4-5 (3d Cir. Dec. 14, 2009) (applying Chambers and holding that

an immigrant’s conviction under § 751(a) for failing to return to a community treatment

center is not a crime of violence for removal purposes).

Anglin I, like other pre-Chambers cases from this circuit and others, turned on

the reasoning that “every escape scenario is a powder keg” because “[a] defendant who

escapes from jail is likely to possess a variety of supercharged emotions” and “violence

could erupt at any time.” Anglin I, 169 F. App’x at 974 (citation omitted). Under this

theory, even a walkaway escape presents “a serious potential risk that injury will result

when officers find the defendant and attempt to place him in custody.” Id. (citation

No. 08-5018 United States v. Anglin Page 8

omitted). Plainly, after Chambers and Ford, the powder-keg theory has little, if any,

continuing persuasiveness.

Like the Kentucky statute at issue in Ford, § 751(a) prohibits a broad range of

behavior, including an escape with the use of force at one end and a failure to report at

the other. See Hart, 578 F.3d at 681 (“[T]he federal escape statute covers a wide range

of conduct, from violent jailbreaks to quiet walkaways to passive failures to report.”).

It thus encompasses at least three distinct crimes: (1) failure to report, (2) so-called

walkaway escapes, and (3) other escapes, the latter category including escapes from

secure facilities and escapes using force or the threat of force. Under Chambers, a

§ 751(a) conviction for failing to report is not a crime of violence under U.S.S.G.

§ 4B1.1. See Chambers, 129 S. Ct. at 693. Similarly, under Ford, a walkaway escape

under § 751(a) is not a crime of violence for career-offender purposes. See Ford, 560

F.3d at 426.

The record in the present case is insufficient for us to determine the nature of

Anglin’s § 751(a) conviction. The PSR states that the escape conviction stemmed from

Anglin’s leaving a prison camp in Alabama. But as this court has previously held,

factual information contained in a PSR may not be considered in determining the nature

of a defendant’s prior conviction. United States v. Wynn, 579 F.3d 567, 575-76 (6th Cir.

2009); United States v. Bartee, 529 F.3d 357, 361 (6th Cir. 2008). The statements in

Anglin’s PSR, moreover, do not resolve the question of whether his escape should be

considered a crime of violence.

On remand, in determining whether Anglin qualifies as a career offender, the

district court should consider “the terms of the charging document, the terms of a plea

agreement or transcript of colloquy between judge and defendant in which the factual

basis for the plea was confirmed by the defendant, or . . . some comparable judicial

record of this information.” See Shepard v. United States, 544 U.S. 13, 26 (2005); see

also United States v. Baker, 559 F.3d 443, 455 (6th Cir. 2009) (cautioning that the

Supreme Court has limited district judges to consideration of the sources listed in

Shepard); Bartee, 529 F.3d at 359 (same).

No. 08-5018 United States v. Anglin Page 9

The government bears the burden of proving that Anglin’s 1995 escape

conviction was a crime of violence under U.S.S.G. § 4B1.1(a). See Baker, 559 F.3d at

455 n.10. If the government does not meet its burden, the district court may not use

Anglin’s escape conviction to resentence him as a career offender.

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the judgment of the district

court and REMAND the case with instructions to determine whether Anglin’s § 751(a)

conviction should be categorized as a crime of violence in light of Chambers and Ford.