Petition for Writ of Certiorari — Chambers v. United States

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TOL

IN THE

Supreme Court of the Rnited Stutes

DEONDERY CHAMBERS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

PHitie J. KAVANAUGH ROBERT N. HOCHMAN*

FEDERAL PUBLIC DEFENDER S!IOLEY AUSTIN LLP

SOUTHERN DistRiCr OF ILLINOIS One South Dearborm

ANDREA L. SMITH Chicago, Filinois 60603

650 Missouri Avenue 312-853-7000

East St. Louis, Illinois 62201

(618) 482-9050 JEFFREY T. GREEN

SIDLEY AUSTIN LLP

SARAH O’ ROuRKE SCHRUP 1501 K Street N.W.

NORTHWESTERN UNIVERSITY Washington, D.C. 20005

SUPREME COURT PRACTICUM (202) 736-8000

357 East Chicago Avenuc

Chicago, Minois, 60611

(312) 503-0063

Counsel for Petitioner

May 8, 2007 * Counsel of Record

QUESTION PRESENTED

Whether:a defendant's failure to report for confinement

“involves conduct that presents a serious potential risk of

physical injury to another” such that a conviction for cscape

based on that failure to report is a “violent felony” within the

meaning of the Armed Carcer Criminal Act, 18 U.S.C.

§ 924(e).

PARTIES TO THE PROCEEDING

The only parties to the proceeding are those appearing in

the caption to this petition.

TABLE OF CONTENTS

QUESTION PRESENTED .0.......-cssssscccccesssseseeseeece cee

PARTIES TO THE PROCEEDING .........ccccocccee ce

TABLE OF AUTHORITIES .........00-cc0--ccsssssseseeeses sooo

Se ema ea

REASONS FOR GRANTING THE PETITION.............

Esch tivscpivssctnita dasentsistaiestineninlascineneneneieieninesses

(111)

Page

TABLE OF AUTHORITIES

CASES Page

James v. United States, 127 S. Ct. 1586 (2007)... passim

Leocal v, Ashcroft, 543 U.S. 1 (2004)...

Taylor v. United States, 495 U.S. 575 (1990)......... 12

United States v. aeeenuna 983 F.2d 1306 (4th Cir.

1993)... seat 10

United States v. sain, 169 FE ‘App’? x O71 (6th

Cir. 2006), cert. denied, 127 S. Ct. 1249

United States v. Doe, 960 F.2d 221 (Ist Cir.

CR Seats ot Aas Moe OOD ae ee . 14, 16,17

United States vy. Gay, 251 F.3d 950 (lith Cir.

United States v. Golden, 466 F.3d 612 (7th Cir.

2006). petition for cert. filed, No. 06-1075]

Se I NIE sic 2scichticiinicenbeiattassmiieidianastininta 11,16

United States v. Gosling, 39 F.3d 1140 (10th Cir.

Fea elhcscsinciesinthostinisinisshssecinbesecesmsenestenilannicaonsetssse 9,10

United States v. Keily, 422 F.3d 889 (9th Cir

RENE LEA el Oe So Rd 14

United States v. Luster, 305 F.3d 199 (3d Cir

REAR SEY eo a eT Eee er 4,8, 10

United States v. Mathias, No. 06-4109, 2007 WL

10979582 (4th Cir. Apr. 13, 2007) 000000000 ou... 4,9, 10

United States v. Nation, 243 F.3d 467 (8th Cir.

IS icicsheliicaaiasisdiiaicidtiesdananigiahviegie Géanibeibdatinnitanioat 4,9

United States v. Piccolo, 44) F.3d 1084 (9th Cir.

Oe 3, 1

United States v. Rivera, 127 F. App’x 543 (2d

a ad 4,8

United States v. Ruiz, 180 F. 3d 675 (Sth Cir.

STi cscecsot talc teeelnbetn eabcbentondeneildploaitea 4,9

United States v. Shepard, 544 U. S. 13 (2005)....... 12, 18

United States v. Thomas, 333 F.3d 280 (D.C. Cir.

ER sulibsinieloiaiediensldistieciie 3,4, 11, 22, 15

TABLE OF AUTHORITLES—CONTINUED

Page

United States v. Turner, 285 F.3d 909 (10th Cir.

See hsceccwesiodssisishebletibiabisicuitidigitnisiieidaitadalian tede ii 4,9, 10

United States v. Wardrick, 350 F.3d 446 (4th Cir.

Sie alocihnchitnceulsdihiaesehibaiindhdbatteeuituaiiesmiadiaicaadat tines 14

United States v. Winn, 364 F.3d 7 (Ist Cir.

Stitt cssshostitciicedidinseiiasainatetapbammaitanaasaastedatadi 4, 8,9, 10

STATUTES

I isiicsessnsesaapssaieiinnsinetiniiions asntied passim

SS POR Pe ye y)

SI res rere se eons 13

RI I snc trcsscccconsrcsconsnsnsnenssonntenies 13

le Ce FRR BOD cess ssecnvesecscossoseess 13

a 6, 12

eels Ss EN AIRED? cbcccnccevsitesunnsessesnsvescsenbotsis 13

18 Pa. Cons. Stat. Ann. § S12] dB

LEGISLATIVE HISTORY

H.R. Rep. No. 98-1073 (1984) oo ceeeeceee 16

OTHER AUTUORITY

ES esa aia cree =. 9

IN THE

Supreme Court vf the United States

No. 06-

DEONDERY CHAMBERS,

Petitioner.

UNSTED STATES OF AMERICA,

Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Deondery Chambers respectfully requests that a

writ of certiorari issue to review the judgment of the United

States Court of Appeuls for the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Seventh Circutt was entered on January 9, 2007. It has been

officially reported and can be found at United States v.

Chambers, 473 F.3d 724 (7th Cir. 2007). It is reproduced in

the Appendix at la-7a. The district court held a sentencing

hearing on May 12, 2006 at which the judge orally ruled that

the defendant's prior conviction for escape under Illinois law

was a “violent felony” within the meaning of the Armed

Career Criminal Act, 18 U.S.C. § 924(e). The relevant

portion of the transcript is reproduced in the Appendix at 18a-

27a.

JURISDICTION

The court of appeals issued its opinion on January 9, 2007.

Petitioner tumely sought rehearing, which was denied on

February 16, 2007. Pet. App. 14a. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254.

STATUTORY PROVISION INVOLVED

18 U.S.C. 924(e) provides, in pertinent part, as follows:

(e)(1) In the case of a person who violates section 922(z)

of this title and has three previous convictions by any

court referred to m section 922(g)(1) of this title for a

violent felony or a serious drug offense, or both,

committed on occasions different from one another, such

person Shall be fined under this utle and imprisoned not

less than fifteen years, and, notwithstanding any other

provision of law, the court shall not suspend the

sentence of, or grant a probationary sentence to, such

person with respect to the conviction under section

922(g).

(2) As used in this subsection—

- &

(B)the term “violent felony” means any crime

punishable by imprisonment for a term exceeding one

year, or any act of juvenile delinquency involving the

use or carrying of a firearm, knife, or destructive

device that would be punishable by imprisonment for

such term if commutied by an adult, that

(i) has as an element the use, attempted use, or

threatened use of physical force against the person

of another; or

(1\) 1s burglary, arson, or extortion, involves use

of explosives, or otherwise involves conduct thal

presents a scnious potential nsk of physical injury

to another.

STATEMENT OF THE CASE

This case presents a mature split of authority regarding a

recurring issue that members of this Court have recently

acknowledged requires this Court's attention. The Armed

Career Cnminal Act (“ACCA”) provides an enhanced 15 year

mandatory minimum sentence, and up to life imprisonment,

for anyone guilty of being a felon im possession of a firearm,

in violation of 18 U.S.C. § 922(e)(1), who had previously

been convicted of three serious drug and/or violent felonies.

18 U.S.C. § 924(e). Without the ACCA enhancement, the

statulory maximum sentence for a violation of § 922(g)(1) is

len years.

The Courts of Appeals have diverged over whether a prior

conviction for escape based on a failure to report to

confinement is a “violent felony” within the meaning of the

ACCA. Unlike a prison break from secure custody, a failure-

to-report escape docs not involve breaking free from the

physical custody of an officer of the state or a secure

detention facility. Failure-to-report escapes occur when a

detainee is, for any of a number of reasons, provided the

opportunity to move about the community without

supervision for a limited period of time, but fails to return or

report to his or her facility within the appointed time. It is a

crime of omission.

There is a 10 to 2 split of authority on whether all escapes

should be treated as violent crunes for purposes of career

offender status. The Ninth Circuit has held that a failure-to-

report escape is not a violent crime. United States v. Piccolo,

44] F.3d 1084, 1088-90 (9th Cir. 2006). The D.C. Circuit has

also indicated that it would not treat a failure-to-report escape

as a violent crime, and recognized that failure-to-report

escapes arc differcnt from both prison breaks from secures

facilities and escapes from the physical custody of an officer.

United States v. Thomas, 333 F 3d 280, 282-83 (D.C. Cir.

2003).' In the decision below, Judge Posner acknowledged

“{ajs an original mattcr, one might have doubted whether

failing to report to prison, as distinct from escaping from a

jail, prison, or other form of custody, was a crime that

typically or oftcn ‘involves conduct that presents a scrious

potential risk of physical injury to another." Pet. App. 2a

(quoting United States v. Golden, 466 F.3d 612, 616-17 (7th

Cir. 2006) (Williams, J., dissenting)). But the Seventh Circuit

pancl below was bound by prior Seventh Circuit decisions

which had held that all escapes arc violent crimes. /d. Nine

other circuits have so held. United States v. Winn, 364 F.3d

7, 12 (ist Cir. 2004); United States v. Rivera, 127 F. App’x

543, 545 (2d Cir. 2005) (citing United States v. Jackson, 301

F.3d 59 (2d Cir. 2002)); United States v. Luster, 305 F.3d

199, 202 (3d Cir. 2002); United States vy. Mathias, No. 06-

4109, 2007 WL 1097952, at *3-5 (4th Cur. Apr. 13, 2007);

United States v. Ruiz, \80 F.3d 675, 676-77 (Sth Cir. 1999);

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

2006) (citing United States v. Harris, 165 F.3d 1062 (6th Cir.

1999)), cert. denied, 127 S. Ct. 1249 (2007), United States v.

Nation, 243 F.3d 467, 472 (8th Cir. 2001); United States v.

Turner, 285 F.3d 909, 915-16 (10th Cir. 2002); United States

v. Gay, 251 F.3d 950, 952-55 (11th Cir. 2001) (per curiam).

This well developed split of authority warrants this Court's

review, especially in light of this Court’s recent decision m

James v. United States, 127 S. Ct. 1586 (2007). The relevant

provision of the ACCA defines “violent felony” by reference

to a list of specific, enumerated offenses (burglary, arson,

extortion or crimes involving the use of explosives). 18

U.S.C. § 924(e(2)(B)(ii). The ACCA also includes a residual

provision, covering any unenumerated felony that “otherwise

involves conduct that presents a serious potential risk of

' Thomas involved an escap: from the physical custody of an officer,

not a failure to report 333 F.3d at 282-83 As a result, the D.C. Circuit

did not have an occasion m 7homas to apply us view that failure-to-report

escapes “may not inherently create a risk of harm to others.” /d at 283.

physical injury to another.” /d Because James mvolved a

crime analogous to an enumerated offense (attempted

burglary), the majority opinion declined to provide a standard

for determining whether an offense that is not analogous to an

enumerated offense is a “violent felony” within the meaning

of the ACCA. James, 127 S. Ct. at 1598. The dissenting

opinion argued that leaving such a substantial gap in the

interpretation of a frequently invoked federal criminal statute

ill serves courts and counsel. /d. at 1601-02 (Scalia, J.,

dissenting). The majority did not disagree that this Court's

guidance is needed. It mercly noted that a case involving a

crime analogous to an enumerated offense was not an

appropriate vehicle for an opinion that provides a standard for

determining, when a cnme that ts not analogous to an

enumerated offense is a “violent felony.”

This case 1s an excellent vehicle to address this substantia!

gap in the interpretation and application of the ACCA.

Failure-to-report escapes cocur frequently, and as the body of

appellate decisions ruling on whether such cscapes are violent

crimes indicates, they are often relied upon to support an

enhanced sentence for armed carcer offenders Failure-to-

report escapes are not analogous to any of the crimes

specifically enumerated as violent felonies in the ACCA.

There is no ambiguity in the record that petitioner’s prior

conviction for “escape” under JIlinois law was for a failure to

report to confinement, not a physical break from a secure

facility or the custody of a state official.

In short, this case provides a strong vehicle for this Court to

address a question of statutory interpretation that its own

recent decision indicates is urgently needed. There is a well

developed split of authority on the question that, as Judge

Posner’s opimon indicates, will persist by force of circuit

precedent in the absence of action by this Court. The petition

should be granted.

1. Petitioner pled guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g). Pet. App. la. The

indictment also charged that petitioner had violated 18 U.S.C.

§ 924(e), the ACCA provision that provides for a mandatory

minimum sentence of 15 years in prison for those violating

§ 922(g) who have previously committed three serious drug

and/or violent felomies. /d. at 15a. The prosecution subse-

quently filed an information identifying the three predicate

convictions it claumed were qualifying felonics under the

ACCA that supported sentencing under 18 U.S.C. § 922(e).

One of the convictions was for escape under Ithnois law on

June 30, 1999. Jd. at 16a.

Illinois law defines an escape to include both breaking free

from physical confinement (one who “escapes from any penal

institution or from the custody of an employee of that

institution”) and also failure-to-report escapes (one 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 release or who

knowingly fails to abide by the terms of home confinement”).

720 ILCS 5/31-6(a). There is no dispute that Chambcrs's

“escape” was a failure-to-report, the Illinois charging

docuinent made clear that petttioner had been charged with

knowingly failing to report for incarceration on various dates.

Pet. App. 22a.

The trial court held a sentencing hearing at which petitioner

challenged the categorization of his failure-to-report escape

conviction as a “violent felony” within the meaning of the

ACCA. The district court, citing Seventh Circuit precedent,

stated that “for reasons of simplicity ... escape is escape.

And we’re not going to get into the nuances of it for purposes

of the sentencing statute.” Pet. App. 27a. Following Seventh

Circuit authority, the district court refused to treat a failure-to-

report escape as different from a custodial escape, and thus

concluded that petitioner was an armed “career offender

under the statute.” /d.

The conclusion that petitioner was an armed career offender

under § 924(e) substantially enhanced his sentence, raising

his statutory minimum from 0 to 15 years, and his maximum

from 10 years to life. Treating him as an armed carcer

criminal, the district court also applied Section 4A1.4 of the

Sentencing Guidelines, which incorporates the ACCA,

resulting in a Guidelines range of 188 to 235 months. The

distnct court sentenced petitioner to the low end of that range,

188 months, which is slightly above the statutory mandatory

minimum of 15 years under the ACCA. Had he not been

treated as an armed career criminal, petitioner’s guidelines

range would have been 130 to 162 months. Pet. App. |a-2a.

But he would not have been sentenced to more than 120

months because that would have been the statutory maximum

for his offense.

2. Petitioner appealed his sentence, and the Seventh Circuit

affirmed. Judge Posner’s opinion for the court begins by

noting that it “might [be] doubted” that a failure-to-report

escape is typically or often a crime that poses a serious risk of

physical harm to others. Pet. App. 2a. The opinion also

explicitly acknowledges a split of authority regarding thc

treatment of failure-to-report escapes as a violent crime undcr

the ACCA. Id. at 2a-3a. And the opinion further recognizes

ihe propriety and ease of distinguishing a failure-to-report

escape from “jail or prison breaks” for the purpose of deter-

mining whether the escape at issue is a violent crime under

the ACCA. dd. at 3a.

Nonetheless, the panel chose to adhere to tis own court’s

precedent and held that pctitioner’s fatlure-to-report escape

was properly considered a violent felony under the ACCA.

Pet. App. 3a-4a. Nonetheless, the opinion notes that the rule

treating failure-to-report escapes like pnson breaks “is an

embarrassment to the law” because it is based on “a

conjecture as to the possible danger of physical injury posed

by criminals who fail to show up to begin serving their

sentences or fail to return from furloughs or to halfway

houses.” /d at 4a. The decision further criticizes the

reasoning of the “head of the line of cases that lump all

escapes together, United States v. Gosling, 39 F.3d 1140,

1142 (10th Cir. 1994)"—that every escape carries the

potential for violence because of the “supercharged emotions”

that may cause an escapee to “feel threatened by police

officers, ordinary citizens, or even fellow escapees.” Pet.

App. 4a. According to the court, this rationale amounted to

“ruminations [that] should not be treated as authoritative” for

failure-to-report escapes. /d. at Sa. The Seventh Circuit casts

further doubt on the majority view by noting that “if the

courts insist on lumping all escapes together in detcrmining

whether escape is a crime of violence, the enormous

preponderance of [failure-to-reports (according to a recent

study, nearly 90%)} could well compel a conclusion that

escape is never a crime of violence.” Jd. at 6a.

REASONS FOR GRANTING THE PETITION

The Seventh Circuit’s opinion acknowledges two critical

facts about the treatment of failure-to-report escapes: (1) there

is a well developed split of authority regarding whether a

failure-to-report escape should be deemed a “violent felony,”

and (2) the rationale for treating a failure-to-report escape as a

“violent felony” is weak. These facts alone would warrant

this Court’s review. But review in this case has been made

even more compelling by this Court’s decision in James,

which exposed the urgent need for this Court to address the

proper standard for determining whether a crime, such as a

failure-to-report escape, that is not analogous to those violent

crimes specifically enumerated in the ACCA should be

treated as a “violent felony” for purposes of the ACCA.

1. Ten courts, including the Seventh Circuit below, have

stated that all escapes should be treated as a violent crime.

Pet. App. 3a-4a (decision below); Winn, 364 F.3d at 12

(failure to return to halfway house); Rivera, 127 F. App’x at

545 (failure-to-report escape is a violent crime under ACCA)

(citing United States v. Jackson, 301 F.3d 59 (2d Cir. 2002)

(prisoner walking off from work program)); Luster, 305 F.3d

at 202 (treating a conviction as a crime of violence even when

“the statute clearly extends to a ‘walk away’ from custody not

involving any contemporary violence”); Mathias, 2007 WL

1097952, at *3-5 (walkaway from a work release program);

Ruiz, 180 F.3d at 676-77 (walkaway from prison camp

without barers and armed guards); Anglin, 169 F. App’x at

975 (reasoning that any conviction under the federal escape

statute, 18 U.S.C. § 751, is a crime of violence even though

the statute extends to conduct as simple as reporting late to

serve a sentence) (citing United States v. Harris, 165 F.3d

1062 (6th Cir. 1999)); Nation, 243 F.3d at 472 (stating that

“every escape, even a so-called ‘walkaway’ escape” is a

crime of violence); Turner, 285 F.3d at 915-16 (failure to

return to halfway house); Gay, 25] F.3d at 952-55 (walkaway

from non-secure diversion center).? As the decision below

notes, the rationale for this view that has been repeatedly

cited and followed by vanous circuits was articulated by the

Tenth Circuit in United States v. Gosling, 39 F.3d 1140, 1142

(10th Cir. 1994). Gosling was actually not a failure-to-report

case, but involved “willfully, unlawfully, and feloniously

escap[ing] from ... {a] County Jail.”” Jd. at 1142 (alterations

and omission in original). Nonetheless, the Gosling court

reasoned broadly:

every escape scenario is a powder keg, which may or

may not explode into violence and result in physical

injury to someone at any given time, but which always

has the serious potential to do so. A defendant who

escapes from a jail is likely to possess a vanety of

* Several of the cases involve appeals challenging the treatment of an

escape as a “crime of violence” undes the Sentencing Guidelines, U.S.S.G.

§ 4B1.2. The definition of “crime of violence” provided in that guideline

provision is nearly identical to the definition of “violent felony” in the

ACCA. Compare U.S.S.G. § 4B1.2, with 18 U.S.C. § 924(e)(2)(B). For

that reason, lower courts have treated cases interpreting this guideline

provision as no different from cases interpreting the ACCA, and vace-

versa. See Winn, 364 F.3d at 9 n.1 (noting uniform view of courts that

interpretation and application of Guidelines provision can be apphed to

ACCA).

supercharged emotions, and in cvading those trying to

recapture nim, may feel threatened by police officers,

ordinary citizens, or even fellow escapees. Conse-

quently, violence could erupt at any time. Indeed, even

in a case where a defendant escapes from a jail by stealth

and injures no one in the process, there is still a serious

potential risk that injury will result when officers find

the defendant and attempt to place him in custody.

id. (internal citation omitted). The Tenth Circuit’s reasoning

was a material (and unnecessary) extension of the case upon

which it relied, United States v. Aragon, 983 F.2d 1306 (4th

Cir. 1993). In Aragon, the Fourth Circuit had held that escape

from a federal prison was a crime of violence because of the

circumstances of the prison custodial setting. /d. at 1313.

That limited rationale would have been sufficient to support

treating Gosling’s escape from jai] as a crime of violence.

But the Tenth Circuit went further, looking beyond the

circumstances of the case to the potential circumstances of the

escapce’s later apprehension.

Gosling’s speculation regarding the potential for violence

during recapture has proved the essential justification for

treating failure-to-report escapes as violent crimes just like

jail or prison breaks. Winn, 364 F.3d at 12 (treating failure to

return to halfway house as violent crime because “there is still

a serious potential risk that injury will result when officers

find the defendant and attempt to place him in custody”),

Luster, 305 F.3d at 202 (emphasizing that “the escapee must

continue to evade police and avoid capture”); Mathias, 2007

WL 1097952, at *4 (“Even if the escape itself could somehow

sidestep any potential risk of injury, the circumstances of

recapture necessanly encompass just such a risk.”), Turner,

285 F.3c at 916 (“there is no way to predict what an escapee

will do when encountered by the authorities”). Indeed, the

Seventh Circuit decision which bound the panel below

specifically relied on the argument that “the potential for a

violent confrontation arises between the defendant and law

enforcement during the attempted capturc,” cven when the

escape crime was a merce failure to report to a correctional

facility or a halfway house. United States v. Golden, 466

F.3d 612, 614 (7th Cir. 2006), petition for cert. filed, No. 06-

10751 (U.S. Apr. 9, 2007).

Two courts have openly rejected the rationale behind the

majority view. The Ninth Circuit has specifically held that a

failure-to-retumm escape is not a crime of volence. Piccolo.

441 F.3d at 1088-90. The Ninth Circuit noted that failure-to-

report or walkaway escapes, do not involve the same nsk of

confrontation as an escape from secure confinement or

physical custody. /d. at 1088. Piccolo squarely rejected

Gosling, and its progeny, preciscly because the danger to

others posed by an escape from “a secured facility or the

custody of an armed guard” is not present when the escapee

leaves a halfway house with permission and fails to return.

fd. at 1089.

The D.C. Circuit has specifically discussed the recapture

rationale, and rejected it. Thomas, 333 F.3d at 282-83. Afler

noting that numerous courts have followed the reasoning of

Gosling, Thomas observed:

While it may be true “at the recapture of an escapee

inherently contains a msk of violent cncountcr between

the escapee and the arresting officers, the same ts true as

to the capture of any lawbreaker. Thus, one might argue

that under the approach of those circuits, all crimes

become crimes of violence ....

id. at 282. Though the Thomas court rejected the rationale of

Gosling, \t nonetheless concluded that the escape before it

was a crime of violence because Thomas’s crime was “escape

from an officer,” which creates a more apparent risk of

violence. /d. at 283. Anticipating the analysis in Piccolo, the

D.C. Circuit observed: “A prisoner not returning to a halfway

house or sneaking away from an unguarded position in the

night may not inherently create a risk of harm to others. A

prisoner escaping from the custody of an officer does create

such an inherent risk.” Jd.

In the decision below, Judge Posner was bound by circuit

precedent, but made clear his belicf that there is substantial

merit to the analyses of the Ninth and D.C. Circuits. He

specifically recognized that this Court’s dec:sions make it

perfectly appropriate to distinguishing between en escape

from physical custody on the one hand and a failure-to-report

or walkaway escape on the other. “The sentencing judge

would not have to dig beneath the charging document or the

other, limited evidence on which a judge is permitted by

United States v. Shepard, 544 U.S. 13 (2005), to decide

which bin a conviction for escape belonged in.” Pet. App.

3a.” He also pointed to the absurdity of the majority rule:

showing up an hour late to pnson could result in a 15-year

mandatory sentence under the ACCA. /d. at 2a.

Judge Posner's reservations about the result in this case

were not sufficient, however, to overcome the force of circutt

precedent. The same wil! remain true in the numerous other

circuits where the decision has already been made, based on

highly questionable reasoning, to treat all escapes as violent

cnmes. And the issue is likely to continue to arise with some

frequency. As the substantial body of decisions in the lower

courts demonstrates, a prior conviction for escape is

commonly relied upon as a predicate violent crime to support

an armed career offender sentence. Numerous Statutes,

including the Illinois statute at issue here, 720 [LCS 5/31-

6(a), and the federal escape statute, have been interpreted or

expressly define escape to include not only escape from the

physical custody of a state official or secure facility, but also

* This Court held m Sheperd that a subsequent court trying to determine

whether a prior conviction should be treated as a violent felony under the

ACCA may consider “the statutory definition, charging document, written

plea agreement, transcript of plea colloquy, and any explicit factual

findinp by the trial judge to which the defendant assented.” 544 US at

16; see also Taylor v. United States, 498 U.S. $75, 600-02 (1990).

failures to report and walkaways from non-secure facilities.

Sce, e.g., Anglin, 169 F. App’x at 974-75 (discussing the

breadth of the federal escape statute, [8 U.S.C. § 751); 18 Pa.

Cons. Stat. Ann §5121(a) (defining escape to include

“fail{ure} to return to official detention following temporary

leave granted for a specific purpose or limited period”); N.J.

Stat. Ann. 2C:29-5(a) (same); Ariz. Stat § 13-250] (same);

Cal. Penal Code § 4530 (subsection (c) defines escape to

include the “willful failure ... to retum” of those on

temporary releasc),; Ga. Code Ann. § 16-10-52 (subsection

(a(S) includes failure to return). Only this Court’s

intervention can resolve the split of authority and provide

uniform treatment of this frequently invoked provision that

produces such harsh sentences.

2. The need for this Court’s review of this issue has been

made even more urgent by this Court’s recent decision in

James v. United States, 127 S. Ct. 1586 (2007). In James,

this Court held that attempted burglary, as defined by Florida

law, is a violent felony for purposes of the ACCA’s residual

clause. /d. at 1590-91. The reasoning of the decision was,

however, kmited. This Court did not offer a generally

applicable method for determining whcther uncnumerated

crimes qualify as violent felonies under the ACCA’s residual

clause. The majority opinion did not purport to decide

whether attempted burglary, if it were defined differently than

it has been defined in Florida, would qualify as a violent

felony under the residual clause. /d. at 1595-96. Instead, it

simply determined that attempted burglary as defined by

Florida law “poses the same kind of risk” as completed

burglary (which is an enumerated violent felony under the

ACCA), and hence is properly considered a violent felony

under the residual clause. /d. at 1595.

The James majonty concedes that it did not provide any

guidance for lower courts with respect to whether a crime that

is not analogous to one of the enumerated crimes in the

ACCA is a violent felony. The majority acknowledged that

“provid[ing] guidance for the lowcr courts in future cases [is)

surely a worthy objective.” /d. at 1598. But James itself was

nol a proper case to do so because the case did not present

such a crime, and certain issues relevant to the inquiry had not

been briefed. [i

Justice Scalia’s dissenting opinion clabortated on why it is

sO important to provide a generally applicable, uniform stan-

dard that lowcr courts can use to decide whether an offense is

a “violent felony” within the meaning of the ACCA: without

such guidance, the court system is Icft without any way to

provide “an acceptable degree of consistency by tne hundred:

of district judges that impose sentences every day.” /d. at

1601 (Scalia, J., dissenting). The James dissent noted that

there arc numerous crimes that are not analogous to any of the

cnumerated offenses (burglary, arson, extortion, and crimes

involving the use of explosives, 18 U.S.C. § 924(e)(2)(B)i1)).

Justice Scalia himself provided various examples: driving

under the influence of alcohol, 127 S. Ct. at 1601-02 (Scalia,

J, dissenting) (citing Leocal v. Ashcroft, 543 U.S. 1 (2004)

(driving under the influence of alcohol does not pose a

“substantial risk that physical force against the person or

property of another may be used” under 18 U.S.C. § 16(b)),

and operating a dump truck without the consent of the owner,

id. at 1606 n.4 (Scalia, J., disscnting) (citing United States v.

Johnson, 417 F.3d 990 (8th Cir. 2005)). The list could

readily be multiplied: felon in possession of a firearm, United

States v. Doe, 960 F.2d 221, 222 (1st Cir. 1992) (Breyer, C.J.)

(hoiding that possession of firearms is not violent but noting

split of authority), unlawful transportation of hazardous

chemicals, which then-Chief Judge Breyer hypothesized in

Doe, id. at 225, attempting to elude a police vehicle, United

States v. Kelly, 422 F.3d 889, 893 (9th Cir. 2005) (holding

this offense was not a crime of violence), and resisting arrest,

United States v. Wardrick, 350 F.3d 446, 455 (4th Cir. 2003)

(holding that resisting arrest is a crime of violence). The

controlling opimon in James says nothing at all about how

lower courts are supposed to determine whether any crime

which is not analogous to onc of the enumerated cnmes 1n the

ACCA 1s a violent felony.

This case presents an ideal vehicle for resolving this

unanswered question, and providing lower courts a generally

applicable standard for determining whether crimes that are

not analogous to the enumerated crimes in the ACCA fall

within the ACCA’s residual provision for violent felonies.

Both the majority and the dissent in James acknowledged that

the crime of escape is not analogous to any of the enumerated

offenses. Jumes, 127 §. Ct. at 1598; id. at 1606 n.4 (Scalia,

J., dissenting). And both the majority and the dissent tn

James recognize that providing a generally applicable

standard for such crimes is a “worthy objective.” /d. at 1598;

id. at 1602 (Scalia, J., dissenting) (“imprecision and

indeterminacy are particularly inappropriate in the application

of a criminal statute. Years of pnson hinge on the scope of the

ACCA’s residual provision, yet its boundanes are ill

defined.”). Indeed, the urgency of providing some generally

applicable guidance ts heightened by the concern that the

Statute 1s otherwise impermissibly vague. /d. at 1609 (Scalia,

J., dissenting) (citing Kolender v. Lawson, 461 U.S. 352, 357

(1983)).

3. Accepting review of this case will also provide this

Court with an opportunity to place a principled hmit on the

scope of the residual clause. The Gos/ing rationale for treating

failure-to-report escapes as violent crimes is essentially

without limit, as the D.C. Circurt in Thomas correctly

recognized. If the fear of recapture is sufficient to give rise to

a “serous potential risk of injury to another,” 18 U.S.C.

§ 924(e2)(B\iu), then it is hard to see what cnme is not a

violent felony under the ACCA. All crimes carry a risk of

detection and, even if no detection occurs in the commission

of the crime, there always remains the risk of subsequent

capture. Thomas, 333 F.3d at 282. There is no reason to

believe that incividuals who fail to report for custody are

especially likely to engage in violence if confronied by an

officer seeking to capture them. Golden, 466 F.3d at 615

(Rovner, J., concurrmg) (arguing that, unlike escape from

custody, the “mere failure to report to custody in the first

instance does not reflect” a specific inclination to resist or

evade restraint).

Needless to say, uny reading of the residual provision that

expands it to encompass all or nearly all crimes is

problematic. The tcxt of the statute cannot be squared with

the view that Congress intended to impose its substantial

penalty (a 15-year mandatory minimum) for just any armed

repeat offender. The statute singles out certain of the most

dangcrous and socially destructive armed repeat offenders:

those with a history of violent felonious conduct and repeat

drug offenders. 18 U.S.C. § 924(e), H.R. Rep. No. 98-1073,

at 1-3 (1984) (discussing purpose of the cnhanced penalty,

which was to incapacilate the kinds of repeat violent

offenders that studies had shown were responsible for a high

volume of violent crime). “If Congress wanted ... [to]

subject{] a/! repeat offenders to a 15-ycar mandatory prison

term{[,} it could very easily have crafted a statute which said

that. ACCA ... was obviously not meant to have such an

effect.” James, 127 S. Ct. at 1609 (Scalia, J., dissenting);

Doe, 960 F.2d at 225 (refusing to treat a conviction for being

a felon in possession of a firearm as a violent crime because

to do so would “bring within the statute’s scope a host of

other crimes that do not seem to belong there”).

Further, the broad reading of the residual provision that is

necessary to conclude that failure-to-report escapes are

violent crimes is inconsistent with the language of the ACCA.

As then-Chief Judge Breyer observed, “The statute gives

several specific examples burglary, arson, extortion, usc of

explosives—and then adds, ‘er otherwise involves conduct

that presents a serious potential risk of physical injury to

another.” /d. at 224. When the act of committing the crime

at issue does not involve the serious potential for “active

violence,” id. at 225, then the text of the statute points away

from its inclusion as a “violent felony.” See Leocal v.

Ashcroft, 543 US. 1, 10-11 (2004) (delimng “crime of

violence” under i8 U.S.C. § 16(b) to mean “violent, active

crimes”).

This Court in James suggested that some limits to the

residual clause are still waiting to be articulated. The Court

concluded that Florida’s version of attempted burglary, which

required proof of an overt act to enter a structure, James, 127

S. Ct. at 1594, carned a sufficient potential risk of violence to

satisfy the residual clause. But, this Court noted, other

jurisdictions: allowed convictions for attempted burglary

based on conduct that poscs a lesser risk of confrontation with

others. /d. at 1596 n.4 (collecting cases where burglary was

defined to include merely “making a duplicate key” or

“casing [a] building” or neighborhoos) While this Court

withheld any judgment as to those statutcs. it noted that the

risk of violence presented by such crimes was “more

attenuated.” /d. at 1596.

This case presents a crime with a substantially “attenuated”

risk of violent confrontation. A failure-to-report escape does

not involve any active violence. Quite the contrary, a failure-

to-report escape involves no action at all, it is a crime of

inaction. There is no risk of violence in the commission of

such a crime precisely because there is no risk of

confrontation in the commission of the cnme. The individual

who fails to report is choosing not to come into contact with

others, or expose himself to coming into contact with law

enforcement officials. The only risk of violence that has even

been considered by the lower courts is not in the commission

of a failure-to-report cscape (as opposed to an escape from the

physical custody of an officer or a secure facility), but rather

in the potential for subsequent apprehension. This Court

should specifically rule that the nsk of violence in subsequent

apprehension may not, standing alone, provide the requisite

“serious potential risk” of harm to others for purposes of the

residual clause. 18 U.S.C. § 924(e)

Petitoner acknowledges, as the Seventh Circuit

cmphasized below, that there is a dearth of statistical evidence

concerning how frequently fatlure-to-repor’ or walkaway

escapes result in violence. Pet. App. 5a-6a. But this should

not deter this Court from engaging this question now. Courts

are today being forced to apply this stetute to crimes that are

not analogous to the enumerated violent felonies in the

ACCA. Decisions are, therefore, being made routinely on

less than perfect information. See James, 127 S. Ct. at 1608

(Scalia, J., dissenting) (noting that deciding whether to treat a

cnme as falling within the residual provision without hard

statistics “is an imponderable that cannot be avoided”). And

there is no way of knowing when the hoped-for data will

emerge, not only for failure-to-report escapes, but also for the

myriad other crimes that arguably fall within the residual

provision but are not analogous to any enumerated crime.

Also, it remains for this Court to decide which way the lack

of data cuts. It makes little sense to place upon the defendant

the burden of presenting data that a crime only infrequently, if

at all, involves harm to others, when it is the prosecution that

is seeking to enhance the defendant’s sentence based on its

argument that the crime is a “violent felony” within the

meaning of the ACCA. Indeed, as Justice Thomas has

observed, and again pointed out in his dissent in James, 127

S. Ct. at 1610 (Thomas, J., dissenting), allowing a judge to

resolve the contested question whether a particular prior

conviction was, in fact, for a “violent felony” raises serious

constitutional concerns under the Sixth Amendment.

Shepard, 544 U.S. at 27 (Thomas, J., concurring). Those

concerns are heightened when a court is asked to review

potentially contested dala and make a finding of fact

regarding the allegedly “violent” nature of a particular crime.

If such statistical evidence is necessary at all, the prosecution

should be required to produce it because the government

carries the burden of establishing that the defendant has three

prior convictions qualifying under the ACCA.

* + * &

In the end, this case presents this Court with an excellent

vehicle to resolve a split of authority conceming a frequently

recurring issue in federal criminal law. More broadly, this

case provides this Court with an opportunity to provide

generally applicable standards for how lower courts should

determine whether a crime that is not analogous to

enumerated crimes in the ACCA falls within the residual

clause. This Court has already indicated in James that

articulating such a standard is desirable. This is especially so

in light of the fact that, abscnt this Court's guidance, the

lower courts are articulating expansive rationales that cause

the restdual clause to encompass crimes far beyond the

ACCA’s text and purpose. This Court's review is urgently

needed.

CONCLUSION

This petition for writ of certiorari should be granted.

Respectfully submitted,

Cbs M0 Gobenan fp,

PHILIP J. KAVANAUGH! ROBERT N. HOCHMAN*

FEDERAL PUBLIC DEFENDER SIDLEY AUSTIN LL?

SOUTHERN DISTRICT OF ILLINOIS One South Dearbom

ANDRTA L. SMITH Chicago, Illinois 60603

650 Missoun Avenue 312-853-7000

East St. Lous, illinois 62201

(618) 482-9050 JEFFRZY T. GREEN

' SIDLEY AUSTIN LLP

SARAH O”’ ROURKE SCHRUP 1501 K Street N.W.

NORTHWESTERN UNIVERSITY Washington, D.C. 20005

SUPREME COURT PRACTICUM (202) 736-8000

357 East Chicago Avenue

Chicago, Ulinois, 60611

(312) 503-0063

Counsel for Petitioner

May 8, 2007 * Counsel of Record

CERTIFICATE OF SERVICE

No. 6-

Deondery Chambers,

Petitioner,

Di of Ameri

Respondent.

1, Jeffrey T. Green, do hereby certify that, on this eighth day of May, 2007, I caused one

copy each of the Motion For Leave To File In Forma Pauperis and the Petition For A Writ Of

Certiorari in the foregoing case to be served by an overnight delivery service on the following

party

Paut D. CLEMENT

SOLICITOR GENERA!

UNITED STATES DEPARTMENT OF JUSTICE

950 Pennsylvania Avenue, N.W

Room 5614

Washington, DC 20530-0001

(202) $14-2217

1501 K Street, N.W.

Washington, DC 20005

(202) 736-8000

APPENDIX

In the

Gnited States Court of Appeals

For the Seventh Ciccuit

No. 06-2405

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

DEONDERY CHAMBERS,

Defendant-Appellant.

Appeal from the Uruted States District Court

fur the Southern District of Hlinois.

No. 4:05~<r-40044-JLFG. Patrick Murphy, Chief judge.

ARGUED DECEMBER 13, 2006—DECIDED JANUARY 9, 2007

Before POSNER, MANION, and EvANs, Circuit Judges.

POSNER, Circuit Judge. The defendant pleaded guilty

lo being a felon in possession of a firearm. The judge,

finding that the defendant had committed three crimes

of violence previously, sentenced him to 188 months as

an armed career criminal. 18 U.S.C. § 924(e). The only

question presented by the appeal is whether one of those

convictions, 4 conviction under Illinois law for escape,

was indeed a crime of violence. The answer depends

on whether escape “involves conduc’ that prescnts a

serious potential risk of physical uyury to another.”

§ 924(e)(1). A jail break does; but [Wino defines felonious

2 No. 06-2405

escape not only as “intentionally escap[ing] fron a penal

institution or from the custody of an employee of that

institution” but also as “knowingly fail[ing] to report to a

pena. institution or to report for periodic imprisonment

at any time.” 720 ILCS 5/31-6(a). The defendant's escape

was in the latter calegory—failing to report to a penal

institution. The charging document is not in the record,

but as summarized in the presentence investigation re-

port and not challenged by the defendant it states that on

four occasions he failed to report on schedule to a penal

institution after being convicted for drug possession,

robbery, and aggravated battery.

As an original matter, one might have doubted whether

failing to report to prison, as distinct from escaping from

a jail, prison, or other form of custody, was a crime that

typically or often “involves conduct that presents a serious

potential risk of physical injury to another.” United States

v. Golden, 466 F.3d 612, 616-17 (7th Cir. 2006) (Williams, J.,

dissenting). You could show up an hour late (without an

excuse) and be guilty of a felony that could result in

your receiving a 15-year mandatory minimum sentence

under the Armed Career Criminal Act. Had the defen-

dant been sentenced without the enhancement, his guide-

lines sentencing range would have been 130 to 162 months.

See U.SS.G. §§ 2K2.1(a}{2), (b)(5), 3C1.2, E1.1{a), (b).

But the majority opinion in Gulden, tracking, our earlier

Opinion in United States v. Bryant, 310 F.3d 550 (7th Cir.

2002), refused to carve the Lilinois escape statute at the

joint, as it were, but held instead that any violation of the

statute is a crime of violence for purposes of the Act. The

other courts of appeals, except the D.C. and Ninth Circuits,

are in accord. Untted States v. Winn, 364 3d 7 (ist Cir.

2004); United States v. Luster, 305 F.3d 199, 202 (3d Cir.

No. 06-2405 3

2002); United States v. Jackson, 301 F.3d 59, 63 (2d Cir. 2002);

United States v. Turner, 285 F.3d 909, 915-16 (10th Cir. 2002);

United States v. Gay, 251 F.3d 950 (1Lth Cir. 2001) (per

curiam); United States v. Nation, 243 F.3d 467, 472 (8th Cir.

2001); United States v. Ruiz, 180 F.3d 675 (Sth Cir. 1999);

United States v. Harris, 165 F.3d 1062, 1068 (6th Cir. 1999);

United States v. Mitchell, 113 F.3d 1258, 1533 (10th Cir. 1997).

The 1.C. Curcuit reserved the issue in United States v.

Thomas, 333 ¥.3d 280, 282-83 (D.C. Cir. 2003). See also

United States v. Adkins, 196 F.3d 1212, 1119 (40th Cir. 1999)

(McKay, J., concurring), and Judge Rovner’s concurring

opinion in our Golden case. The Ninth Circuit ruled that

a peaceful failure to return, followed by the defendant's

turning himself in rather than being recaptured, is not a

crime of violence. United States v. Piccolo, 441 F.3d 1084 (9th

Cir. 2006). .

All these cases involved either a failure to retum to a

halfway house—a type of failing to return that seems even

less violence-prone than failing to show up at prison,

because a violent prisoner would be less likely to be

serving a part of his sentence in a halfway house—or a

“walkaway” escape, which does not involve breaking

out of a building or wrestling free of guards. There would

be no impropriety in dividing escapes, for purposes of

“crime of violence” classification, into jail or prison breaks

on the one hand and walkaways, failures iv report, and

failures to return, on the other. The sentencing judge

would not have to dig beneath the charging document or

the othcr, limited evidence on which a judge is permitted

by Shepard v0. United States, 544 U.S. 13 (2005), to decide

which bin a conviction for escape belonged in.

But we shrink from trying to overrule a decision that is

only a few months old (Golden was decided on October 25,

4 No. 06-2405

2006), thal tracked an earlier and materially identica!

decision of this court (Bryant), and that has overwhelm-

ing support in the decisions of the other circuits. The

defendant has not presented us with arguments or evi-

dence that were overluoked or unavailable in the previous

cases. He cites us to United States v. Hagenow, 423 F.3d 638,

644-45 (7th Cir. 2005), which held that because the offense

of “confinement” in Indiana can be committed without

endangering the person confined, the sentencing judge

has to look behind the iabel of the defendant’s conviction

to see whether his conduct endangered anyone. But the

defendant in this case is nut asking for a deeper investiga-

tion into the circumstances of his failure to report. He is

asking us to carve out noncustodial from custodial escape,

and that is the move rejected in Bryant and Golden, as

well as in the cases we cited from other circuits.

We shall adhere to the precedents for now. But it is an

embarrassment to the law when judges base decisions of

consequence on conjectures, in this case a conjecture as to

the possible danger of physical injury posed by criminals

who fail to show up to begin serving their sentences or

fail to return from furloughs or to halfway houses. The

head of the line of cases that lump all escapes together,

United States v. Goslin, 39 F.3d 1140, 1142 (10th Cir. 1994),

states in colorful language quoted in many of the subse-

quent cases that “every escape scenario is a powder keg,

which may or may not explode into violence and result

in physical injury to someone al any given time, but

which always has the serious potential to doso....A

defendant who escapes from a jail is likely to possess a

variety of supercharged emotions, and in evading those

trying to recapture him, may feel threatened by police

officers, ordinary citizens, or even fellow escapees... .

No. 06-2405 3

|E}ven in a case where a defendant escapes from a jail by

stealth and injures no one in the process, there is still a

serious risk that injury will result when officers find the

defendant and attempt to place him in custody.” (Emphasis

in original.) This is conjecture floating well free of any

tacts—even the facts of Goslin. The opinion says nothing

about the nature of Goslin’s escape, but the reference

to escaping from a jail suggests that the court wasn’t

thinking about walkaway escapes, or failures lo return or

report, but about jail breaks (most jail breaks are stealthy).

Its muminations should not be treated as authoritalive

in a case that does not involve a jail break.

The Sentencing Commussion, or if it is unwilling a

criminal justice institule or scholar, would do a great

service to federal penology by conducting a study com-

paring the frequency of vivlence in escapes from custody

to the frequency of violence in failures to report or re-

turn. Should it turn out that the latter frequency is very

low, this would provide a powerful reason to reexamine

Bryant and Golden. Alternatively, Congress, which has

investigative tools, might examine the issue with a view

toward a possible clarification of 18 U.S.C. § 924(e)(1).

The most helpful analysis of escapes from United States

prisons that we have found, Richard F. Culp, “Frequency

and Characteristics of Prison Escapes in the United States:

An Analysis of National Data,” 85 Prison J. 270 (2005),

unfortunately excludes from its study “walkaways from

minimum-sccurity facilities, failures to return from ap-

proved absences, and escapes from custody staff while

being transported outside,” id. at 275, although almost

90 percent of all escapes are walkaways. Id. at 278; Camille

Graham Camp & George M. Camp, “The Corrections

Yearbook 1997” 18 (Criminal Justice Institute, Inc., 1997).

p No. 06-2405

And while the Culp study includes recaptures after an

escape, it does not reveal whether a recapture involved

violence. [d. at 281-82. More than 6 percent of the escapees

couumutted crunes while on the lam, and many of these

were violent crimes, id. at 285-86, but that is not evidence

that escape itself is likely to be violent; for all that ap-

pears, the escapees were merely resuming their previous

criminal careers. Six percent of the escapes in the study

involved violence against prison staff, id. at 285—violence

on the way out, as it were—but there is no indication of

huw many of the recaptures (some 75 percent of escaped

prisoners are recaptused, id. at 282) involved violence.

The study notes that records of prison escapes are not

standardized and thal recapture data are even less reli-

able than escape data. /d. at 271, 277, 281.

It is apparent that more reseatch will be needed to

establish whether failures to report or return , have

properly been categorized by this and most other courts

as crimes of violence. Notice too that if courts insist on

lumping all escapes together in determining whether

escape is a crime of violence, the enonnous prepon-

derance of walkaways could well compe) a conclusion

that escape is never a crime of violence. Some disag-

gregation seems indicated, but to do it sensibly we

judges need data.

AFFIRMED.

Clerk of the United States Court

Appenis for the Seventh Circuit

USCA02 C 0072-15-07

Case 4.05-cr-40044-JLF Mocument 42 Filed 05/16/2006 Page 1 of 6

SAU 2458 (Rew. 0/05) Judgment in 2 Crnunal Case

= Ei,

UNITED STATES DistRICT COURT —s May yg 2s

Southern District of Illinois a

UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CSB nn abors

DEONDERY |.AZAR CHAMBERS, Il Case Number. 05 40044-0011 F

w/a Doundery L. Chambers USM Number. 06730-9025

Phillip J Kavanaugh, Fedcral Public Defender

Defendant's Attorney

THE DEFENDANT:

@ pleackd guilty tw covot(s) | af the lndisctment

O pleaded nolo contender: iy count/s)

which was accepted by the court

O was found guuty on count(s)

after a pica of wot guilty

The defendant is actyuchcated guilty of these offenses

j Nature of Offense Offense Ended Count

18 922(g Mb), 924(a\2). Felow ia Possession of a Fircann May 31, 2005 1

924(c)

The defeudant & sentenced as provided m pages 2 throug! 6 of thes judyinent The sentence ts umposed pursuant to

the Semencing Reform Act of 1964.

U The defendant bas beeo found not guilty on c wats) aa,

D Count(s) O ss) = 3D awe dismissed on the motion of the Umued States.

_ Its ordered that the defendant must notu’y the nated States attorney for this district with.n 30 days of any of name, res.dence,

or mading address uatil all fines, resttution, and special assessments | thes judgment id. If restituhon,

cman dita evo cone a clin poe huge mall ~—

h.demere

| (A ¢ le

Sigiamare of Judge oF

Name ad Tide of budge

os [1 [oe

Cate a

Case 4.05-cr-40044-JLF Document42 Filed 05/16/2006 Page 2 of 6

AO 245B (Rev. 06°05) Judgneer.: in Communal Case

Sheet 2 inprsurnen!

_————S eee

pidpment—Page 2 af .

OLFENDANT DEONDERY LAZAR CHAMBERS |I

CASE NUMBER: 0S-4444-001-JLE

IMPRISONMENT

The defendans ts hereby conamutied to the custody of the (usted States Bureau of Prisous to be unprsooed for a

tatal term of

1883 months

The court makes the following reconwnendanons to the Bureau of Prisons.

B = The defendas is remanded to the custody of the United States Marshal

The defendant shall susreader to the United States Marsha! for this distnct

O at Oam OO pm on

QO The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prnsons:

O dvefore 2 p.m on

O as notified by the Probation of Pretrial Services Office.

RETURN

I have executed this edgmeci as follows:

Defendant dehvered to

a _ _, with a certified copy of this judgment

= UNITED STATES MARSHAL

DEPUTY UNITED STATES MARSHAL

F 4

Case 4:05-cr-40044-JLF ODocument42 Filed 05/16 “06 Page 3 of6

AO 245B (Rew. 06/05) budgies wm a Crmunal Cae

Sheei 3 — Supervised Release

DEFENDANT DEONDERY LAZAR CHAMBERS. II

CASE NUMBER: —_05-40044-001-JLF

SUPERVISED RELEASE

Upon release frou: unpresnumcnt, the clefendaat shall be on supervised release for a term of |

5 years

The defendant must report to Ge probanon office wi tbe district to which the de fendani is icleased within 72 hours of telease from the

custody of the Burcau of Prisons ’

The defendant shall not commut another federal, state ot boca! crune.

‘the defendant shall not pussess 4 contmolled substance. The defeadant sha!| refraun from aay unlawful use of a controlled

yebstance. The defendant shall to owe drug test witha 15 days of relcasc from impnsomment and at least (wo penodic drug tests

thereafter. 3 detertruncd by the court, not to exceed 52 tests ia 2 one year penod.

The above drug testing coadiuwn 1s suspendcd, bascd «me the court's determunanon that the defendant poses a low ask of

futuse substance abuse. (Check, if apphcabie }

The defendant shall not possess a fwearm, amunmmution, destructive device. nr any athcr dangcrous weapon. (Check. if applicable}

The defendam shal! cooperate w the collecton of DNA as directed by the probation officer. (Check, if applicable )

The defendant shall register with the state sex offender registration agency (o the stale where the defendam resides, works, oF 15 @

student, as directed by the probation officer. (Check, if applicable.)

The defendant sha!! partycipate w an approved program for domesuc violence. (Check, if applicable )

1f thes wuposes a fine o1 restiutinn it 1s a condition of supervised release that the defendan! pay in accmmdance with the

Schedule of Payments sheet of this judgment. nda

The defendant must comply with the standard couditivns that bave been adopted dy this court as welll 25 with any acklettonal conditions

on the attached page

oOo fs we

STANDARD CONDITIONS OF SUPERVISION

1) the Gefemdaot shall not leave the judicial district wethout the permission of the court or probation officer,

2) the defeadane shall teport to the probation offices and shall submit « truthful and complete writica report withun the fst five days of

3) he defendant shail answer quthfully all unquunes by the probatou office: and follow the structions of We probation officer,

4) the defendant shail support bis 0: ber dependents and mec! othe: famuly responsibilities,

$) the defendant shall work regularly at « lawful occupanoe, ualess excused by the probation office: for schoohag. train, 04 other

6) the defendant shall notify the probanon officer at least ten days prior to any change m residence or employment:

7) the defendant shall refraw from excessive use of alcohol and chali not purchase, possess, use, distnibute, or admunister

controlled substance ot say paraphernalia related to any coatrclled substagces, except as presct.bed by » physician. sa

8) the defendant shall not fie quent places where controlled subscauces are tllegally sold, used, distributed, of adnunistered,

9) the defendant shall not associate with any persons crumnal activity and shail aot associate with soacoovicted

Gany, eaten qrested qumiasine @ do ty do os ~ — -

the defendant shall x a probahon officer to visit him or her af any tunc a! home or elsewhere and shall n confi

® eee - we ray

1i) the defendant shall notify the probation officer withun seventy-rwo hours of being arrested or questioned by a law enforvernent officer,

12} the defendant shall sot exzer into te act

tar cee aby agreement as an informer or 2 special ayent of a law cnforcement agency without tbe

13) _asdirected by the probation officer, the defecdant shall otify thisd parues of vss that may be occasioued by the defeudant’s criminal

or history or charactcnstics and shall permut the probaton make such icahions confi

defendant's conmpliance with such nobficanon requzement ad =e — te »

10a

Case 4:05-cr-40044-JLF Document42 Filed 05/16/2006 Page 4 of 6

AOD 245B = (Rew. 06/05) Judgeacmt in 2 Criminal Case

Sheet IC — Supervised Release -

_ DEFENDANT: DRONDERY LAZAR CHAMBERS, 1]

CASE NUMBER: 05-40044-001-J1.F

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall pay any financial penalty tha. is imposed by this judgment, and that

remains unpaid at the commencement of the term of supervised release. The defendant sball

pay the fine ta installments of $20.00 per month or 10% of his act monthly income, whichever

greater.

The defendant shall provide the probation officer and the Financial Litigation Unit of the

United States Attorneys’ Office with access to any requested financial information. The

defendant is advised that the probation office may share financial information with the

Financial Litigation Uait.

The defendant shall apply all monies received from income tax refunds, lottery winnings,

judgments, and/or any other anticipated or unexpected financial gains to the ee

ordered financial obligation. The defendant shall immediately notify the probation officer of

the receipt of any indicated

The defendant shall participate as directed and approved by the probation officer in treatment

for narcotic addiction, drug which inclades urinalysis or other drug detection

measures and which may r residence and/or participation in a residential treatment

facility. participatioa will require complete abstinence from all alcoholic . The

defendant pay for the costs associated with substance abuse counseling and/or testing

based on a co-pay sliding fee scale approved by the United States Probation Office. Co-pay shall

never exceed the total costs of counseling.

The defendant shall! or te nap residence, real property, of business, compater,

or vehicle to a search, by the United States Probation ers at a reasonable time

and ina reasonable manner, based upon reasonable suspicion of contraband or evidence of a

violation of a condition of supervision. Failure to submit to a search may be grounds for

revocation. The defendant shal! inform any other residents that the premiscs may be subject

to a search pursuant to this condition.

Ila

Case 4:05-cr-40044-JLF ODocument42 Filed 05/16/2006 Page 5 of 6

AO 345B (Rev. O6/0*) hidement w a Crrmmmal Case

Sheet 5 — Criminal Monaary Penalties

Judgenent Page __§ uf 6

DEFENDANT. DEONDERY |.A7AR CHAMRERS, !

CASE NUMBER: 05-40044.001JLF

CRIMINAL MONETARY PENALTIES

The defendant awst pay the total cruvunal monetary penalties wader the schedule of payments oa Sheet 6

Asgessment Fine Restitution

TOTALS $ 100.00 $ 750 00 $ N/A

O The determination of restitution ts deferred until An Amended Judgment in a Criminal Care AO 245C) will be cntored

afler such dete:munatiou.

O ‘The defendant must make restitution (including community reshtunon) to the following payces mm the amount bsted below.

eohentpetmeente Cn ag an approxi WaT San 7727 gaa pear bao otherwise w

scthee Gr UakdSun in coumn pursuant to all nonfederal victims must he paid

TOTALS $ » % $ Q

Q Restitution amount ordered pursuant 10 plea agreement $

The defendant must pay .aterest oc restitution and a fine of more thar $2,500, unless the restitution or fine 1s paid wi full before the

fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of me payment options on Sheet 6 may be subject

to penalties for delinquency sed default, pursuant to 18 U.S.C. § 3612().

The court determined that the defeudaat docs not have the ability to pay unterest and 11 1s ordered that

& the wierest requivement is waived forthe 8 fine O reshtution.

& the interest requirement forthe «899 = fine §=9 SS sreatitunon us modified as foliows.

* Functings for the total amount of losses are required 109A, 110. 110A, and 113A of Title |

on of after September 13, 1994, but before April 23, 1 ene a of Title 18 for ofenses commited

Ila

Case 4:05-cr-40044-JLF Oocument42 Filed 05/16/2006 Page 6o!6

AO 2490 (Rev. 0605) Judgment in a Cromgnat Case

Shee6 Schedule of Payrecass

DFFENDANT: DEONDERY LAZAR CHAMBERS, I

CASENUMBER: 05~-40044-001-JLT

SCHEDULE OF PAYMENTS

Having assessed the defeudant's abilty to pay. paymest of the total crimmiga! monetary peaalues ae due as follows.

A @& bump sum payment of $ duc uumedistely, balaoce due

O ig accordance oc 2 D, OG Eo © Fhelow, or

Payment to beg wnmediately (may be combined with 0 C. OD.o 9 F below); or

C OD Payment in equal (e.g, weekly, moothly, quasterly) instalewents of $ over a penod of

(c.g., months or years), # commence (c.g., 10 of 60 days) after the date of this judgment, or

D 9 Payment w equal (¢.g., weekly, monthly, quarterly) installmeats of $ over a period of

(¢.g.. moarhs ar years). to commence (c.g., 30 oF 60 days) after release from imprisoumeni to a

term of supervision, or

F 9 Payment during the term of supervised release will comunence within (e.g, 30 oF 60 days) after release from

unpnsenment. The court will sct the paynicnt plan based on an asscsement of the defendunt's ability to pay at chat time; or

F 6 mn sane Fa a ae

Payments are esp Pog hay team peoas Wa post Som peice cuings oerepinan wih Ge

aeentaies Prog yee panes enka pedro conmercner ET

Vales the court has expressly ordered otherwise, ul UNpOses up! SOmMeENt, of crumumal :novetary peualties 1s due durt

Vues, made Federal Bureau of Prisons’ Inmate F i

an cae sae ‘

The defeacamt sal! receive credit for all payarats previously made toward any criminal monctary penalties imposed.

Jount and Several

Defendant and Co-Defendant Names and Case Numbers (unciucing defendant sumber), Total Amount, Jowt and Several Amount.

and correspomuny payee, 1f appropnate.

The defendant shall pay the cost of pmsecutwoo.

The defendant shall pay the followwg court cost(s)

The defendant shall forfeit the defendant's interest 2 the following property to the United States

Payments shall be applicd a the following order (1) assessment, (2) restrtut |, (3) restitution wterest, (4) fre pnacipal

(5) fine wrerest, (6) Comenunity restutunen, (7) rah Sg ai@iem. read poms Lae pad poe phd =

i3a

Gnited States Court of Appeals

For the Seventh Circuit

Chicago, Dlimots 60604

February 16, 2007

Before

Hon. Richard A Posner, Circuit Judge

Hon Paniel A. Manion, Crreut Judge

Hon. Terence T. Evans, Circuit Judge

No. 06 240

UNITED STATES OF AMERICA, Appea) from the United States

Plosntiff-Appellee, District Court for the Southern

Dietrict 07 Ihnoia.

No. 4°05-cr-40044 -JLF

DBONDERY CHAMBERS,

Dejendant-Appellant. G. Patrick Murphy, Chief Judge.

ORDER

On January 22, 2007, defendant-appellant filed « petition for rehearing with

Suggestion for rehearing en bonc, aod on February 12, 2007, plaix tiff-appellee filed ap

answer to the petition. Al) the judgrs on the orginal pane! have voted to deny the petition,

and nepe of the active judgea has requested & vote op the petition for rebesring en bonc.

The petitian is therefore DENIED.

I4a

Case 4:05-cr-40044-JLF Document’ Filed 07/06/2005 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ULLINOIS

UNITED STATES OF AMERICA, )

)

Plaintiff, ) CRIMINAL NO. 25 Hog) TF

)

vs. )

) Title 18, United States Code,

DEONDERY LAZAR CHAMBERS, Il, ) Sections 922 and 924

a/k/a Deondery L. Chambers, )

)

Defendant. ) FILED

INDICTMENT JU 06

sommes Org 285

THE GRAND JURY CHARGES: Petia ort Couey

On or about May 31, 2005, in Jefferson County, within the Southern District of Minois,

DEONDERY LAZAR CHAMBERS, II,

a/k/a Deondery !. Chambers,

defendant herein, who had previously been convicted of a cnme punishable by umpnsonment for aterm

exceoding one year, a felony under the laws of the State of Illinois, on or about July 15, 1998, to wit:

Robbery and Aggravated Battery, in the Circuit Court for the Second Judicial Circuit, Jefferson County,

Iitinois, Case No. 98-CP-109, did knowingly possess in and affecting interstate commerce a firearm, that

is: P Smith and Wesson, Model 66, 357 Magnum caliber revolver, serial number 9K6476, ali in

violation of Tite 18, United States Code, Sections 922(g)1), 924(a)(2), amd 924(e).

A TRUE

: “oh

fis i fans amas

A RONALD J. TENPAS —.

United States Attoracy

GEORGE A. NORWOOD 7

Assistant United States Attorncy

Recommended Bond: Detention

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

UNITED STATES OF AMERICA, )

Plaintiff, ,

vs. CRIMINAL NO. 05-40044-JLF

DEONDERY J.AZAR CHAMBERS, Il, ;

a/k/a Deondery L. Chambers )

Defendant

INFORMATION CHARGING PRIOR OFFENSES

Comes now the United States of America, by and (hrough ts attomeys, Ronald J. Tenpas,

United States Attomey for the Southern District of Illinois, end George A. Norwood, Assistant

United States Antomey, pursuant to Section 924{c)(1) of Title 18, United States Code, and informs

the Court that the government belicves that the defendant qualifies as an armed career crimmnal

within the meaning of Sectian 924(e)(1), stating as Sollows:

1 ‘That the defendant has been charged in the indictwent with a violation of Title

18, United States Code, Section 922(g)1).

2. That on July 15, 1998, m the Circuit Court, Jefferson County, Ilinois, defendant

was convicted of Robbery and Aggravated Hattery in Case No. 98-CF-109.

3. That on February 24, 1999, in the Circuit Cowt, Jefferson Couaty, Illinois,

defendant was convicted of Escape in Case No. 99-CF 47.

4. That on June 30, 1999, in the Circuit Court, Jefferson County, Mlinois, defeadant

was convicted of Unlawful Delivery of a Controljed Substance within 1000 feet of Public Housing

in Case No. 99-CF-157.

loa

WHEREFORE, the Uniicd States of Asmenca hereby tiics this Information Charging Prior

Offenses to subject the defendant to the enhanced provisions of Title 18, United States Code, Section

924(¢)(1) upon bss conviction under the Indictuent

17a

s/ George A. Norwood

GEORGE A. NORWOOD

402 West Main Street, Suite 2A

Benton, IL 62812

Phone: (618) 439-3808 Ext. 111

Fax: (618) 439-2401

E-mail: George. Norwood@usdoj. gov

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

UNITED STATES OF AMERICA, )

Plaintiff, 3

vs. No. 05-CR-40044

.DBONDERY LAZAR CRAMBERS,

Defendant .

REPORT OF PROCEEDINGS

Sentencing Hearing

BE IT REMEMBERED AND CERTIFIED Lhat heretofore on

| May 12, 2006, the same being one of the regular judicial days

in and for the United States District Court for the Southern

District of Illinois, Honorable G. Patrick Murphy presiding,

the following proceedings were had in open court in Benton,

Illinois, to-wit:

APPFARANCES

Mr. George Norwood

Asst. U.S. Attorney For the Plaintiff

Mr. Phillip J. Kavanaugh

Federa) Public Nefender For the Defendant

JANE MCCORKLFE

Official Court Reporter

U.S. District Court

301 W. Main Street

Benton, Illinois 62812

aes

18a

THE CLERK: Court calls United States of America

versus Deondery Lazar Chambers, case number 05-4044. Are

the parties ready? :

MR. NORWOOD: The government is present by George

Norwood, Assistant U.S. Attorney. We are ready to proceed.

MR. KAVANAUGH; ‘The defendant, Deondery Chambers,

is present with his counsel, Phil Kavanaugh. We are ready to

proceed.

THE COURT: Let the record show that counsel arc

present. Mr. Chambers is here with Mr. Kavanaugh, and

Mr. Norwood is here, also.

Now the matter is set for sentencing this morning.

And in the ordinary course of business, the Probation

Department prepare? the usual detailed written Presentence

Investigation Report. There were objections filed. There

was an addendum to the Presentence Investigation Report. [I

think that's heen provided to both sidas.

Now, we will get to the objections that are going

to require a factual, some factual findings, but as I

understand the cacc, here is where we are. First of all, it

the defendant qualifies as a career offender with his

Criminal History Category of V1 and giving him the

three points for cooperation that he would be entitled to, he

comes out as a 31. And that seems to the Court, and I stand

here to be corrected, but if that's the case, then the other

19a

objections really don't amount to anything hecause in that

event, I think he has a base offense level of 24.

The Probation Department and the government have

him for au additional four points on top of that because of

Lhe aggravated use of a firearm and then another two points

on top of that for reckless endangerment, which would bring

him up to a 30. And then he would get his three points off,

which would bring him down to a 27.

So it seems to the Court that the most important.

matter would he to determine, first, whether he is a career

offender. Mr. Norwood, have I stated this correctly?

MR. NORWOOD: The govermment believes so. If he is

an arme@ career criminal, there will be a minimum sentence of

15 years and a maximum sentence of life. If there is not

there will be a maximum sentence of 10 years under the felon

in possession statute. So I think you're correct with

respect that would be dispositive of the legal argument. It.

would be dispositive of most of the issues. I'm not sure. I

believe the defendant wili appeal.

THE COURT: Well, I'm still going to make the

conditional finding. There's no question about that. I'm

not going to leave anything undone.

MR. NORWOON: Okay.

THE COURT: uct that would be the first issue for

the court.

20a

MR. NORWOOD: Then I agree with the Court, Judge.

THE COURT: Mr. Kavanauch.

MR. KAVANAUGH: There is a slight distinction. In

that if rhe Court finds the defendant used or possessed the

firearm in connection with a crime of violence, then the

armed career criminal base offense level would be 34 minus

three for acceptance. If the Court finds that he didn't

possess the firearm in connection with a crime of violence,

then it would be 33. It's am eight-month difference, Your

Honor. If he's a 34 minus three, it's 188 as the low. If

he's a 33 then it would be 180 as the low part, 180 to 210.

Other than that the Court's correct in its observations.

THE COURT: All right. We will discuss that as

need be, but the first question for the Court is you have the

predicate offense for the career offender statute. Now your

objection is a simple legal argument that the escape for

which he was convicted does not qualify as a violent crime.

MR. KAVANAUGH: That's correct, Your Honor.

THE COURT: And while one might think that to be

the case, if my memory doesn't fail me, we have the Bryant

case by Judge Kanne who says that it is, and I believe

there's at least one other case in the Seventh Circuit. Is

that your understanding of the law?

MR. KAVANAUGH; That was the law until we've had

Shepard and Hagenow. {[ believe that those two cases somewhat

2la

alter --

THE COURT: Is that the Ninth Circuit case?

MR. KAVANAUGH: No, Hageaow is a Seventh Circuit

case and Shepard, obviously, 1s @ Supreme Court case.

THE COURT: Tell me about the Seventh Circuit case

that you think changes it.

MR. KAVANAUGH: Well, Hagenow was decided on August

the 31st of 2005. It stands for the proposition that when

you have @ generic crime like burglary or escape or something

like that, the issue of whether or not the conduct, the

offense conduct involves a potential risk of physical injury

to another or hae as ah element the use or attempted use of

threatened physical force, the sentencing court is to look at

the actual charging instrument itself to see what kind of

gencric conduct was charged in the state court.

In this case Mr. Chambers was convicted of escape,

but the actual indictunent charges him with failure to report

for a periodic imprisonment. In other words, he was

sentenced to weekends in jail, and he didn't show up for

three of them. On the face of the charging document itself,

it's pretty clear that there is no violence, no attempted

violence, no suggestion of violence. He just didn't come to

report to jail for three weekends.

Ultimately, in that case he was charged with

escape. He pled guilty to it. Was continued on probation

22a

and they just gave him four additional weekends to serve

subsequent to the plea on the escape charge. There wes no

indication in that at a1] that there was any violence

involved.

There's another case that we've cited in the

sentencing memorandum, and that's another Seventh Circuit

case which was decided on December the 19th, 2005, United

States versus Sperberg, S-P-E-R-B-E-R-G, and that discusses

this iseve, also. And it says on page 2 of the printout -- I

don't have the exact page nufiber, but it says, "When a law

specifies multiple ways to commit an offense, one within the

scope of a recidivism enhancement and the other not, the

federal court may examine the charging papers and plea

colloquy to determine which variety of offense the conviction

reflects.* to see whether or not in this case this type of

escape is violent.

It'e pretty clear from the record in state court,

Your Honor, that all he did was just didn't show up on time

for three weekends.

THE COURT: And you have the indictment there?

MR. KAVANAUGH; Yes, sir.

THE COURT: And what does the indictment provide?

MR. KAVANAUGH: It, basically, charges a violation

of -- let's see. Pirst, is a violation of 730 ILCS 5/3-6-4,

which basically penalizes a person for failure to return from

23a

furlough or work release.

THE Co’RT: Al} right.

MR. KAVANAUGH: lIlere's a copy of the slatute.

THE COURT: You will provide that to my clerk.

MR. KAVANAUGH: TI do have the indictment. I1 left

it across the street.

THE COURT: Yor the moment I will take it as

} stated. I have mo reason not to.

All richt, Mr. Norwood. It doesn't sound like we

have here what the escape cases talk about. The cases talk

about hecause every escape involved a serious potential risk

of physical injury to another, and what I have in mind is I'm

trying to give a good example. Gut someone knocking the

guard in the head and crawling over the fence at Marion and

making a go for it, amd it sounds like here the defendant

just simply failed to report, which didn’t involve any

potantial risk of physical injury.

MR. NORWOOD: Well, Your Honor, a couple things.

First, the Seventh Circuit has rejected that argument years

ago in the Bryant case.

THE COURT: That's Judge Kanme's case.

MR. NORWOOD: Yes, Your Honor. Where that very

argument was raised by the defendant objecting to the

categorical approach of the Seventh Circuit. Ané all

escapes, no matter if they're walk-away or failure to report

24a

or the old hitting on the guard in-the-head escape, they arc

all crimes of violence.

I mean that's -- I'l) read from -- I know the

Court's read the Bryant: opinion, but I mean Bryant -- here's

what the court said. "Bryant asks this Court to redefine our

decision in Franklin by holding that not every crime of

escape amounts to a crime of violence. He urges this Court

to insteaé follow a fact-specific approach when determining

if a particular crime of escape should be categorized as a

crime of violantce. Specifically, he argues that the type of

escape for which he was charged -- failure to return to a

halfway house after being absent on a work release -- is more

appropriately thought of as failure to return than an escape.

According to his reading the ‘failure to return’ to 4 halfway

house after being absent without permission prevents so much

less of a risk of violence that it must be considered

different and distinct trom a ‘bust-out’' or ‘slither-away'

type of escape.’ }

The Seventh Circuit rejected this very argument.

THE COURT: And you say, too, that the more recent

cases cited by the defendant simply do not trump Bryant.

MR. NORWOOD: Absolutely not. TI could mot find a

published Seventh Circuit opinion involving escape, but I

have founé for the Seventh Circuit in the case, and it cites

the case of United States versus Lewis, but the Booker

25a

decision did not change this categorical approach to escape.

Booker had Lo do with --

THS COURT: Booker has nothing to do with this.

MR. NORWOOD: Nothing has changed in the Seventh

Circuit. Whether the Ninth Circuit in Piccolo considers it

is one thing, but the Seventh Circuit has always considered

escapes of any kind, walk-awayc, failures to report. or an

escape or they are busting out of a prison ali the same

because of the risk of violence. And this Court knows what

that risk of violence is, in any escape, is when the officers

go to apprehend that person, they don't know why that person

failed to report or walked away or escaped. They are risking

their lives apprehending somebody who may not want to either

., report to prison or for whatever reason, and the Seventh

Circuit has said it's a powder keg.

THE COURT: In short your response is that

irrespective of the arguments, the Seventh Circuit still

adheres to Bryant.

MR. NORWOOD: Absolutely.

THE COURT: Period.

MR. NORWOOD: Yes.

THE COURT: Now, we have certain other matters,

too, and, of course, I will rule op all of these. The next

‘| is the objection to the four points.

Now, the Court understands that the defendant is a

26a

clear. I'm relying on the guideline commentary and not

the offense of duress. I realize that's not applicable

here.

THE COURT: The Court has heard the evicence,

covering all the papers including the briefs, and I note the

following: First, the Bryant case by Judge Kanne is still

the law in the Seventh Circuit. There Judge Kanne explicitly

rejected an argument that is, in all respects, the same as

the argument made here, the holding of that case being so

explicit this Court would not rule inconsistently with that

decision unless it were explicitly clear that it had been

overruled and it has not.

The reason stated in that opinion, the Seventh

Circuit simply, and for reasons of simplicity, categorically

holds that escape is escape. And we're not going to get into

the nuances of it for purposes of the sentencing statute. It

counts. So we have here what is @ career offender under the

Statute.

Now the other matters are going to be ruled on,

too, so the record ig clear.

Now, with regard to the four points, the Court will

overrule the defendant's objection and will adopt the

probation officer's recommended findings of fact there, and

for this reason set aside for the moment the fact that the

defendant was a felon in possession. And I use those words

27a

0611206

(iy -

No. _.

IN THE

SUPREME COURT OF THE UNITED STATES

Donde Chunar PETIT.ONER

(Your Name)

United SAtLe — RESPONDENTS)

MOTION FOR LEAVE TO PROCEED /N FORMA PAUPERIS

The petitioner asks leave to file the attached »etition for a writ of certiorari

without prepayment of costs and to proceed in forma pauperis.

[YL] Petitioner has previously been granted leave to proceed in forma pauperis

in the following court(s):

1 Circuit - Pursuant to 8 US. $3004

US Distictlowt, Soutirn Tilinois - SduMe>

| | Petitioner has not previously been granted leave to proceed in forma

pauperis in any other court.

Petitioner's affidavit or declaration in support of this motion_s attached hereto.

0611206

No. 06-

IN THE

Supreme Gourt of the United States

DEONDERY CHAMBERS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Pricie J. KAVANAUGH ROBERT N. HOCHMAN*

FEDERAL PUBLIC DEFENDER SIDLEY AUSTIN LLP

SOUTHERN Disrricr OF ILLINOIS © One South Dearborn

ANDREA L. SMITH Chicago, Hhinois 60603

650 Missoun Avenue 312-853-7000

East St. Louis, [Ihnois 62201

(618) 482-9050 JerrREY T. GREEN

SIDLEY AUSTIN LLP

SARAH O'ROURKE SCHRUP 1501 K Street N.W.

NORTHWESTERN UNIVERSITY Washington, D.C. 20005

SUPREME COURT PRACTICUM (202) 736-8000

357 East Chicago Avenue

Chicago, Hlinois, 60061 1

(312) 503-0063

Counsel for Petitioner

May 8, 2007 * Counsel of Record

QUESTION PRESENTED

Whether a defendant's failure to report for confinement

“involves conduct that presents a scrious potential risk of

physical injury to another” such that a conviction for escape

based on that failure to report is a “violent felony * within the

meaning of the Armed Career Criminal Act, 18 USC.

§ 924(e).

PARTIES TO THE PROCEEDING

The only parties to the proceeding are those appearing in

the caption to this petition.

TABLE OF CONTENTS

QUESTION PRESENTED... Sieseibintanidiein Nltlie

PARTIES TO THE PROCEEDING o.oo cee

DAEs Oe Fe ONE ncncestsesssesesssenssnevsiene evesene

TD rtesssctsnicsnersenerecoveescsessesi issn ta

Se iaeiiitehaicbtaicsnhiinmeisatahidiiencenicsnctesniaine: tapsonts

STATUTORY PROVISION INVOLVED 0.000...

STATEMENT OF THE CASE. ...n.........c:cssrreccessos sosessee

REASONS FOR GRANTING THE PETITION... ........

NU aiccescsactaiaciasdteniniabinsnidints cidslennsinsepleiies-tevotus

(in)

TABLE OF AUTHORITIES

CASES Page

James v. United States, 127 §. Ct. 1586 (2007)... passtn

Leocal v. Ashcroft, 543 U.S..1 (2004)... 17

faylor v. United States, 495 U.S. 575 (1990)... 12

United States v. Aragon, 983 F.2d 1306 (4th Cir,

RTC SRO PIN On tone a to ee 10

United States v. Anglin, 169 F. App’x 971 (6th

Cir. 2006), cert. denied, 127 S. Ct 1249

RRL S SAC Ee ee ae 4,9, 13

United States v. Doe, 960 F.2d 221 (ist Cir.

_ jeletaehesblotadaaibintansannibasccnesta 14. 16, 17

United States v. Gay, 251 F.3d 950 (ith Cir.

SEI ee se ee eee 4.9

l/nited States v. Golden, 466 F.3d 612 (7th Cir. i.

2006), petition for cert. filed, No. 06-1075)

eS eee 11,16

United States v. Gesliag, 39 F.3d 1140 (10) Cir.

RPC RC ASE GES A a el Ne ol . 910

United States v. Kelly, 422 F.3d 889 (9th Cir.

Ra PI Ee BAO LOT 14

United States v. Luster. 305 F.3d 199 (3d Cir.

Each aA rae se OS i 4.8.10

United States v. Mathias, No. 06-4109, 2007 WL

1097952 (4th Cir. Apr. 13, 2007) 0.00. 4.9.10

United States v. Nation, 243 F.3d 467 (8th Cir.

ERE a saa EN Rh ed 4.9

United States v. Piccolo, 441 F.3d 1084 (9th Cir

United States v. Rivera, 127 F. Appx 545 (2d

TE RR See a ee 4,8

United States v. Ruiz, 180 F 3d 675 (Sth Ci if.

1999) ... ee

Ui mited States v Shepard, $44. Ss. 13 (2005)... . 12,18

United States v. Thomas, 333 ¥ 34 280 (D.C Cir.

REET: EI ae ee 3.4.11,12,15

“

TABLE OF AUTHORITIES -CONTINUFD

Page

United States y. Turner, 285 F.3d 909 (10th Cir.

SIE ........ ss deciccnienclinienianalaiishmadinaiaaeiaaene

Unued States v. Wardrick, 350 F.3d 446 (4th Cir.

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United States v. Winn, 364 P3d 7 (Ist Cir.

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STATUTES

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Ga. Code Ann. § 16-10-52 00... .ceseeseesee rene cee :

FIO BS FI cecccetinteoseasehceiserene ite aie 6,12

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18 Pa. Cons. Stat. Ann. § 5120.

LEGISLATIVE HISTORY

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OTHFR AUTHORITY

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IN THE

Supreme Court of the United States

No. 006-

DEONDERY CHAMBERS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Deondery Chambers respectfully requests that a

writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Seventh Circuit in this case.

OPINIONS BELOW

The opimon of the United States Court of Appeals for the

Seventh Circuit was entered on January 9, 2007. It has been

officially reported and can be found at United Stuies v.

Chambers, 473 3d 724 (7th Cir. 2007). It is reproduced in

the Appendix ut la-?a. The district court held a sentencing

hearing on May 12, 2006 at which the judge orally ruled that

the defendant's prior conviction for escape under illinois law

was a “violent felony” within the meaning of the Armed

Career Crmina! Act, 18 USC. § 924e). The relevant

portion of the transerpt is reproduced in the Apperdix at 18a

)

JURISDICTION

The court of appeals issued its opimon on January 9, 207.

Petitioner timely sought rehearing, which was denicd on

February 16, 2007. Pet. App. 14a The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254.

STATUTORY PROVISION INVOLVED

18 U.S.C. 924(e) provides, in pertinent part, as follows:

(eM 1) In the case of a person who violates section 922(e)

of this utle and has three previous convictions by any

court referred to m section 922(g)1) of this title for a

violent felony or a serious dmg offense, or beth,

committed on occasions different from one another, such

person shall be fined under this title and imprisoned not

less than fiftecn years, and, notwithstanding any other

provision of law, the court shall not suspend the

sentence of, or grant a probationary sentence to, such

person with respect to the conviction under section

922(¢).

(2) As used im this subsection -

* * * *&

(B)the term “violent felony” means any crime

punishable by imprisonment for a term exceeding onc

year, or any act of puvenile delinquency involving the

use or carrying of a firearm, knife, or destructive

device that would be punishable by imprisonment for

such term if committed by an adult, that

(i) has as an element the use, attempted use, or

threatened use of physical force against the person

of another, or

(u) as burglary, arson, or extortion, mvolves use

of explosives, or otherwise involves conduct that

presents a senous potential risk of physical myury

to another.

STATEMENT OF THE CASE

This case presents a mature split of authority regarding a

recurring issuc that members of this Court have recently

acknowledged requires this Court's attention. The Anned

Career Criminal Act (“ACCA”) provides an enharced 15 year

mandatory minimum sentence, and up to life imprisonment,

for anyone guilty of being a felon ~ possession of a firearm,

in violation of 18 U.S.C. § 922(x)1), who had previously

been convicted of three serious drug and/or violent felonies.

18 US.C. § 924(e). Without the ACCA enhancement, the

statutory maximum sentence for a violation of § 922(g)1) is

ten years.

The Courts of Appeals have diverged over whether a prior

conviction for escape based on a failure to report to

confinement is a ‘violent felony” within the meaning of the

ACCA. Unlike a prison break from secure custody, a failure-

to-report escape does not involve breaking free from the

physical custody of an officer of the state cr a secure

detention facility. Failure-to-report escapes occur when a

detainee 1s, for any of a number of reasons, provided the

opportunity to move about the community without

supervision for a limited period of time, but fails to return or

report to his or her facility within the appointed time. It is a

crime of omission.

There is a 10 to 2 split of authority on whether all escapes

should be treated as violent crimes for purposes of career

offender status. The Ninth Circuit has held that a failure-to-

report escape is not a violent cnme. United States v. Piccolo,

441 F.3d 1084, 1088-90 (9th Cir. 2006). The D.C. Circuit has

also indicated that it would not treat a failure-to-report escape

as a “iolent cnme, and recognized that failure-to-report

escapes are different from both prison breaks from secures

facilites and escapes from the physical custody of an officer.

Unued States y. Thomas, 333 F.3d 280, 282-83 (D.C. Cir.

2003). In the decision below, Judge Posner acknowledged

“{ajs an original maticr, one might have doubted whether

failing to report to prison, as distinct from escaping from a

jail, pmson, or other form of custody, was a crime that

typically or often ‘involves conduct that presents 4 serious

potential risk of physical injury to another.” Pet. App. 2a

(quoting United States v. Golden, 466 F.3d 612, 616-17 (7th

Cir. 2006) (Williams, J., dissenting)) But the Seventh Circuit

panel below was bound by pnor Seventh Circuit decisions

which had held that all escapes are violent crimes. /d. Nine

other circuits have so held. Uniied States v. Winn, 364 F.3d

7. 12 (List Cir. 2004); United States v. Rivera, 127 F. App'x

$43, 545 (2d Cir. 2005) (citing United States v. Jackson, 301

F.3d 59 (2d Cw. 2002)), United States v. Luster, 905 F.3d

199, 202 (3d Cir. 2002), United States v. Mathias, No. 06-

4109, 2007 WL 1097952, at *3-5 (4th Cir. Apr. 13, 2007);

United States v. Ruiz, 180 F.3d 675, 676-77 (Sth Cir. 1999);

United States v. Angiin, 169 F. App’x 971, 975 (6th Cir.

2006) (citing United Siaies v. Harris, 165 F.3d 1062 (6th Cir.

1999)), cert. denied, 127 S. Ct. 1249 (2007); Unired States v.

Nation, 243 F.3d 467, 472 (8th Cir. 2001), Umited States v.

Turner, 285 F.3d 909, 915-16 (10th Cir, 2002); Unued States

v. Gay, 251 F.3d 950, 952-55 (11th Cir. 2001) (per curiam).

This well developed split of authority warrants this Court’s

review, especially in hght of this Court’s recent decision in

James v. United States, 127 S. Ct. 1586 (2007). The relevant

provision of the ACCA defines “violent felony” by reference

to a list of specific, enumerated offenses (burgiary, arson,

extortion or crimes involving the use of explosives). 18

U.S.C. § 924(e(2Byn). The ACCA also includes a residual

provision, covering any unenumerated felony that “otherwise

involves conduct that presents a serious potential nsk of

' Thomas involved an escape from the physical custody of an officer,

not a failure to report. 335 F 3d at 282-83 As a result, the DC. Curcuit

dit not have an occasion im Thomas to apply tts view that farure-to-report

escapes “niay tot inherently create a msk ef harm to others.” /d at 283

physical injury to another.” /d Because Jumes involved a

cnme analogous to an enumerated offense (attempted

burglary), the majority opimon declined to provide a standard

for determining whether an offense that 1s not analogous to an

enumerated offense is a “violent felony” within tre meaning

of the ACCA. James, 127 S. Ct. at 1598. The dissenting

opinion argued that leaving such a substantial gap in the

interpretation of a frequently mvoked federal criminal statute

il serves courts and counsel. /d at 1601-02 (Scalia, J.,

dissenting). The majonty did not disagree that this Court's

guidance is needed. It merely noted that a case involving a

cnme analogous to an enumerated offense was not an

appropriate vehicle for an opinion that provides a standard for

determining when a crime that is not analogous to an

enumerated offense is a “violent felony.”

‘This case is an excellent vehicle to address this substantial

gap in the interpretation and application of the ACCA.

Failure-to-report escapes occur frequently, and as the body of

appellate decisions ruling on whether such escapes are violent

crimes indicates, they are often relied upon to support an

enhanced sentence for armed career offenders. Failure-to-

report cscapes are not analogous to any of the crimes

specifically enumerated as violent felonies in the ACCA.

There §s no ambiguity im the record that petitioner's prior

conviction for “escape” under Iilinois law was for a failure to

report to confinement, not a physical break from a secure

facility or the custody of a state official.

In short, this case provides a strong vehicle for this Court to

address a question of statutory interpretation that its own

recent decision indicates is urgently needed. There is a well

developed split of authority on the question thal, as Judge

Posner's opinion indicates, wil) persist by force of circuit

precedent in the absence of action by this Court. The petition

should be granted.

1. Petitioner pled guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g). Pet. App. la. The

indictment also charged that petitioner had violated 18 U.S.C.

§ 924(e), the ACCA provision that provides for a mandatory

minimum sentence of 15 years in prison for those violating

§ 922(g) who have previously committed three serious drug

and/or violent felonics. /d. at 15a. The prosecution subse-

quently filed an information identifying the three predicate

convictions it claimed were qualifying felomes under the

ACCA that supported sentencing under 18 U.S.C. § 922(e).

One of the convictions was for escape under Illinois law on

June 30, 1999. /d. at 16a.

{\linois law defines an escape to include both breaking free

from physical confinement (onc who “escapes from any penal

institution or from the custody of an employee of that

imstitution”) and also failure-to-report escapes (one who

“knowingly fails to report to a penal mstitution or to report

for periodic imprisonment at any time or knowingly fails to

return from furlough or from work and day release or who

knowingly fails to abide by the terms of home confinement’).

720 ILCS 5/31-6(a). There is no dispute that Chambers’s

“escape” was a failure-to-report, the Illinois charging

document made clear that petitioner had been charged with

knowingly failing to report for incarceration on various dates.

Pet. App. 22a.

The trial court held a sentencing hearing at which petitioner

challenged the categorization of his failure-to-report escape

conviction as a “violent felony” within the meaning of the

ACCA. The district court, citing Seventh Circuit precedent,

stated that “for reasons of simplicity ... escape is escape.

And we're not going to get into the nuances of it for purposes

of the sentencing statute.” Pet. App. 27a. Following Seventh

Circuit authority, the district court refused to treat a failure-to-

report escape as different from a custodial escape, and thus

concluded that petitioner was an armed “career offender

under the statute.” /d.

The conclusion that petitioner was an armed career offender

under § 924(c) substantially enhanced his sentence, raising

his statutory minimum from 0 to 15 years, and his maximum

from 10 years to life. Treating him as an armed career

criminal, the district court also applied Section 441.4 of the

Sentencing Guidelines, which incorporates the ACCA,

resulting in a Guidelines range of 188 to 235 months. The

district court sentenced petitioner to the low end of that range,

188 months, which 1s slightly above the statutory mandatory

minimum of 15 years under the ACCA. Had he not been

treated as an armed career criminal, petitioner's guidelines

range would have been 130 to 162 months. Pet. App. |a-2a.

But he would not have been sentenced to more than 120

months because that would have been the statutory maximum

for his offense.

2. Petitioner appealed his sentence, and the Seventh Circuit

affirmed. Judge Posner's opinion for the court begins by

noting that tt “might [be] doubted” that a failure-to-report

escape 1s typically or often a crime that poses a serious risk of

physical harm to others. Pet. App. 2a. The opinion also

explicitly acknowledges a split of authority regarding the

treatment of failure-to-report escapes as a violent crime under

the ACCA. /d. at 2a-3a. And the opinion further recognizes

the propriety and ease of distinguishing a failure-to-report

escape from “jail or prison breaks” for the purpose of deter-

mining whether the escape at issue is a violent crime under

the ACCA. /d. at 3a.

Nonetheless, the panel chose to adhere to its own court's

precedent and held that petitioner’s failure-to-report escape

was properly considered a violent felony under the ACCA.

Pet. App. 3a-4a. Nonctheless, the opinion notes that the rule

treating failure-to-report escapes like prison breaks “is an

embarrassment to the law” because it is based on “a

conjecture as to the possible danger of physical injury posed

by criminals who fail to show up to begin Serving their

sentences or fail to return from furloughs or to halfway

houses.” /d at 4a. The decision further criticizes the

reasoning of the “head of the line of cases that lump all

escapes together, United Statics v. Gosling, 39 F.3d 1140,

1142 (10th Cir, 1994)" that every escape camies the

potential for vicience because of the “supercharged emotions”

that may cavse an escapee to “feel threatened by police

officers, ordinary citizens, or even fellow escapees” Pet.

App. 4a. According to the court, this rationale amounted to

“ruminations [that] should not be treated as authoritative” for

failure-to-report escapes. /d. at Sa. The Seventh Circuit casts

further doubt on the majority view by noting that “if the

courts insist on lumping all escapes together in determining

whether escape is a crime of violence, the cnormous

preponderance of |failurc-to-reports (according to a recent

study, nearly 90%)) could well compel a conclusion that

escape is never a crime of violence.” Id. at 6a.

REASONS FOR GRANTING THE PETITION

the Seventh Circuit's opimon acknowledges two critical

facts about the treatment of failure-to-report escapes: (1) there

is a well developed split of authority regarding whether a

failure-to-report cscape should be deemed a “violent felony.”

und (2) the rationale for treating a failure-to-report escape as a

“violent felony” 1s weak. These facts alone would warrant

this Court's review. But review in this case has been made

even more compelling by this Court's decision in James,

which exposed the urgent need for this Court to address the

proper standard for determining whether a cnme, such as a

failure-to-report escape, that is not analogous to those violent

crimes specifically enumerated in the ACCA should be

treated as a “violent felony” for purposes of the ACCA.

1. Ten courts, including the Seventh Circuit below, have

stated that all escapes should be treated as a violent cnme.

Pet. App. 3a-da (decision below), Winn, 364 Ftd at 12

(/aslure to return to hallway house), Rivera, 127 F App’x at

545 (failure-to-report escape is a violent cnme under ACCA)

(citing United States v Jackson, 301 F.3d $9 (2d Cir. 2002)

(prisoner walking off from work program)); Luster, 30S F 3d

at 202 (treating a conviction as a crme of violence even when

“the statute clearly extends to a ‘walk away’ from custody not

involving any contemporary violence”), Mathias, 2007 WI

1097952, at *3-S (walkaway from a work release program):

Ruiz, 180 F.3d at 676-77 (walkaway from prison camp

975 (reasoning that any conviction under the federal escape

statute, 18 U.S.C. § 751, is a crime of violence even though

the statute extends to conduct as simple as reporting late to

serve a sentence) (citing United States v. Harris, 165 F.3d

1062 (6th Cur, 1999)), Nation, 243 F.3d at 472 (stating that

“every escape, even a so-called ‘walkaway” escape” is a

crime of violence); Turner, 285 F.3d at 915-16 (failure to

return to halfway house), Gay, 251 F.3d at 952-55 (walkaway

from non-secure diversion center).’ As the decision below

notes, the rationale for this view that has been repeatedly

cited and followed by various circuits was articulated by the

Tenth Circuit in Unied States v. Gosling, 39 F.3d 1140, 1142

(10th Cir. 1994). Gosling was actually not a failure-to-report

case, but involved “‘willfully, unlawfully, and feloniously

escap[ing] from ... [a] County Jatl.’” /d at 1142 (alterations

and omission in orginal). Nonetheless, the Gosling court

reasoned broadly: :

every escape scenano ts a powder keg, which may or

may not explode into violence and result in physical

injury to someone at any given time, but which always

has the serious potential to do so. A defendant who

escapes from a jail is hkely to possess a variety of

” Several of the cases involve appeals challenging the treatment of an

escape as a “crime of violence” under the Sentencing Guidelines, USS G

§ 4812 The definition of “crime of violence” provided in that guideline

Provision ts nearly identical to the definition of “violent felony” in the

ACCA. Compare US.S.G. § 4B1.2, with 18 US.C. § 924c(2NB). For

that reason, lower courts have treated cases umterpretng this guideline

Provision as no different fom cases interpreting the ACCA, and vice

versa. See Winn, 304 F 3d at 9 nt (noting uniform view of courts that

imterprctation and apphesbon of Guidelines provision cam be apphed to

ACCA)

superchargcd emotions, and in evading those trying to

recapture him, may tee! threatened by police officers,

ordinary citizens, or even fellow escapees. Conse-

quently, violence could erupt at any time. Indeed, even

in a case where a defendant escapes from a jail by stealth

and injures no one in the process, there is st Il a senous

potential risk that injury will result when officers find

the detendamt and attempt to place him in custody.

/d. (internal citation omiited) The Tenth Circuit's reasoning

was a matenal (and unnecessary) extension of the case upon

which it relied, United States v. Aragon, 983 F.2d 1306 (4th

Cir. 1993). In Aragon, the Fourth Circuit had held that escape

from a federal prison was a crime of violence because of the

circumstances of the prison custodial setting. /d. at 1313.

That limited rationale would have been sufficient to support

treating Gosling’s escape from jail as a crime of violence.

But the Tenth Circuit went further, looking beyond the

circumstances of the case to the potential circumstances of the

escapce’s later apprehension.

Gosling’s speculation regarding the potential for violence

during recapture has proved the essential justification for

treating failure-to-report escapes as violent crimes just like

jail or prison breaks. Winn, 364 F.3d at 12 (treating failure to

retum to halfway house as violent crime because “there is still

a serious potential risk that injury will result when officers

find the defendant and attempt to place him in custody”),

Luster, 30S F.3d at 202 (emphasizing that “the escapee must

continue to evade police and avoid capture”); Mathias, 2007

WL. 1097952, at *4 (“Even if the escape itself could somehow

sidestep any potential risk of injury, the circurastances of

recapture necessarily encompass just such a msk”); 7urner,

285 F 3d at 916 (“there ts no way to predict what an escapee

will do when encountered by the authontics”). Indeed, the

Seventh Circurt decision which bound the panel below

specifically rehed on the argument that “the potential for a

violent confrontation arises between the defendant am! law

yy pee |

enforcement dunng the attempted capture,” even when the

escape crime was a mere failure to report to a correctional

facility or a halfway house. United States v. Crolden, 466

F.3d 612, 614 (7th Cir. 2006), petition for cert. filed, No. 06-

10751 (US. Apr. 9, 2007).

Two courts have openly rejected the rationale behind the

majority view. The Ninth Circuit has specifically held that a

failure-to-return escape is not a crime of violence. Piccolo.

44] F.3d at 1088-90. The Ninth Circuit noted that failure-to-

report or walkaway escapes, do not involve the same risk of

confrontation as an escape from secure confinement or

physical custody. /d at 1088. Piccolo squarely rejected

Gosling, and its progeny, precisely because the danger to

others posed by an escape from “a secured facility or the

custody of an armed guard” is not present when the escapee

leaves a halfway house with permission and fails to return.

id at 1089.

The D.C. Circuit has specifically discussed the recapture

rationale, and rejected it. Thomas, 333 F.3d at 282-83. After

noting that numerous courts have followed the reasoning of

Gosling, Thomas observed:

While it may be truc that the recapture of an escapee

mherently contains a nsk of violent encounter between

the escapee and the arresting officers, the same ts true as

to the capture of any lawbreaker. Thus, one might argue

that under the approach of those circuits, all crimes

become crimes of violence ....

Id. at 282. ‘Though the Thomas court rejected the rationale of

Gosling, it nonetheless concluded that the escape before it

was a crime of violence because ‘Thomas's crime was “escape

from an officer.” which creates a more apparent risk of

violence. /d at 283. Anticipating the analysis in Piccolo, the

D.C. Circuit observed: “A prisoner not returning to a halfway

house or sneaking away from an unguarded pos.tion in the

might may not inherently create a msk of harm to others. A

1}?

prisoner escaping from the custody of an officer docs create

such an inherent risk.” Jd.

In the decision below, Judge Posner was bound by circuit

precedent, but made clear his belief that there is subsiantial

merit to the analyses of the Ninth and D.C. Circuits. He

specifically recognized that this Court’s decisions make it

perfectly appropriate to distinguishing between an escape

from physical custody on the one hand and a fatlure-to-report

or walkaway escape on the other. “The sentencing judge

would not have to dig beneath the charging document or the

other, limited evidence on which a judge is permitted by

United States v. Shepard, 544 U.S. 13 (2005), to decide

which bin a conviction for escape belonged in.” Pet. App.

3a.’ He also pointed to the absurdity of the majority rule:

showing up an hour late to prison could result in a 15-year

mandatory sentence under the ACCA. dd at 2a.

Judge Posner’s reservations about the result in this case

were not sufficient, however, to overcome the force of circuit

precedent. The same will remain truc in the numerous other

circuits where the decision has already been made, based on

highly questionable reasoning, to treat all escapes as violent

crimes. And the issuc is likely to continue to arise with some

frequency. As the substantial body of decisions in the lower

courts demonstrates, a prior conviction for escape is

commonly relied upon as a predicate violent crime to support

an armed carcer offender sentence. Numerous statutes,

including the Illinois statute at issue here, 720 iLCS 5/31-

(a), and the federal escape statute, have been imterpreted or

expressly define escape to include not only escape from the

physical custody of a state official or secure facility, but also

‘This Court held in Sheperd that a subsequent court try, to determine

whether a prior conviction sbould be treated as a violent felony under the

ACCA may consider “the statutory definimon. charging document, written

plea agreement, transcript of plea colloquy, and any exphert factual

findine by the tral udpe to which the defendant assented” $44 US. at

16; sew alse Taylor v. United States, 499 US. 975, 600-02 (1990)

failures to report and walkaways from non-secure facilities.

See, e.g, Anglin, 169 F. App’x at 974-75 (discussing the

breadth of the federal escape statute, 18 U.S.C. § 751), 18 Pa.

Cons. Stat. Ann. §5121(a) (defining escape to include

“fail{ure] to return to official detention following temporary

leave granted for a specific purpose or limited period”); NJ.

Stat. Ann. 2C:29-5S(a) (same); Ariz. Stat § 13-2501 (same);

Cal. Penal Code § 4530 (subsection (c) defines escape to

include the “willful failure ... to return” of those on

temporary release), Ga. Code Ann. § 16-10-52 (subsection

(a5) includes failure to retum). Only this Court's

intervention can resolve the split of authority 2nd provide

umform treatment of this frequently invoked provision that

produces such harsh sentences.

2. The need for this Court's review of this issue has been

made cven more urgent by this Court’s recent decision in

James v. United States, 127 8. Ct. 1586 (2007). In James,

this Court held that attempted burglary, as defined by Florida

law, is a violent felony for purposes of the ACCA’s residual

clause. /d at 1590-91. The reasoning of the decision was,

however, limited. This Court did not offer a generally

applicable method for determining whether uncnumcrated

crimes qualify as violent felonies under the ACCA’s residual

clause. The majority opimon did not purport to decide

whether attempted burglary, if it were defined differently than

it has been defined in Florida, would qualify as a violent

felony under the residual clause. /d. at 1595-96. Instead, it

simply determined that attempted burglary as defined by

Florida law “poses the same kind of risk” as completed

burglary (which is an enumerated violent felony under the

ACCA), and hence is properly considered a viclent felony

under the residual clause. /d at 1595.

The James majonty concedes that it did not provide any

guidance for lower courts with respect to whether a crime that

is not analogous to one of the enumerated crimes in the

ACCA 1s a violent felony The majority acknowledged that

“provid{ ing] guidance for the lower courts in future cases [1s]

surely a worthy objective.” Jd at 1598. But James itself was

not a proper case to do so because the case did not present

such a crime, and certain issues relevant to the inquiry had not

been briefed. Jd

Justice Scalia’s dissenting opinion clabortated on why it ts

SO important to provide a generally applicable, untform stan-

dard that lower courts can use to decide whether an offense is

a “violent felony” within the meaning of the ACCA: without

such guidance, the court system is left without any way to

provide “an acceptable degree of consistency by the hundreds

of district judges that impose sentences every day.” /d. at

1601 (Scalia, J., dissenting). The James dissent noted that

there are numerous crimes that are not analogous to any of the

enumerated offenses (burglary, arson, extortion, and cnmes

involving the use of explosives, 18 U.S.C. § 924(e)(2B)(ii)).

Justice Scalia himself provided various examples: driving

under the influence of alcohol, 127 S. Ct. at 1601-02 (Scahia,

J., dissenting) (citing Leocal v. Asheroft, 543 US. 1 (2004)

(dnving under the influence of alcohol does not pose a

“substantial msk that physical force against the person or

property of another may be used’’ under 18 U.S.C. § 16(b)),

and operating a dump truck without the consent of the owner,

id. at 1606 n.4 (Scalia, J., dissenting) (citing Vaiied States v.

Johnson, 417 F.3d 990 (8th Cir. 2005)). The list could

readily be multiplied: felon in possession of a firearm, United

States v. Doe, 960 F.2d 221, 222 (ist Cir. 1992) (Breyer, C.J.)

(holding that possession of firearms is not violent but noting

split of authority), unlawful transportation of hazardous

chemicals, which then-Chicf Judge Breyer hypothesized in

Doe, id. at 225, attempting to elude a police vehicle, United

States v. Kelly, 422 F.3d 889, 893 (9th Cir. 2005) (holding

this offense was not a crime of violence), and resisting arrest,

United States v. Wardrick, 150 F.3d 446, 455 (4th Cir 2003)

(holding that resisting arrest is a crime of violence). The

controlling opimen in James says nothing at all about how

)

lower courts are supposed to determine whether any crime

which is not analogous to one of the enumerated crimes in the

ACCA 1s a violent felony.

This case presents an ideal vehicle for resolving this

unanswered question, and providing lower courts a generally

applicable standard for determining whether cnmes that are

not analogous to the enumerated crimes in the ACCA fall

within the ACCA’s residual provision for violent felonics.

Both the majority and the dissent in James acknowledged that

the crime of escape is not analogous to any of the enumerated

offenses. James, 127 §. Ct. at 1598; id. at 1606 n.4 (Scalia,

J., dissenting). And doth the majority and the dissent in

James recogmze that provuling a generally applicable

standard for such crimes is J“worthy objective.” /d. at 1598;

id. at 1602 (Scaha, J., dissenting) (“Imprecision and

indeterminacy are particularly inappropriate in the apphcation

of a criminal statute. Years of prison hinge on the scope of the

ACCA’s residual provision, yet its boundaries are 11)

defined.”). Indeed, the urgency of providing some generally

applicable guidance is heightened by the concern that the

statute is otherwise umpermissibly vague. /d at 1609 (Scalia,

J., dissenting) (citing Kolender v. Lawson, 461 U.S. 352, 357

(1983)).

3. Accepting review of this case will also provide this

Court with an opportunity to place a principled limit on the

scope of the residual clause. The Gosling rationale for treating

failure-to-report escapes as violent crimes is essentially

without limit, as the D.C. Circutt in Thomas correctly

recognized. If the fear of recapture ts sufficient to give nse to

a “serious potentia nsk of injury to another.” 18 U.S.C

§ 9242 Bu), then it is hard to see what crime is not a

violent felony under the ACCA. All crimes carry a msk of

detection and, even ‘f no detection occurs im the commission

of the cmme, there always remains the nsk of subsequent

capture Thomas. 333 F.3d at 282. There is no reason to

believe that ind:viduals who fail to report for custody are

especially hkely to engage in violence if confronted by an

officer seeking to capture them. Golden, 466 ¥ 3d at 615

(Rovner, J., concurring) (arguing that, unlike escape from

custody, the “mere failure to report to custody in the first

instance does noi reflect” a specific inclination to resist or

evade restraint).

Needless to say, any reading of the residual provision that

expands it to encompass all or nearly all crimes ts

problematic. The text of the statute cannot be squared with

the view that Congress intended to impose its substantial

penalty (a 15-year mandatory minimum) for just any armed

repeat offender. The statute singles out certain of the most

dangerous and socially destructive armed repeat offenders:

those with a history of violent felomous conduct and repeat

drug offenders. 18 U.S.C. § 924(e), H.R. Rep. No. 98-1073,

at 1-3 (1984) (discussing purpose of the enhanced penalty,

which was to imeapacitate the kinds of repeat violent

offenders that studies had shown were responsible for a high

volume of violent cnme). “If Congress wanted ... [to]

subject[] all repeat offenders to a 15-year mandatory pnson

term{,] it could very easily have crafied a statute which said

that. ACCA ... was obviously not meant to have such an

effect.” James, 127 S. Ct. at 1609 (Scalia, J, dissenting);

Doe, 960 F 2d at 225 (refusing to treat a conviction for being

a felon in possession of a firearm as a violent crime because

to do so would “bring within the statute’s scope a host of

other crimes that do not seem to belong there”).

Further, the broad reading of the residual provision that ts

necessary to conclude that failure-to-report escapes are

violent crimes ts inconsistent with the language of the ACCA.

As then-Chief Judge Breyer observed, “The s:atute gives

several specific cxampies-- burglary, arson, extortion, use of

explosives and then adds, ‘or otherwise involves conduct

that presents a senous potential risk of physical iyury to

another” /d at 224. When the act of committing the cnme

at issue docs not involve the serious potential for “active

violence,” id. at 225, then the text of the statute ports away

from its meclusion as a “violent felony.” See Leocal v.

Ashcroft, $43 US. 1, 10-11 (2004) (defining “crime of

violence” under 18 U.S.C. § 16(b) to mean “violent, active

crimes’).

This Court in James suggested that some limits to the

residual clause are still waiting to be articulated The Court

concluded that Florida's version of attempted burglary, which

required proof of an overt act to enter a structure, James, 127

S. CL at 1594, cared a sufficient potential risk of violence to

satisfy the residual clause. But, this Court noted. other

jurisdictions allowed convictions for attempted burglary

based on conduct that poses a lesser nsk of confrontation with

others. /d. at 1596 n.4 (collecting cases where burglary was

defined to include mercly “making a duplicate key” or

“casing (a] building” or neighborhood). While this Court

withheld any judgment as to those statutes, it noted that the

msk of violence presented by such crimes was “more

attenuated.” Jd. at 1596.

This case presents a cnme with a substantially “attenuated”

risk of violent confrontation. A failure-to-report escape docs

not involve any active violence. Quite the contrary, a failure

to-report escape mvolves no action at all, it is a crime of

maction. There is no risk of violence in the commission of

such a crime preciscly because there is no risk of

confrontation in the commission of the crime. The individual

who fails to report is choosing nof to come into contact with

others, or expose himself to coming into contact with law

enforcement officials. The only nsk of violence that has even

been considered ty the lower courts 1s not in the commission

of a failure-to-report escape (as opposed to an escape from the

physical custody of an officer or a secure facility’, but rather

in the potential for subsequent apprehension. This Court

should specifically rule that the nsk of violence in subsoquent

apprehension may not, standing alone. provide the requisite

“serious potential risk” of harm to others for purposes of the

residual clause. 18 U.S.C. § 924(e)

Petitioner acknowledges, as the Seventh Circuit

emphasized below, that there is a dearth of statistical evidence

conceming how frequently fatlure-to-report or walkaway

escapes result in violence. Pet. App. Sa-6a. Burt this should

not deter this Court from engaging this question now. Courts

are today heing forced to apply this statute to crimes that are

not analogous to the enumerated violent felomes in the

ACCA. Decisions are. therefore, being made routinely on

less than perfect mformation. See James, 127 S. Ct. at 1608

(Scaha, J., dissenting) (noting that deciding whether to treat a

crime as falhng within the residual provision without hard

statistics “is an imponderable that cannot be avoided”). And

there is no way of knowing when the hoped-for data will

emerge, not only for failure-to-report escapes, but also for the

myriad other crimes that arguably fall within the residual

provision but are not analogous to any enumerated crime.

Also, it remains for this Court to decide which way the lack

of data cuts. It makes little sense to place upon the defendant

the burden of presenting data that a crime only infrequently, if

at all, involves harm to others, when it is the pros>cution that

is seeking to enhance the defendant's sentence based on its

argument that the crime is a “violent felony” within the

meaming of the ACCA. Indeed, as Justice Thomas has

observed, and again pointed out in his dissent in James, 127

S. Ct. at 1610 (Thomas, J., dissenting), allowing a judge to

resolve the contested question whether a particular pnor

conviction was, in fact, for a “violent felony” raises senous

constitutional concerns under the Sixth Amendment.

Shepard, $44 US. at 27 (Thomas. J., concurmmng). Those

concems are heightened when a court is asked lo review

potentially contested data and make a finding of fact

regarding the allegedly “woient™ nature of a particular crime.

It such statistical evidence is necessary al all, the prosecution

should be required to produce because the zovemment

‘

cares the burden of establishing that the defendant has three

prior convictions qualifying under the ACCA.

x* * *& *

In the end, this case presents this Court with an excellent

vehicle to resolve a split of authority concerning a frequently

recurring issue in federal criminal law. More broadly, this

case provides this Court with an opportunity to provide

venerally applicable standards for how lower courts should

determine whether a cnme that is not analogous to

enumerated cnmes in the ACCA falls within the residual

clause. This Court has already indicated in James that

articulating such a standard is desirable. This is especially so

in light of the fact that, absem this Court's guidance, the

lower courts are articulating cxpansive rationales that cause

the residual clause to encompass crimes far beyond the

ACCA's text and purpose. This Court's review is urgently

needed.

CONCLUSION

This petition for writ of certiorart should be granted

PHILIP J. KAVANAUGH

FEDERAL PURLIC DEFENDER

SOUTHERN DISTRICT OF ILLINOIS

ANDREA 1. SMITH

650 Missoun Avenue

East St. Lours, [linois 62201

(618) 482-9050

SARAH O'ROURKE SCHRUP

NORTHWESTERN UNIVERSITY

SUPREME COURT PRACTICUM

357 East Chicago Avenue

Chicago, Illinois, 60611

(312) 503-0063

Respectfully submitted,

oho NV Mockenees fae.

ROBERT N. HOCHMAN*

SIDLEY AUSTINILP

One South Dearborn

Chicago, Mhnois 60603

312-853-7000

Jervrey T. GREEN

SIDLEY AUSTIN LLP

1501 K Street N.W.

Washington, 1).C. 20005

(202) 736-8000

Counsel for Petitioner

May 8, 2007

* Counsel of Record

a ee a n

. 1p Pa ff

P .

‘

06 “> A s # % ws Ng ‘ Z be ts ,

CERTIFICATE OF SERVICE

No. 06: — sane tan US

Deondery Chambers, MAY 0 8 2007

Petuttoner, | OFFICE QF THE CLERK }

United States 0 America,

Respondent.

I, Jeffrey T. Green, do hereby certify that, on this eighth day of May, 2007, | caused one

copy each of the Motion For Leave To File In Forma Pauperis and the Petition For A Writ Of

Certiorari tn the foregoing case to be served by an overnight delivery service on the following

party.

Paut D. CLEMENT

SOLICITOR GENERA!

UNIHED StaAies DEPARTMENT OF JUSTICL

950 Pennsylvania Avenue, N W

Room 5614

Washington, DC 20530-0001

(202) §14-2217

A u) To

JEFFRP au Wi

SIDLEY AUSTIN LLP

150) K Street, N.W

Washington, DC 20005

(202) 736-8000

nap” se. oF US

| it

Mi vay -8 P WZ

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