# Petition for Writ of Certiorari — Chambers v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009
- **Citation:** 555 U.S. 122

## Text

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
SY

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).

9

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

3
8
20

tv

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

Vv

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.

2
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.

3
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.

4

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.

5

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

6

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

7

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,

8

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

9

“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).

10

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

i

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

12

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).

13

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

14

“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

15

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

16

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

1?

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

19

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.

20

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,
v.
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~

| | 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)

Vv

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

»
“

v
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.
TO ccucrciissesnisisiakeineitstaveniioliaagtinatadinanin 14

United States v. Winn, 364 P3d 7 (Ist Cir.
Si cccncsdeniaiadbsedian louevannesitadiainaine intnn nee

STATUTES

NOTE. OT sesicicciccsieverensessasicusensianiatibataea passim
|) ee icdinlsmimcets ibiliadieaa 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

‘
7

19

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.

20

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0379%3A2. Public record. Not legal advice.