Reply Brief — Chambers v. United States

PO»

No. 06-11206

IN THE

Supreme Court of the United States

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

PETITIONER’S REPLY BRIEF

Pritie J. KAVANAUGH ROBERT N. HOCHMAN*

FEDERAL PUBLIC DEFENDER SUDLEY AUSTIN LLP

SOUTHERN District oF ILLINGIs One South Dearbom

ANDREA L. SMITH Chicago, Illinois 60603

650 Missoun 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 CourRT PRACTICUM (202) 736-8000

357 East Chicago Avenue

Chicago, IIlimois, 606) }

(312) 503-0063

Counsel for Petitioner

July 25, 2007 * Counsel of Record

reenter cae ne

TABLE OF CONTENTS

Page

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PRTSTICNER'S REPLY BRIGP ........02.0000000000cecscccscecnesers

CONCLUSION ...........20c0:sccscersssersereeecseteeercsseeetrsceeen

(1)

TABLE OF AUTHORITIES

CASES Page

Adams v. United States, 127 S. Ct. 2095 (2007)... 7

Ballard v. United States, 127 S. Ct. 2094 (2007)... 7

James v. United Siates, 127 S. Ct. 1586 (2007)...... 2,7

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

United States v. Adewani, 467 F.3d 1340 (D.C.

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

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

United States vy. Collier, No. 06-1395, 2007 U.S.

App. LEXIS 16598 (6th Cir. July 12, 2007)... 2, 4, 5, 6

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

SERRE EN San PIRSA ce Se a a 5

United States v. Mathias, 482 F.3d 743 (4th Cir.

2007), petition for cert. filed, No. 07-61 (U.S.

July 12, 2007) ... ow . 4

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

Sei ciisishisilasechiniiesines thiihaiaisdeicaiiadisetnaiiadianibidsiinetteeen 2,6

United States v. Savage, No. 06-30451, 2007 U.S.

App. LEXIS 13713 (9th Cir. June 12, 2007)....... ‘a

United States v. Shepard, 544 U.S. 13 (2005).......... 1,3

United States v. Shipp, No. 06-5056, 2007 U.S.

App. LEXIS 11760 (10th Cir. May 17, 2007)..... 5

United States v. Taylor, No. 06-13139, 2007 U.S.

App. LEXIS 13822 (t1th Cir. June 13, 2007)..... 5

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

2003) ... ad - 6

Uniued States v v. , Semen, 361 F. 3d 653 (D. C. Cir.

2004), vacated, $43 U.S. 1111 (2005)... —_ 6

United States v. Winn, 364 F.3d 7 (tst Cir. 2004) ™ 4

STATUTES

En

Fee BD COIN crcccncusescocenceccescoseuestvevsectnennansnsete 3

IN THE

Supreme Guurt vf the United States

No. 06-1 1206

DEONDER Y 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

PETITIONER’S REPLY BRIEF

The government's Brief in Opposition never engages the

substantial grounds for granting certiorari in this case. The

government tries to avoid the question presented entirely by

ignoring the record in this case and the undisputed application

of this Court’s decisions in Taylor v. United States, 495 U.S.

$75 (1990), and United States v. Shepard, 544 U.S. 13

(2005). Contrary ta the government's argument, Opp. 4-5,

this case is not about whether a non-specific cnme of

“escape” is a “violent felony’ under the Armed Career

Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). The underlying

offense at issue was properly understood by the Seventh

Circuit as a mere failure to report for confinement. The

question is whether such a failure to report for confinement is

a “violent felony” under the ACCA

The government pretends there is no split of authority on

that question, but only by baselessly trying to confine the

2

Ninth Circuit’s decision in United States v. Piccolo, 441 F.3d

1084 (9th Cir. 2006), to the career offender provision of the

Sentencing Guidelines. [n attempting 10 so confine Piccolo,

the government ignores both the language of the ACCA,

which even the government acknowledges is “identical” to

the career offender Guideline, Opp. 6 n.2, and the numerous

courts of appeals that have held that the career offender

Guideline and the ACCA should be interpreted to mean the

same thing. Even: more importantly, the split of authority

implicated in this case has deepened since the petition was

filed, with the Sixth Circuit holding that a failure-to-report

escape under Michigan law is not a violent felony under the

ACCA. United States v. Collier, No. 06-1395, 2007 USS.

App. LEXIS 16598, at *7-15 (6th Cir. July 12, 2007).

Finally, the government inexplicably argues that this

Court’s recent decision in James v. United States, 127 S. Ct.

1586 (2007), does not support certioran because it “presents a

different question” from that presented here. Opp. 8. But that-

is precisely the point. As detailed in the petition, James Icft

open what both the majonty and dissenting opinions ©

recognized as an important question under the ACCA: what is

the standard for determining when a crime that is not

analogous to those enumerated in the ACCA qualifies as a

“wiolent felony.” This Court in James chose not to answer

that question because the crime in that case was analogous to

an enumerated crime. This admittedly different case presents

that important question, which this Court should resolve here.

1. The government admits that there is no doubt that

petitioner’s underlying conviction for “escape’’ under Illinois

law was for “failure to return from furlough or work release.”

Opp. 3. Because the basis of petitioner's conviction for

“escape” was not in doubt—it was undisputed that the Illinois

charging document had made clear that petitioner’s escape

charge was based on his failure to report for incarceration,

Pet. App. 22a—petitioner does not ask whether the generic

cnme of “escape” is a “violent felony” under the ACCA.

3

Petitioner asks instead whether the more specific kind of

“escape” that he had committed—failing to report to a penal

instituuon—is a violent felony. /d. at 3a.

The government refuses even to acknowledge that this case

presents the question whether a failure-to-repon escape is a

violent felony under the ACCA. Instead, the government

asserts that under Taylor this Court should refuse to

acknowledge that petitioner's “escape’’ was a failure-to-

report, and not a custodial escape. The only reason the

government gives for this sleight of hand around the actual

question presented by the petition is that Zaylor held that the

question “whether an offense creates a serious risk of injury

to another does not depend on the particular facts underlying

a conviction, but rather on the statutory definition of the

offense.” Opp. 5. What the government has not acknow-

ledged, however, is that, under both Jaylor and Shepard, to

define the “offense,” a court should look not only to the

statute, but also to, among other things, “the charging

document.” Shepard, 544 U.S. at 16; see also Taylor, 495

U.S. at 600-02. The government has simply mischaracterized

the “categoncal” rule of Taylor as if it required looking only

to the statute of conviction, with the result that it treats

petitioner's offense as if it were in a more generic category

(escape, undifferentiated) than this Court's decisions place it

(failure-to-report escape).’

' Even if a court were supposed to confine itself to the text of the statute

under which the defendant is convicted, which is moi the rule of Taylor

and Shepard, petitioner's offense would still properly be defined not as

genenc escape, but more nerrowly as non-custodial escape. The offense

of conviction at issue here is 720 ILCS 5/31-6(a), which reads as follows:

A person convicted of a felony or charged with the commission

of a felony who intentionally escapes from sny penal institution or

from the custody of an employce of that institution commits a Class 2

felony; however, a person convicted of a felony who knowingly fails

to report to 3 penal institution or to report for periodic imprisonment -

at any time or knowingly fails to return from furlough or from work

4

Not only are Taylor and Shepard clear on this point, but the

Seventh Circuit, in the decision under review, said that it

would be appropriate to “divid[e] escapes, for purposes of

‘crime of violence’ classification, into jai! or prison breaks on

the one hand and walkaways, failures to report, and failures to

return, on the other.” Pet. App. 3a. Though apparently of a

contrary view, the government fails even to cite this passage

of Judge Posner's decision, much less explain why it is

wrong. In fact, Judge Posner is correct, as both Taylor and

Shepard make clear. The offense for purposes of the violent

felony inquiry under the ACCA here is a failure-to-report

escape.

2. The government also ignores substantial authority in its

effort to make the split of authority in this case disappear.

The goverment acknowledges that the Ninth Circuit in

Piccolo held that a non-custodial walkaway escape from a

halfway house is not a crime of violence under the career

offender Guideline. Opp. 7. While admitting that the reason-

ing in Piccolo appears equally applicable to the ACCA, the

government noncthclcss suggests that the absence of a Ninth

Circuit decision strictly so holdiyg means there is no present

split of authority. /d. But, as petionecr pointed out, Pet. 9

n.2, the uniform view of lower courts is that the interpretation

of the career offender Guideline is applicable to the ACCA

violen! felony provision, and vice-versa. United States v.

Winn, 364 F.3d 7, 9 n.1 (ist Cir. 2004); United States v.

Mathias, 482 F.3d 743, 747 n.2 (4th Cir. 2007), petition for

cert. filed, No. 07-61 (U.S., July 12, 2007); Collier, 2007 U.S.

App. LEXIS 16598, at *4 n.3; United States v. Savage, No.

06-30451, 2007 U.S. App. LEXIS 13713, at *12 (9th Cir.

and day release or who knowinyly fails to abide by the terms of home

confinernent is guilty of a Class 3 feloay.

This statute expressly distinguishes between custodial escape, which is e

Class 2 felony, and non-custodial escape, including failure to report or

return from furlough or work release, which is a Class 3 felony. It is

undisputed that petitioncr’s underlying offense was in the latter category

5

June 12, 2007); United States v. Shipp, No. 06-5056, 2007

U.S. App. LEXIS 11760, at *11 (10th Cir. May 17, 2007);

United States v. Taylor, No. 06-13139, 2007 U.S. App.

LEXIS 13822, at *3-4 (11th Cir. June 13, 2007).

Furthermore, the government offers no explanation for why

the two provisions should have any different meaning. To the

contrary, the government expressly recognizes the “identical

language™ of the career offender Guideline and the ACCA.

Opp. 6 n.2. The government is unable to produce a principle

of law or sound policy that would counsel in favor of treating

the two provisions differently. There is none. Piccolo, then,

creates a live split of authority warranting this Court's review.

Significantly, the split has also deepened since the petition

was filed. On July 12, 2007, the Sixth Circuit distinguished

its prior decisions in United States v. Harris, 165 F.3d 1062

(6th Cir. 1999), and United States v. Anglin, 169 F. App'x

971 (6th Cir. 2006), cert. denied, 127 S. Ct. 1249 (2007), and

concluded that a failure-to-report escape under Michigan law

is not a violent felony under the ACCA. Collier, 2007 U.S.

App. LEXIS 16598, at *6-15. The Sixth Circuit expressly

noted the split of authority on the question, id. at *8, and

concluded that the only rationale that has ever been offered

for treating failure-to-report escapes as violent felonies under

the ACCA—that violence may ensue upon subsequent

capture—does not apply to failure-to-report escapes in

Michigan. /d at *11-15. As the Sixth Circuit observed,

Collier's

“escape” was simply stepping off a public Greyhound

bus—-where he was unaccompanied by any correctional

officials —and failing to repon to the facility to which he

was being transferred. We doubt that a statute covering

this “failure to report” variety of escape necessarily

“involves conduct that presents a scrious potential risk

of physical injury to another.”

Id. at *8 (quoting 18 U.S.C. § 924 (eX(2)(B)).

6

The D.C. Circuit had explained tn United States v. Thomas,

333 F.3d 280, 282-83 (D.C. Cir. 2003), why the risk of

violence upon subsequent capture “proves too much," Collier,

2007 U.S. App. LEXIS, at *9, and would logically entail

treating all crimes as crimes of violence.* Collier and

Thomas and Piccolo, 441 F.3d at 1089, and Judge Posner’s

discussion below, Pet. App. 2a, all reflect the common-sense

reaction that a failure to come into contact with law enforce-

ment officials by failing to report for confinement does not

create a “serious potential nsk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B)ii).? Justice Scalia’s dissent in

? The D.C. Circuit has since held that a non-custodial escape is a violent

felony. United Siates v. Adewant, 467 F.3d 1340, 1342 (D.C. Cir. 2006).

It is noteworthy, however, that in so holding, the D.C. Circuit did not

confront the persuasive dicta mn Thomas that argued against treating 0on-

custodia] escapes as violent felonies. instead, the D.C. Circust first

reconsidered the issue in a case, coincidentally also captioned United

States v. Thomas, where the factual record and the statute of conviction

leR the court uncertain whether the underlying escape conviction was

custodial or not United Siaies v. Thomas, 361 F.3d 653, 658-60 (D.C.

Cir. 2004) (defendants merely “hypothesize” that their underlying escape

cmmes were non-custodial, but point to no charging document or other

properly considered evidence (to support the hypothesis), vacated, 543

U.S. LtLl (2005). Adewani subsequently applied the result in the second

Thomas decision, without any further explanation, under circumstances

where it may have been clears that the defeadant's underlying crime was a

non-custodial walkaway offense. 467 F.3d at 1342 (noting Adewani’s

“contea{tion)” that hus convictions were for “walking away from halfway

houses” and ony quesuoning his contention).

> The result in Collier did not rest “solely” on the distinction berween

custodial and non-custodial escapes. Collier, 2007 U.S. App. LEXIS

16598, at *L1. The Sixth Circus also determined that a feilure-to-reporn

escape under Michigan law is aot a violent felomy because Michigan does

not treat “escape” as s continuing offense. /d at *11-)5. Whether a state

chooses to define “escape” as a continuing offense or not does not change

the fact that the potential for violence from a failure-to-report escape

anses only frora the attempt to capture the offender, not from any conduct

that the offender must undertake to commut the offense. In any event,

Collier's additional reason for teating failure-to-report escapes under

+

James specifically noted that treating walkaway escapes as

violent felonies suggests that “virtually any crime could

qualify.” 127S. Ct. at 1606 n.4 (Scalia, J., dissenting). And

petitioner argued thal this case presents this Court with an

opportunity to place some principled limit on this rationale so

that the ACCA does not expand far beyond its intended

scope. Pet. 15-18. The government, which merely parrots the

view that the nsk of subsequent capture supports treating all

categories of escape as violent felonics, Opp. 5-6, offers no

substantive response.

3. Finally, the government simply never disputes, or even

discusses, the fact that both the majority and dissenting

opinions in James expressed the view that the standard for

determining when an unenumerated offense that is not

analogous to any enumerated offense under the ACCA is a

violent felony remains an unreso!ved and important question

of law. Pet. 13-15. The government likewise never disputes

that the crime at issue here—-a failure-to-report escape—

would provide this Court with an opportunity to provide some

much needed guidance on that issuc.*

In sum, the Opposition fails to undermine any of the

compelling reasons to grant certiorari here. This case

presents a split of authority on a recurnng issue of federal law

that the opinions in James stated would benefit from

Michigan law differenuy from other escapes only furthers the difference

of opinion in the lower courts, underscomng the need for this Court's

review.

* The government: argues that this Court's previous denial of certirorari

in two cases where the certiorari papers were filed prior to James supports

denial of certiorari here. Opp. 9; sce Adums v. United States, 127 S. Ct.

2095 (2007), Ballard v. United States, 127 S. Ct. 2094 (2007). But the

fact that those petitions could oot have briefed the import of this Court's

decision in James shows that those pnor denials are of no sigruficance

here. Unlike here, the Court in those cases did not have the benefit of the

parties” presentation of the issues raised by James

consideration by this Court. The expansive view of the

ACCA that underlies petitioner's enhanced sentence requires

some hmiting principle that only this Court can provide.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully Submitted, )

kira V flrhoman/,.,

PHILIP J. KAVANAUGH ROBERT N. HOCHMAN*®

FEDERAL PUBLIC DEFENDER SIDLEY AUSTIN LLP

SOUTHERN DISTRICT OF ILLINOIS One South Dearborn

ANDREA L. SMITH _ Chicago, Ilinois 60603

650 Missoun Avenue (312) 853-7000

East St. Lous, llinois 62201

(618) 482-9050 JEFFREY T. GREEN

SIDLEY AUSTIN LLP

SaRAH O'Rourke ScuRuP 1501 K Street N.W.

NORTHWESTERN UNIVERSITY Washington, D.C. 2000:

SUPREME COURT PRACTICUM (202) 736-8000

357 East Chicago Avenue

Chicago, Illinois, 60611

(312) 503-0063

Counsel for Petinoner

July 25, 2007 * Counsel of Record

CERTIFICATE OF SERVICE

No. 06-1 1206

Deondery Chambers,

Petinoner,

Respondent

1, Robert N. Hochman, do hereby certify that, on this twenty-fifth day of July, 2007, I

caused one copy of the Petitioner's Reply Brief in the foregoing case to be served by an

overmght delivery service on the following party:

Paut D. CLEMENT

SOLICITOR GENERAL

UNITED STATES DEPARTMENT OF JUSTICE

950 Pennsylvania Avenue, N.W.

Room 5614

Washington, DC 20530-0001

(202) 514-2217

fhitboA I Moherec~/o./

ROBERT N. HOCHMAN

SIDLEY AUSTIN LLP

One South Dearborn

Chicago, Illinois 60603

(312) 853-7000