Brief for the United States — Chambers v. United States

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No. 06-11206

OFFICE OF THE CLERK

In the Supreme Court of the United States

DEONDERY CHAMBERS, PETITIONER

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

GREGORY G. GARRE

Solicitor General

Counsel of Record

MATTHEW W. FRIEDRICH

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor Generai

MATTHEW D. ROBERTS

Assistant to the Solicitor

Ceneral

J. CAM BARKER

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether petitioner’s conviction for escape, based on

his knowing failure to report to a penal institution after

his conviction for a felony, qualifies as a “violent felony”

under the Armed Career Criminal Act, 18 U.S.C. 924(e),

because it “involves conduct that presents a serious po-

tential risk of physical injury to another.”

(I)

TABLE OF CONTENTS

Page

cide wwe cgdbhda sy eseubesarsbeansenes 1

hie oe de onic cagtasedseanwensnes |

Statutory provisions involved ...................--++++-- 1

lag a em ee 2

ee Lice emew ike peereiedies 7

Argument:

Petitioner’s conviction for escape by knowingly failing to

report to a penal institution qualifies as a “violent

felony” under the Armed Career Criminal Act ......... 11

A. Failure-to-report escape presents a serious

potential risk of physical injury to others

comparable to the risk posed by burglary .......... 12

1. Aconvicted felon’s failure to report to prison

creates a serious potential risk of a

confrontation with law enforcement officers

seeking to recapture him ................00005- 13

2. A confrontation between an escapee and law

enforcement officers seeking to recapture him

has a serious potential] to become violent ........ 18

3. Statistical data is not necessary to demonstrate

the existence of a serious potential risk of

physical injury to others ...................... 21

B. Failure-to-report escape is purposeful, violent,

and aggressive in the same way as burglary ........ 22

1. Failure-to-report escape is purposeful because

the offender acts knowingly or intentionally ..... 23

2. Failure-to-report escape is violent and

aggressive because the offender deliberately

commits the crime despite the clear risk of an

ensuing violent confrontation .................. 26

(111)

Table of Contents—Continued: Page

3. Failure-to-report escape is not disqualified

from being a “violent felony” merely because it

involves the failure to comply with a legal duty ... 28

C. Courts may consider potential violence during

recapture in deciding whether failure-to-report

escape is a “violent felony” ................----05: 29

1. Whether the violence triggered by an offense

occurs during commission of the offense itself

or afterwards is irrelevant ................+... 29

2. Because failure-to-report escape is a

continuing offense, any violence during

recapture occurs during commission of the

RE A ceiuhs Ved uabubacnedeneeiescnes vccets 33

3. Considering potential violence during

recapture would not lead to absurd results ...... 35

D. The ACCA’s residual clause is not limited to

SUT GIES 606 cicccccsccndscvessecesscovces 36

1. The enumerated offenses are not all “property

ET dict dddundhesbesenscterenosalcotves 37

2. Status as a “property crime” is irrelevant to

ica c eye scasecececvccses 40

3. The ACCA’s legislative history does not

support a “property crimes” limitation .......... 42

4. The canon against surplusage does not support

a “property crimes” limitation ................. 43

5. Constitutional concerns do not support a

“property crimes” limitation ................... 45

E. The rule of lenity does not apply .................. 48

SD his dbndeiesacedamdebiedbs sh osetia vcoscdees 49

Appendix A — Relevant Statutory Provisions .......... la

Appendix B — Federal and State Statistics ............ 4a

TABLE OF AUTHORITIES

Cases: Page

Begay v. United States, 128 S. Ct. 1581 (2008) .... passim

Caron v. United States, 524 U.S. 308 (1998) ............ 19

Craig v. United States, 551 A.2d 440 (D.C. 1988) ....... 33

Exxon Mobil Corp. v. Allapattah Servs., Inc.,

I og chet eC eco iestecesouns 42

Farmer v. Brennan, 511 U.S. 825 (1994) .............. 47

Gooch v. United States, 297 U.S. 124 (1936) ............ 40

Hines v. United States, 890 A.2d 686 (D.C. 2006) .... 15, 25

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

Muscarello v. United States, 524 U.S. 125 (1998) ....... 48

People v. Higgins, 229 N.E.2d 161 (Ill. App. Ct. 1967) ... 26

People v. Miller, 509 N.E.2d 807 (Ill. App. Ct.

SE wiGecdyee hue CEs cuddshecasees euedevires 33, 34

Reynolds v. Commonwealth, 113 S.W.3d 647 (Ky. Ct.

PENS Sh. ded én ceusdabeduedcucestsccevescass 25

Scheidler v. NOW, 537 U.S. 393 (2008) ..............5. 39

Smith v. State, 361 A.2d 237 (Del. 1976) ............... 15

State v. Aldrich, 466 A.2d 938 (N.H. 1983) ............. 25

State v. Ammons, 963 P.2d 812 (Wash. 1998) .......... 16

State v. Furlong, 291 A.2d 267 (R.I. 1972) ............. 15

State v. Johnson, 245 S.W.3d 288 (Mo. Ct. App. 2008) ... 19

State v. Jones, 979 P.2d 898 (Wash. Ct. App. 1999) ...... 19

State v. Kealoha, 787 P.2d 690 (Haw. 1990) ............ 15

Taylor v. United States, 495 U.S. 575

SE C50 knnd4 sav kvacencebaeeas pens 29, 30, 31, 39, 42

United States v. Alpers, 338 U.S. 680 (1950) ........... 40

Cases—Continued: Page

United States v. Bailey, 444 U.S. 394

Se cab neceeces 23, 25, 33, 35

United States v. Bryant, 310 F.3d 550

eth ce cccccoceneeestes 4,5

United States v. Davis, 16 F.3d 212 (7th Cir.), cert.

denied, 513 U.S. 945 (1994) ........ cece eee eens 44

United States v. Doe, 960 F.2d 221 (1st Cir. 1992) ...... 33

United States v. Doe, 136 F.3d 631 (9th Cir. 1998),

cert. denied, 526 U.S. 1041 (1999) ..............-05. 24

United States v. Eaglin, 571 F.2d 1069 (9th Cir. 1977),

cert. denied, 435 U.S. 906 (1978) ...........000e cues 19

United States v. Evans, 333 U.S. 483 (1948) ........... 46

United States v. Franklin, 302 F.3d 722 (7th Cir.),

cert. denied, 537 U.S. 1095 (2002) ................ 5, 18

United States v. Golden, 466 F.3d 612 (7th Cir. 2006),

petition for cert. pending, No. 06-10751 (filed

ie 4 cee Ee db'seedéesetesees 5, 6,18

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

Ash Deine Rina ded cdeuns conetenseseese 5, 18

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

cert. denied, 539 U.S. 952 (2003) ........ 2... eee eee 13

United States v. Lancaster, 501 F.3d 673 (6th Cir.

2007), petition for cert. pending, No. 07-7987 (filed

EEE ESE AT AS ER OR 33

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

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

ERE 17, 18, 19

United States v. M.W., 890 F.2d 239 (10th Cir. 1989) .... 24

United States v. Nardello, 393 U.S. 286 (1969) ......... 38

United States v. Powell, 423 U.S. 87 (1975) ........-... 40

Vil

Cases—Continued: Page

United States v. Rodriguez, 128 S. Ct. 1783 (2008) ...... 19

United States v. Templeton, No. 07-2949, 2008 WL

4140616 (7th Cir. Sept. 9, 2008) ............c cece eee 7

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

DE Web éunéae GURebEERAEOREEACEOR Eee cccccecces 6

United States v. Thomas, 361 F.3d 653 (D.C. Cir.

2004), vacated on other grounds, 543 U.S. 1111

(2005), reaffirmed in relevant part by United

States v. Cook, 161 Fed. Appx. 7 (D.C. Cir.), cert.

denied, 456 U.S. 913 (2005) ...............4.. 6, 13, 18

United States v. Upton, 512 F.3d 394 (7th Cir. 2008),

petition for cert. pending, No. 07-10234 (filed

EE ahs ae edna ead bpekaennesss 5

United States v. Williams, 529 F.3d 1 (ist Cir. 2008)... . 24

United States, Ex parte, 242 U.S. 27 (1916) ............ 46

West v. State, 923 P.2d 110 (Alaska Ct. App. 1996) ...... 19

Wilkie v. Robbins, 127 S. Ct. 2588 (2007) .............. 39

Constitutions, statutes and guideline:

I En 47

Armed Career Criminal Act of 1984, 18 U.S.C.

ithe iadebucesd ious Céereny ses 2,11, la

EE Re EN eRe mrt 2

i i. ens cc ret sndcaiucsenddaee 3

EE TE ll

ED 04s n0ctsocenessenusel 43

18 U.S.C. 924(e(2\( Bil)... 2.2... 7, 31, 32, 34, 43, 48

ad dibs cdcdbeds 6cacdneennenunee 31

I 4. cewsbess cocecscesesuccceseccvaenenaens 24

Vill

Statutes and guideline—Continued: Page

nici ddandpgabeasecsesevcentesded 8, 25, 41

cs. scp gidecuneserdeesceansecusean 4,41

Ee i oes bed vesneensebeaeekeue 15

i idence ypetseseedecctesutesseni 45

oo cence recadncessncunceseceu 45

NS ds on 4 cbcadbaednssnenensecsanee 2,3

inn bacgeeéeanséseseesenesuneeenn 2

iin coc nsngucceneseserscetesdénvin §, 25

yn od ce uaivdsanedhecseanene 24, 32

ee oo cece nesgedctncncees 6aneeeee 41

ein ince cacesetenseseesiueiunee 30

EINE ca cccccocccscccoccncesddenet 45

a cons ncecnesdéecs cenccacosuesete 30, 37

tc esc cectecndccescececeseseesaenee 16

Ee i on awe s'gneecewrededl 4, 15, 16

Ala. Code (LexisNexis 2005):

DT hdenekgcceseeuesctecceesecesessenet 45

end eu kccebéseticedsdéeésonebenl 15

Alaska Stat. (2006):

oe ence ct cbéedesssedecenesesenl 25

EE odo oncctiecuncosensvesknee ee 45

ech ed onceneueoes ¢esseecenseeeenel 25

Tn) oc écpcébeceueeees cseeeunes teen 25

ae ae at new d ee ibaa ede enw aueene 25

ET ind dike kb centenes sebaeededniemenel 45

| | ETT T TTT TTTTTT ITT TT 25

Statutes and guideline—Continued: Page

Ariz. Rev. Stat. Ann. (2001):

ee adie once lic o aeekdiewnenese ced 45

Sah cette Joel ee cel sevendeues aie 15

ee ie i a ened tsannesneberkbiten 25

hn dinheed exch i dematane’emenweainl 25

ES aie dni cc ceeen eenadseeuaaeniueen 25

Ome ay toe > 45

Ark. Code Ann. (1997):

TT ke ons ca iuiawseueueedelin 45

a EE ES eo eee ee ree eee 46

Cal. Penal Code (West 2000):

th ne cicecveesnusncedeseuniil 46

chk haducen 6ueteceseedes eduesteln 15

hit die cee a dene bnendaseensenedsheees 15

Colo. Rev. Stat. Ann. (2006):

ok. ks ng enkaeenesdeaiv dua 15

ee oe ne ada cease ansenhedabelaen 15

Ck eee ieien 25, 46

Conn. Gen. Stat. Ann. (2007): .

ce ccd diceunseushesesanban 15

Ee a alt cided diene 15

Del. Code Ann. Tit. 11 (2007):

TB SES SE er ee ae a OO NLS 25

Dt iti sib ttitehekuentikeksesdadnéecktennd 25

Fla. Stat. Ann. (West 2001):

hol nceneeunstessesdendesysess tives 15

Ps dnditidendkevdsetenstesenensetuskdeees 15

Statutes and guideline—Continued: Page

Ga. Code Ann. § 16-10-52(a)(5) (2007) ............000.- 15

Idaho Code Ann. (2004):

er citi swe vennckguedens uneeedie 15

i et cies eduee venus cusenene resneee 15

720 Ill. Comp. Stat.:

digs 65.6n6ecendeuseoseees seca 23

cain cc inckcnscenscusbecehenni 23

5/4-5(b) (West 2002) ...... 2. cece eee eees 25, 26, 28

ks veces seeccessdcckutnnnue 26

an dn cecuicneesececesseeenheae 26

POPU IED ccc cece cccccccccccess pass*°m

730 Ill. Comp. Stat.:

ns dca cngeecsanpecucceseseoul 4

on wads nea wee esegcne 4

Kan. Stat. Ann. § 21-3809(b)(2) (1995) .............4... 15

Ky. Rev. Stat. Ann. § 520.010(5) (LexisNexis 1999) ..... 15

Me. Rev. Stat. Ann. tit. 17-A, § 755(1)(A) (2006) ........ 15

Md. Code Ann., Crim. § 9-404 (West 2008) ............. 25

Mass. Gen. Laws Ann. ch. 268, § 16 (LexisNexis 2002) .. 15

Mich. Comp. Laws Ann. § 750.193(3) (West 2004) ....... 15

Minn. Stat. Ann. § 609.485(1) (West 2003) ............. 15

Miss. Code Ann. (West 2005):

SCbhiedehcandiscids b6esseedseeuenband 15

Mie en ic eustdstencuneseveneinnn 15

Mo. Rev. Stat. (West 1999):

EFT TTT TTT 25

.. PPPEETTOITTIVITT TTT rT 25

Statutes and guideline—Continued: Page

Mont. Code Ann. § 45-7-306(2) (2007) .............. 15, 25

Neb. Rev. Stat. Ann. § 28-912(1) (LexisNexis 2003) ..... 15

Nev. Rev. Stat. Ann. § 212.095(1) (LexisNexis 2005) .... 15

N.H. Rev. Stat. Ann. § 651:24 (LexisNexis 2007) ....... 15

N.J. Stat. Ann. (West 2005):

cba eid eek tens Chenbedvevseeeen’ 25

Ne ee dl er esigedasenases 25

a ee een sehen 15

N.C. Gen. Stat. Ann. § 148-45(g)(1) (2007) ............. 15

N.D. Cent. Code (1997):

a pide da ld cadeguccaherdweul 25

had cee ei cpeklincdeieevecsceene 15

Okla. Stat. Ann. tit. 21, § 443(C) (West 2002) ........... 15

Or. Rev. Stat. Ann. § 144.500(2)(b) (2007) ....... fbcduas 15

18 Pa. Cons. Stat. Ann. (West 1983):

ee kt lecebiddsetaossucneecns 25

ee ds cus eyeusecesecésensaes 15

R.1. Gen. Laws § 11-25-4 (2002) .......... 0... eee cece 15

S.C. Code Ann. (2007):

ee ead ce ceceesenbatienseseecsaus 15

§ 24-3-210(C) .......... erie ou a hitiad: oe deka ae 15

Tenn. Code Ann. (2006):

eee i dc anc ecedseonsthaesuel 25

PCC Cr eveseredonwetsuccccecnstedeeces 15

XII

Statutes and guidelines—Continued: Page

Tex. Penal Code Ann. (Vernon 2003):

ee ee ts cabecueeknne 25

ik ig kad. cvs sae edesdeds petnsuebeabel 15

at ee ce oak coueéner eh caeskeb eee 25

Utah Code Ann. (West 2003):

ee a. os taeda ene keeeeen 25

i takinn ode ccceusvewcessaus temimanedl 25

ces ackdcbvevscenvessadesneesen 15

ess ceekbueescseceaGeeeene 15

Va. Code Ann. § 53.1-131(A) (2005) ............2...... 20

Wash. Rev. Code Ann.:

§ 9A.76.010 (West Supp. 2007) ....... cece eee eee 16

§$ 9A.76.110 (West 2000) ........... cece cece eee eee 25

§ 9A.76.110(1) (West Supp. 2007) ..............005- 16

W. Va. Code Ann. (2005):

ee iene o oe 66.006 00 ¥000se00ns dueeennd 16

ee a one cs ccvegscnseiessesene 16

Wis. Stat. Ann. (West 2005):

ais ces ckbadeceseacusesetaceune 16

EE EE PE En 16

ee aia os penccese ede bsnsdessedeons eke 16

ED: <n oc cageeseveusesseneasedeeuenn 6

Wyo. Stat. Ann. (2007):

A Adigd dedongn cigedsbeuwsesteeednetean 16

hea ceentcndeeesenddrsadathes cumin 16

ii éé pine ed wacerssbndsadenssbaseudsunen 16

United States Sentencing Guidelines § 4B1.2(a) ....... 5, 7

XIII

Miscellaneous:

Armed Career Criminal Legislation: Hearing Before

the Subcomm. on Crime of the House Comm. on

the Judiciary, 99th Cong., 2d Sess. (1986) .......... 42

Black’s Law Dictionary (8th ed. 2004) ................ 38

California Dep’t of Corr. & Rehab., Annwal Escape

Es ccneccdwickersdesvecbuabardveessces 14

Richard F. Culp, Frequency and Characteristic of

Prison Escapes in the United States: An Analysis

of National Data, 85 Prison J. 270 (2005) ........... 15

General Accounting Office, Federal Law Enforcement

Information on Use of Investment and Arrest

EE on nin decks cddcevekconssbesse 14

H.R. 4885, 99th Cong., 2d Sess. (1986) ............005. 42

H.R. Rep. No. 849, 99th Cong., 2d Sess. (1986) ...... 42, 43

Alan J. Keays, Man in Plea Deal on Several Charges,

RT I, WL Ga IIE ons ccc vcccccecccescs 19

Wayne R. LaFave, Substantive Criminal Law (2d ed.

2003):

ME ,ce504c45unenhwncosdacs 6éekee keene 29

REY Aol aid wiiae cidihetiuls tie ce bt a i 28, 29

EE said ac edskeundeduaedniasaeehdanee 28, 30, 39

James Lindgren, Blackmail and Extortion in

1 Encyclopedia of Crime and Justice (2002) ..... 30, 38

Model Penal Code (1985):

SR ee'stk ch keeenasadedsdneuerensniesebowes 28

XIV

Miscellaneous—Continued: Page

New York Dep't of Corr. Servs.:

Comparison of Temporary Release Absconders

and Non-Absconders: 1998-1994 (1995) ....... 14, 20

Temporary Release Program: 2007 Annual

PET tntakdsubeccdanecnesendsesecesas 14

Joshua Palmer, Nowhere to Run—Four Agencies

Corner Convicted Sex Offender, Times-News, Sept.

aks dete Sis a eakcake vada deneiessenedeannd 20

4 Charles E. Torcia, Wharton’s Criminal Law (1996) .. 38

Victim of Police Shooting at Store Was a Fugitive,

San Jose Mercury News, Feb. 15, 2001 ............. 20

Woman Who Fled With Fugitive Receives Suspended

Sentence, Portland Press Herald, Feb. 2, 2001 ....... 20

In the Supreme Court of the United States

No. 06-11206

DEONDERY CHAMBERS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (J.A. 90-95) is

reported at 473 F.3d 724.

JURISDICTION

The judgment of the court of appeals was entered on

January 9, 2007. A petition for rehearing was denied on

February 16, 2007 (J.A. 96-97). The petition for a writ

of certiorari was filed on May 8, 2007, and was granted

on April 21, 2008. The jurisdiction of this Court rests on

28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are reprinted in an

appendix to this brief. App., infra, la-3a.

(1)

STATEMENT

Petitioner pleaded guilty in the United States Dis-

trict Court for the Southern District of Illinois to pos-

sessing a firearm after having been convicted of a fel-

ony, in violation of 18 U.S.C. 922(g)(1). He had prior

convictions for robbery and aggravated battery, distrib-

uting cocaine near public housing, and escape by know-

ingly failing to report to a penal institution after convic-

tion for a felony. The district court determined that

those prior convictiens, including the conviction for

failure-to-report escape, qualified as “violent felon[ies]”

or “serious drug offense{s]” under the Armed Career

Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e), and thus

required a mandatory minimum 15-year sentence. The

court sentenced petitioner to 188 months of imprison-

ment. The court of appeals affirmed. J.A. 52, 84-85, 90-

95, 110-115.

1. Section 922(¢)(1) of Title 18, United States Code,

makes it unlawful for a person who has been convicted

of a felony to possess a firearm. Violation of that prohi-

bition ordinarily carries a maximum term of imprison-

ment of ten years. 18 U.S.C. 924(a)(2). The ACCA, as

amended in 1986, provides a 15-year mandatory mini-

mum sentence for persons convicted of violating Section

922(g)(1) who have three prior convictions “for a violent

felony or a serious drug offense.” 18 U.S.C. 924(e)(1).

The ACCA defines a “violent felony” to include “any

crime punishable by imprisonment for a term exceeding

one year” that:

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

threatened use of physical force against the per-

son of another; or

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that

presents a serious potential risk of physical in-

jury to another.

18 U.S.C. 924(e)(2)(B).

2. In May 2005, after petitioner and a neighborhood

resident exchanged heated words, petitioner drove to his

home, got a handgun, loaded it, and returned to the

scene of the fight. When he met his adversary there,

petitioner pulled out his gun and fired into the air. Peti-

tioner then fled in a car driven by his girlfriend. Police

officers tried to stop the fleeing car by positioning a

squad car in its path, but petitioner instructed his girl-

friend to swerve around the police car and to keep going.

The pursuit continued at speeds of up to 80 miles per

hour. In the course of the high-speed chase, petitioner

threw his gun out of the car window onto the lawn of a

residence. The gun was loaded with three rounds of live

ammunition. Petitioner was later arrested and detained

without bond. He pleaded guilty to possessing a firearm

as a felon, in violation of 18 U.S.C. 922(g)(1). J.A. 3, 27-

29, 30, 32, 35, 40-42, 100-103.

3. At sentencing, it was undisputed that petitioner

had two prior convictions for a violent felony or serious

drug offense: (1) a conviction for robbery and aggra-

vated battery and (2) a conviction for distributing co-

caine near public housing. It was also undisputed that

petitioner had a prior felony conviction under the Illinois

escape statute. Petitioner disputed, however, whether

that conviction qualified as a “violent felony” under the

ACCA. J.A. 110-115, 135-136.

The Illinois escape statute creates several offenses,

which vary in severity depending on the nature of the

violation and the underlying charges. The subsection of

the statute that is relevant here creates two offenses,

escape from a penal institution or direct custody, which

is a Class 2 felony, and escape involving the failure to

report or return to penal institution, which is a Class 3

felony:

A person convicted of a felony or charged with the

commission of a felony who intentionally escapes

from any penal institution or from the custody of an

employee of that institution commits a Class 2 fel-

ony; however, a person convicted of a felony who

knowingly fails to report to a penal institution or to

report for periodic imprisonment at any time or

knowingly fails to return from furlough or from work

and day release or who knowingly fails to abide by

the terms of home confinement is guilty of a Class 3

felony.

720 Ill. Comp. Stat. 5/31-6(a). Petitioner had been con-

victed of the “class 3 felony” of “knowingly fail{ing] to

report * * * to * * * a penal institution” following

conviction of a felony. J.A. 67. That offense is punish-

able by up to five years of imprisonment. 730 II]. Comp.

Stat. 5/5-5-3(b), 5/5-8-1(a)(6).'

The district court determined that petitioner’s fail-

ure-to-report escape qualified as a “violent felony”

based on United States v. Bryant, 310 F.3d 550 (7th Cir.

2002). J.A. 52. Bryant held that the federal crime of

escape, 18 U.S.C. 751, which includes failure to return to

custody after an authorized release, 18 U.S.C. 4082(a),

' Although the state court initially sentenced petitioner to six months

in jail (which was stayed), 30 months of probation, and a fine, his pro-

bation was subsequently revoked, and he was resentenced to five years

of imprisonment. He spent much of his sentence in segregated confine-

ment because of his violence while in prison. J.A. 113-114.

is a “crime of violence” under Sentencing Guidelines

§ 4B1.2(a) because it “involves conduct that presents a

serious potential risk of physical injury to another.” 310

F.3d at 553-554. Courts of appeals, including the Sev-

enth Circuit, have interpreted the ACCA’s “violent fel-

ony” provision to have the same meaning as the Guide-

lines “crime of violence” provision because the two pro-

visions have materially identical language. See, e.g.,

United States v. Upton, 512 F.3d 394, 404 (7th Cir.

2008), petition for cert. pending, No. 07-1024 (filed Mar.

31, 2008).

Bryant rejected the argument that a court should

assess a particular defendant’s manner of committing

the escape, which, in that case, was failing to return to

a halfway house after work release. 310 F.3d at 552-554.

The Bryant court concluded that “every escape scenario

is a powder keg, which may or may not explode into vio-

lence and result in physical injury to someone at any

given time, but which always has the serious potential to

do so.” Jd. at 553 (brackets omitted) (quoting United

States v. Franklin, 302 F.3d 722, 724 (7th Cir.), cert.

denied, 537 U.S. 1095 (2002), and United States v. Gos-

ling, 39 F.3d 1140, 1142 (10th Cir. 1994)).

Because petitioner had three prior convictions for a

violent felony or serious drug offense, the district court

concluded that he was subject to the ACCA’s 15-year

mandatory minimum. See J.A. 52, 54, 128. Applying the

advisory Sentencing Guidelines, the court sentenced

petitioner to 188 months of imprisonment, to be followed

by five years of supervised release. J.A. 60.

4. The court of appeals affirmed petitioner’s sen-

tence, rejecting his argument that failure-to-report es-

cape is not a “violent felony” under the ACCA. J.A. 90-

95. Relying on its prior decision in United States v.

“a

Golden, 466 F.3d 612 (7th Cir. 2006), petition for cert.

pending, No. 06-10751 (filed Apr. 9, 2007), the court held

that failing to report for custody, like escaping from cus-

tody, “involves conduct that presents a serious potential

risk of physical injury to another.” J.A. 91. Golden held

that a conviction under Wisconsin law for failing to re-

port to jail, Wis. Stat. Ann. § 946.425(1m)(b) (West

2005), qualifies as a “violent felony” under the ACCA.

466 F.3d at 615. The court concluded that the risk that

failure to report for custody will lead to physical injury

is essentially the same as the risk that direct escape

from custody will have that result. See id. at 614. The

court explained that, in both cases, law enforcement offi-

cers will attempt to capture the fugitive, a convicted

offender who knows that the future holds only incarcera-

tion. /bid. Thus, the court reasoned, both offenses cre-

ate the same potential for a violent confrontation be-

tween the offender and law enforcement officials at-

tempting to recapture him. /bid.

In this case, the court of appeals expressed regret

that it did not have statistics conclusively establishing

the frequency of violence in failure-to-report escapes.

J.A. 93-95. But the court noted that Golden had square-

ly held that failure-to-report escape is a “violent felony”

under the ACCA and that “[t]he other courts of ap-

peals,” except the District of Columbia Circuit—which

had reserved the issue—and the Ninth Circuit, were “in

accord.” J.A. 91-92 (citing cases).* The court of appeals

* Although the District of Columbia Circuit had declined to resolve

the issue in the decision cited by the court of appeals, see United States

v. Thomas, 333 F.3d 280 (2003), the District of Columbia Circuit later

agreed with the majority view that any escape, including a failure to

report or return, is a “crime of violence” and a “violent felony.” See

United States v. Thomas, 361 F.3d 653, 658-660 (2004) (holding that

therefore held that petitioner was subject to an en

hanced sentence under the ACCA. J.A. 93."

SUMMARY OF ARGUMENT

Petitioner’s conviction for escape by knowingly fail-

ing to report to a penal institution is a “violent felony”

under the Armed Career Criminal Act of 1984 (ACCA)

because it “involves conduct that presents a serious po-

tential risk of physical injury to another.” 18 U.S.C.

924(e)(2)(B)(ii).

A. Like attempted burglary, which was held to be a

“violent felony” in James v. United States, 127 S. Ct.

1586 (2007), failure-to-report escape creates a risk of

injury comparable in degree to the risk created by the

ACCA enumerated offense of burglary. Just as bur-

glary creates the risk of a violent confrontation between

the burglar and someone who comes to investigate,

failure-to-report escape creates the risk of a violent con-

frontation between the escapee and law enforcement

officers seeking to recapture him.

Law enforcement agencies make vigorous efforts to

recapture prisoners who fail to report, and those efforts

have a serious potential to become violent. A felon who

escape, including “[k}nowingly absenting oneself from custody without

permission,” is categorically a “crime of violence” under Sentencing

Guidelines § 4B1.2(a)), vacated on other grounds, 543 U.S. 1111 (2005),

reaffirmed in relevant part by United States v. Cook, 161 Fed. Appx. 7

(D.C. Cir.), cert. denied, 546 U.S. 913 (2005).

* After this Court's decision in Begay v. United States, 128 S. Ct.

1581 (2008), the Seventh Circuit reversed its position and held that

“failure to report to custody” is not a “crime of violence” under Guide-

lines § 4B1.2(a) and thus presumably also not a “violent felony” under

the ACCA. United States v. Templeton, No. 07-2949, 2008 WL 4140616,

at * 5 (Sept. 9, 2008). That decision is incorrect for the reasons stated

in this brief. See note 13, infra.

has refused to submit to custody is likely to possess a

volatile state of mind that may cause him to react vio-

lently to police officers and others who confront him.

The potential dangerousness of such a confrontation is

heightened by the fact that the escapee knows that the

future holds only incarceration, which he has already

found intolerable. Moreover, failure-to-report escapees

are, by definition, recidivist felons, and they often have

serious criminal records, including convictions for vio-

lent crimes. Petitioner, who has prior convictions for

robbery, aggravated battery, and cocaine distribution,

well illustrates this concern.

B. Failure-to-report escape also satisfies the addi-

tional requirement for qualification as a “violent felony”

that this Court recognized in Begay v. United States,

128 S. Ct. 1581 (2008). It is similar “in kind” to the enu-

merated crimes because it is “purposeful, violent, and

aggressive” in the same way as burglary. /d. at 1585-

1586.

Failure-to-report escape is purposeful like burglary

because it requires a mental state of knowledge or in-

tent. There is no sound reason to exclude knowing viola-

tions from the ACCA’s scope. At least two enumerated

offenses require only a mens rea of knowledge, as do

numerous crimes that are obviously “violent felonies,”

such as knowingly using a chemical weapon, 18 U.S.C.

229, and knowingly derailing a train, 18 U.S.C. 1992.

Failure-to-report escape is also violent and aggressive

in the same way as burglary. Commission of the offense

demonstrates that the offender is willing to risk a

closely-related, violent confrontation in which law en-

forcement officers or others could be injured.

Contrary to petitioner’s claim, failure-to-report es-

cape involves far more than “doing nothing.” Br. 14.

The escapee must make a conscious decision to disobey

a legal obligation to report for custody and to achieve a

result—his absence from prison—that contravenes that

legal duty. Inaction in the face of a duty is an act and

one that can result in many violent crimes, including

arson and burglary. The deliberate nature of the of-

fense conduct and its creation of a clear risk of a violent

result make failure-to-report escape purposeful, violent,

and aggressive for purposes of the ACCA.

C. Petitioner contends that courts may not consider

potential violence or injury unless it would occur “dwr-

ing the commission of the offense,” Br. 23, which in his

view excludes violence during recapture. But that con-

tention ignores the fact that several enumerated of-

fenses are classified as “violent felonies” because of vio-

lence that would occur only after commission of the of-

fense. A prohibition on considering post-offense vio-

lence has no support in the ACCA’s text and would frus-

trate its purpose.

Even if there were a requirement that the violence

risked by an offense must occur while the offense is on-

going, potential violence during recapture would satisfy

that test. Failure-to-report escape is a continuing of-

fense. Because the offense is not complete until the es-

capee returns to custody, violence during recapture oc-

curs during commission of the offense.

Moreover, the risk of violence during recapture is

qualitatively greater than the risk of violence in seeking

to apprehend ordinary felons. A person who has failed

to report to prison has demonstrated an unwillingness to

submit to custody; authorities will virtually always at-

tempt to recapture him; and, because he is a recidivist

who often has a serious criminal record, he poses a

greater danger than an ordinary criminal suspect.

D. The ACCA’s “otherwise” clause cannot be limited

to “property crimes.” Even under petitioner’s defini-

tion, at least two of the enumerated offenses—extortion

and crimes involving the use of explosives—are not

“property crimes.” In addition, status as a “property

crime” is irrelevant to the ACCA’s purpose of identify-

ing offenses that make it more likely that the offender

would willingly harm others to achieve his goals. Nor is

a “property crimes” limitation supported by the ACCA’s

legislative history or necessary to avoid rendering the

ACCA’s first clause superfluous.

Although petitioner claims that a “property crimes”

requirement is necessary to avoid purported constitu-

tional problems with the serious-risk inquiry mandated

by the ACCA, the constitutional concerns identified by

petitioner do not exist. The exercise of judicial judg-

ment to determine whether conduct presents a serious

risk of causing harm is a familiar aspect of statutory

construction, and the serious-risk inquiry is not more

difficult to apply here than in James or in other con-

texts.

E. Finally, the rule of lenity does not apply here.

Petitioner does not identify any language in the ACCA

that is ambiguous. Instead, he disagrees with the court

of appeals’ conclusion that a convicted felon’s deliberate

failure to report to prison creates a “serious potential

risk of physical injury to another.” That standard, al-

though it sometimes requires close examination and

comparison of particular offenses, is not ambiguous.

And failure-to-report escape clearly satisfies it.

ARGUMENT

PETITIONER’S CONVICTION FOR ESCAPE BY KNOW-

INGLY FAILING TO REPORT TO A PENAL INSTITUTION

QUALIFIES AS A “VIOLENT FELONY” UNDER THE

ARMED CAREER CRIMINAL ACT

The Armed Career Criminal Act of 1984, 18 U.S.C.

924(e), defines a “violent felony” to include “any crime

punishable by imprisonment for a term exceeding one

year” that “(i) has as an element the use, attempted use,

or threatened use of physical force against the person of

another,” or “(ii) is burglary, arson, or extortion, in-

volves use of explosives, or otherwise involves conduct

that presents a serious potential risk of physical injury

to another.” 18 U.S.C. 924(e)(2)(B). Petitioner’s convic-

tion for knowingly failing to report to a penal institution

(failure-to-report escape), in violation of 720 Il]. Comp.

Stat. 5/31-6(a), qualifies as a “violent felony” under that

definition because it “otherwise involves conduct that

presents a serious potential risk of physical injury to

another.”

To qualify under that residual clause, an offense

must satisfy a two-part test: First, it must create a po-

tential risk of physical injury to others that is “serious.”

That requirement means that the offense must create a

risk comparable in degree to the risk created by one of

the specifically enumerated crimes—burglary, arson,

extortion, or crimes involving the use of explosives. See

James v. United States, 127 S. Ct. 1586, 1594, 1596-1598

(2007). Second, the offense must be similar in kind to

the enumerated crimes. That requirement means that

it must be “purposeful, violent, and aggressive” in the

way that the enumerated crimes share those character-

istics. See Begay v. United States, 128 S. Ct. 1581, 1585-

1588 (2008). Failure-to-report escape satisfies both

parts of that test because it creates a potential risk of

injury to others that is comparable in both degree and

kind to the risk created by burglary.

A. Failure-To-Report Escape Presents A Serious Potential

Risk Of Physical Injury To Others Comparable To The

Risk Posed By Burglary

In James, this Court held that an offense presents a

“serious” potential risk of physical injury to another if

the risk of injury that it creates is comparable in degree

to the risk posed by one of the enumerated offenses.

See 127 S. Ct. at 1594, 1597-1598 (stating that the enu-

merated offenses provide “a baseline against which to

measure the degree of risk that a non-enumerated of-

fense must ‘otherwise’ present in order to qualify”). In

determining whether the risk posed by a crime is com-

parable in degree to the risk created by an enumerated

offense, the Court follows a “categorical approach.” /d.

at 1593. The Court considers the crime generically,

measured by the legal definition of the offense rather

than how it was committed on a particular occasion. /d.

at 1593-1594. The categorical approach does not require

that every factual scenario encompassed by the offense

present the requisite risk of injury. /d. at 1597. In-

stead, the Court examines “the conduct encompassed by

the elements of the offense, in the ordinary case.” /bid.

The Court in James concluded that the potential risk

of physical injury presented by attempted burglary is

comparable in degree to the risk posed by the enumer-

ated offense of burglary. The Court noted that “(t]he

main risk of burglary arises not from the simple physical

act of wrongfully entering onto another’s property, but

rather from the possibility of a face-to-face confronta-

tion between the burglar and a third party—whether an

occupant, a police officer, or a bystander—who comes to

investigate.” James, 1278S. Ct. at 1594. Attempted bur-

glary, the Court held, creates a similar “risk of violent

confrontation.” /d. at 1595. Considering both the likeli-

hood of confrontation and the likelihood that any con-

frontation will result in injury, the Court concluded that

the risk posed by attempted burglary is similar in de-

gree to the risk posed by burglary. /d. at 1599.

Failure-to-report escape likewise presents a poten-

tial risk of physical injury to others that is at least com-

parable in degree to burglary. Like burglary, failure-to-

report escape creates a serious risk of a violent confron-

tation between the offender and others, because law

enforcement officers are likely to pursue and attempt to

recapture the escapee, who has already demonstrated a

willingness to disobey a legal command to submit to cus-

tody.

1. Aconvicted felon’s failure to report to prison creates

a serious potential risk of a confrontation with law

enforcement officers seeking to recapture him

An offender commits failure-to-report escape if he

“knowingly fails to report to a penal institution” follow-

ing conviction of a felony. See 720 Ill. Comp. Stat.

5/31-6(a). That conduct creates a serious risk of a con-

frontation between the offender and others because the

offender’s absence from prison triggers efforts by law

enforcement to recapture him. United States v.

Thomas, 361 F.3d 653, 660 (D.C. Cir. 2004) (noting that

“escape invites pursuit; and the pursuit, confrontation”)

(quoting United States v. Jackson, 301 F.3d 59, 63 (2d

Cir. 2002)), vacated and remanded on other grounds, 543

U.S. 111 (2005), reaffirmed in relevant part by United

States v. Cook, 161 Fed. Appx. 7 (D.C. Cir.), cert. denied,

546 U.S. 913 (2005). That risk of confrontation is compa-

rable to the risk of confrontation between a burglar and

the occupants of the burgled premises or the police.

Indeed, the risk of a confrontation between a failure-to-

report escapee and law enforcement officers seeking to

recapture him is likely higher than the risk of a confron-

tation between a burglar and others. A burglar gener-

ally goes out of his way to ensure that his offense goes

undetected, casing the premises and breaking in only

when he is confident that the occupants are not present.

Prison officials, in contrast, know immediately when an

offender fails to report for confinement, and they gener-

ally take prompt action to return him to custody.

The United States Marshals Service informs us that

it assigns a law enforcement officer to seek to capture all

criminals who fail to report to prison. Accord General

Accounting Office, Federal Law Enforcement: Informa-

tion on Use of Investigation and Arrest Statistics 46

(2004) (explaining that the Marshals Service attempts to

locate and arrest federal fugitives who have escaped

from custody or failed to make a required appearance).

State law enforcement officials also make vigorous ef-

forts to recapture offenders who fail to report or to re-

turn to prison. See, e.g., New York Dep’t of Corr.

Servs., Temporary Release Program: 2007 Annual Re-

port 3 (2007) (stating that prison officials are “commit-

ted to apprehending absconders [from temporary re-

lease] as quickly as possible”); California Dep’t of Corr.

& Rehab., Annual Escape Report: Calendar Year 2007

at 10 (2008) (indicating that the average recapture rate

for all escapees over the past 30 years has been 99.1%);

New York Dep't of Corr. Servs., Comparison of Tempo-

rary Release Absconders and Non-Absconders: 1993-

1994 at v (1995) (N.Y. Absconder Report) (observing

that “[mJost inmates [who absconded from temporary

release] were returned to the Department involun-

tarily”).

Nationwide data indicate that approximately 75% of

all escapees are recaptured. Richard F. Culp, Fre-

quency and Characteristics of Prison Escapes in the

United States: An Analysis of National Data, 85 Prison

J. 270, 282 (2005). The recapture rate for absconders

from work release programs is 70%. /bid. The fact that

the federal government and the States take action to

recapture all escapees, including those who fail to return

to prison, is not surprising considering that the United

States, the District of Columbia, and at least 36 States

deem failure to return to be a form of escape or punish

it as severely.’

* See 18 U.S.C. 751(a), 4082(a); Ala. Code § 14-842 (LexisNexis

1995); Ariz. Rev. Stat. Ann. § 13-2501(4) (2001); Cal. Penal Code

§§ 4530(c), 4532(d) (West 2000); Colo. Rev. Stat. Ann. §§ 17-27-106(1 (a),

17-27.5-104 (2006); Conn. Gen. Stat. Ann. § 53a-169a)(4) and (5) (2007);

Smith v. State, 361 A.2d 237, 238 (Del. 1976); Hines v. United States,

890 A.2d 686, 689 (D.C. 2006); Fla. Stat. Ann. §§ 945.091(4), 951.24(4)

(West 2001); Ga. Code Ann. § 16-10-52(a)(5) (2007); State v. Kealoha,

787 P.2d 690, 691 (Haw. 1990); Idaho Code Ann. §§ 20-101C, 20-242(6)

(2004); Kan. Stat. Ann. § 21-3809(b)(2) (1995); Ky. Rev. Stat. Ann.

§ 520.010(5) (LexisNexis 1999); Me. Rev. Stat. Ann. tit. 17-A,

§ 755(1)(A) (2006); Mass. Ann. Laws ch. 268, § 16 (LexisNexis 2002); -

Mich. Comp. Laws Ann. § 750.193(3) (West 2004); Minn. Stat. Ann.

§ 609.4851) (West 2003); Miss. Code Ann. §§ 97-9-45, 97-9-49(2) (West

2005); Mont. Code Ann. § 45-7-306(2) (2007); Neb. Rev. Stat. Ann.

§ 28-912(1) (LexisNexis 2003); Nev. Rev. Stat. Ann. § 212.095(1)

(LexisNexis 2005); N.H. Rev. Stat. Ann. § 651:24 (LexisNexis 2007);

N.J. Stat. Ann. § 2C;:29-5(a) (West 2005); N.C. Gen. Stat. Ann.

§ 148-45(g¢)(1) (2007); N.D. Cent. Code § 12.1-08-06(1) (1997); Okla. Stat.

Ann. tit. 21, § 443(C) (West 2002); Or. Rev. Stat. § 144.500(2)(b) (2007):

18 Pa. Cons. Stat. Ann. § 5121(a) (West 1983); R.1. Gen. Laws § 11-254

(2002); State v. Furlong, 291 A.2d 267, 270 (R.1. 1972); S.C. Code Ann.

§§ 24-3-50, 24-3-210(C) (2007); Tenn. Code Ann. § 39-16-601(3) (2006);

Tex. Penal Code Ann. § 38.01(2) (Vernon 2003); Utah Code Ann.

Law enforcement officials have good reasons for

their forceful efforts to recapture failure-to-report es-

capees. Like other escapees, failure-to-report escapees

frequently have serious criminal records. For example,

in the federal system, approximately 72% of all defen-

dants convicted of failure-to-return escape (18 U.S.C.

4082(a)) between 2003 and 2007 had a criminal history

score in the top three categories of the Sentencing

Guidelines. See App., infra, 4a. Approximately 52% had

a criminal history score in the top two categories, and

35% were in the highest category. See ibid.

Statistics from the States also indicate that non-cus-

todial escapees frequently have serious criminal records,

including convictions for violent crimes. See App., infra,

5a (76% of Florida prisoners who escaped while on work

release between July 1, 2003, and June 25, 2008, were

serving time for violent crimes); id. at 6a (72% of Massa-

chusetts prisoners who failed to return from work re-

lease or other unsupervised activities from January 1,

2003, to June 30, 2008, were serving sentences for vio-

lent crimes); id. at 7a-8a (47% of North Carolina prison-

§ 76-8-309(1 (ai) and (4c) (West 2003); State v. Ammons, 963 P.2d

812,814 (Wash. 1998); Wash. Rev. Code Ann. §§ 9A.76.010, 9A.76.110(1)

(West Supp. 2007); W. Va. Code Ann. §§ 61-5-10, 62-11A~4 (2005); Wis.

Stat. Ann. $§ 303.065(2), 946.42(1)(a), 946.425 (West 2005); Wyo. Stat.

Ann. §§ 7-13-702, 7-16-309, 7-18-112 (2007).

Petitioner is therefore incorrect in suggesting (Br. 4-5 n.1) that most

States distinguish failure to report or return from custodial escape and

punish it less severely. Petitioner is also mistaken in relying on 18

U.S.C. 3146, which criminalizes bail-jumping and similar offenses as

well as failure to surrender for service of sentence. Bail-jumping is not

equivalent to the escape offense committed by petitioner because bail-

jumping does not entail the refusal to submit to custody by someone

who has already been found guilty of a crime and duly sentenced to in-

carceration.

ers who failed to return from work release, home leave,

community volunteering, or other outside activities from

January 1, 2003, to June 30, 2008, were serving sen-

tences for violent crimes); id. at 9a-10a (77% of Pennsyl-

vania failure-to-return escapees from January 1, 2003,

to June 24, 2008, were serving sentences for violent

crimes); id. at lla (60% of Washington prisoners who

failed to return from work release from January 1, 2003,

to July 23, 2008, were serving sentences for violent

crimes).” Moreover, anyone convicted for failure-to-re-

port escape in Illinois has, by definition, previously com-

mitted a felony offense. See 720 Ill. Comp. Stat.

5/31-6(a). Petitioner, for example, was serving time for

robbery and aggravated battery. J.A. 12-13, 110, 113.

There is thus no support for petitioner’s assertion

that “it is far less urgent” for law enforcement to purzue

escapees who fail to report for imprisonment than

those who escape directly from custody. Br. 25. On the

contrary, as the courts of appeals have recognized, any

escape, no matter what kind, is a serious matter

that warrants prompt recapture efforts by law enforce-

ment. See, e.g., United States v. Mathias, 482 F.3d 743,

748 (4th Cir. 2007), petition for cert. pending, No. 07-61

* This discussion classifies the following offenses as violent crimes:

murder, manslaughter, rape, arson, assault, battery, kidnapping, rob-

bery, burglary (including breaking and entering with intent to commit

a felony), attempting to elude a police officer, and “other violent

crimes.” Also included as violent crimes are drug manufacturing, drug

distribution, and possession of drugs with intent to distribute them, be-

cause those offenses, unlike simple possession, indicate involvement in

the drug trade, which is closely associated with violence. If drug man-

ufacturing and distribution crimes were not included, the percentage

of convictions for violent crimes would range between 40% (Washing-

ton) and 56% (Massachusetts). See App., infra, 4a-1 1a.

(filed July 2, 2007); United States v. Franklin, 302 F.3d

722, 724 (7th Cir.), cert. denied, 537 U.S. 1095 (2002).

2. Aconfrontation between an escapee and law enforce-

ment officers seeking to recapture him has a serious

potential to become violent

Efforts to recapture failure-to-report escapees pose

a serious potential risk of becoming violent. “|J Just as

the cautious burglar may be startled by the unexpected

return of the homeowner,” a failure-to-report “escapee

may suddenly be confronted by police officers sent to

apprehend him, leading to injury to the officers or by-

standers.” Thomas, 361 F.3d at 660. In the same way

that a burglar’s nervousness about being in a confined,

foreign environment may lead him to react violently

upon confrontation, a convicted felon who has refused to

submit to lawfully imposed custody is likely to experi-

ence a number of supercharged emotions that may cause

him to feel threatened by those who confront him and

therefore to resort to violence. See United States v.

Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994) (“[E]very

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 s0.”).

A failure-to-report escapee is particularly likely to

use violence to resist recapture because he knows that,

if he is recaptured, incarceration is a certainty. United

States v. Golden, 466 F.3d 612, 614 (7th Cir. 2006), peti-

tion for cert. pending, No. 06-10751 (filed Apr. 9, 2007).

His deliberate failure to report to prison demonstrates

that he finds the incarceration that awaits him to be in-

tolerable. Criminals in that situation “are unlikely to

calmly succumb to recapture efforts.” Mathias, 482

F.3d at 748. Moreover, as described above, failure-to-

report escapees generally have serious and violent crim-

inal histories, as petitioner’s criminal history well illus-

trates. And, in Illinois, every failure-to-report escapee

is necessarily not only a felon but (by virtue of his es-

cape) a recidivist, characteristics that are indicative of

dangerousness. See 720 Ill. Comp. Stat. 5/31-6(a);

United States v. Rodriquez, 128 S. Ct. 1783, 1789 (2008);

Caron v. United States, 524 U.S. 308, 312, 315 (1998).

The risk of violence is further increased because law

enforcement officers know of the fugitive’s demon-

strated hostility to custody and are prepared to protect

themselves. Unlike homeowners, who are frequently un-

armed when they confront a burglar, law enforcement

officers typically carry firearms. And they necessarily

seek to apprehend the escapee, while homeowners may

only try to drive the burglar away from the property.

Because recapture efforts present a significant po-

tential for violence, “hair-raising recovery efforts by law

enforcement officers [are] far from unusual.” Mathias,

482 F.3d at 748 (citing examples). Case law and newspa-

pers alike contain descriptions of violent confrontations

between failure-to-report escapees and law enforcement

officers seeking to recapture them. See, e.g., United

States v. Eaglin, 571 F.2d 1069 (9th Cir. 1977) (fugitive

who failed to return from temporary release shot at po-

lice officers who surrounded his apartment during un-

successful recapture attempt), cert. denied, 435 U.S. 906

(1978); State v. Johnson, 245 S.W.3d 288 (Mo. Ct. App.

2008) (fugitive who failed to report to jail shot at police

after leading them on high-speed chase); State v. Jones,

979 P.2d 898 (Wash. Ct. App. 1999) (same); West v.

State, 923 P.2d 110 (Alaska Ct. App. 1996) (fugitive who

failed to report to prison blew up his hideout after

standoff with state troopers); Alan J. Keays, Man in

Plea Deal on Several Charges, Rutland Herald, Dec. 17,

2007, (law enforcement officers and failure-to-return

escapee engaged in armed standoff); Joshua Palmer,

Nowhere to Run—Four Agencies Corner Convicted Sex

Offender, Times-News, Sept. 14, 2006 (failure-to-report

escapee brandished gun and engaged in two-hour stand-

off when law enforcement sought to recapture him); Vic-

tim of Police Shooting at Store Was a Fugitive, San

Jose Mercury News, Feb. 15, 2001, at 2B (police encoun-

ter with failure-to-report escapee led to gunfire);

Woman Who Fled With Fugitive Receives Suspended

Sentence, Portland Press Herald, Feb. 2, 2001, at 2B

(statewide manhunt for failure-to-report escapee culmi-

nated in deadly recapture attempt).

Despite this evidence of the serious potential risk

that recapture efforts will lead to violence, petitioner

argues (Br. 26-27) that violence is unlikely. He contends

that, because a failure-to-report escapee necessarily

enjoyed some limited freedom to move about the com-

munity, a public official must have made a determination

that the escapee does not present a significant danger.

That argument is fundamentally flawed because any

determination that the offender was not considered dan-

gerous enough to warrant secure confinement was made

before his escape. The escapee’s deliberate decision to

disobey the law and evade custody alters significantly

the assessment whether he is likely to use force to resist

recapture. Cf., e.g., N.Y. Absconder Report 2 (stating

that inmates who have committed “abscondence [or] es-

cape” may not further participate in temporary release

programs); Va. Code Ann. § 53.1-131(A) (2005) (provid-

ing that an offender who exceeds the limits of work re-

lease “shall be ineligible for further participation in a

“"

work release program during his current term of con-

finement”).

3. Statistical data is not necessary to demonstrate the

existence of a serious potential risk of physical in-

jury to others

Petitioner also argues (Br. 42) that the Court cannot

conclude that failure-to-report escape presents a serious

potential risk of injury because there is no hard statisti-

cal data documenting the magnitude of the risk.

That argument is untenable in light of James, in which

the Court held that attempted burglary presents the

necessary risk despite the absence of “hard statistics.”

James, 127 S. Ct. at 1598. Indeed, even the dissent in

James, which disagreed with the Court’s evaluation of

the risk presented by attempted burglary, acknowl-

edged that, under the ACCA, courts must decide, “with-

out hard statistics to guide them, * * * the degree of

risk of physical injury posed by various crimes.” /d. at

1608 (Scalia, J., dissenting) (internal quotation marks

omitted).

Petitioner cites no evidence that Congress intended

the decision whether an offense presents a serious risk

to depend on statistical analysis, rather than judicial

judgment based on experience and common sense. In-

deed, because hard statistical evidence about that risk

is seldom available, almost no crimes would qualify as

“violent felonies” under the ACCA’s residual clause if

hard statistical evidence were required. It is difficult to

imagine that Congress intended that result when it in-

cluded that “broad residual provision.” James, 127

S. Ct. at 1592.

B. Failure-To-Report Escape Is Purposeful, Violent, And

Aggressive In The Same Way As Burglary

Failure-to-report escape also satisfies the second

requirement for qualification as a “violent felony” under

the ACCA’s residual clause. In Begay, the Court con-

cluded that the presence of the four enumerated of-

fenses, coupled with the use of the word “otherwise,”

indicates that the residual clause covers only “crimes

that are roughly similar, in kind as well as in degree of

risk posed,” to the listed offenses. 128 S. Ct. at 1585. To

qualify as similar in kind, a crime must, like the enumer-

ated offenses, involve “purposeful, violent, and aggres-

sive” conduct. /d. at 1586. That similarity among the

listed offenses is “pertinent,” the Court reasoned, be-

cause it relates to the ACCA’s “basic purpose[{]”: identi-

fying prior crimes the commission of which makes it

more likely that the offender, later possessing a gun,

would use the gun to harm others. /d. at 1586-1587."

The Court held that the New Mexico effense of re-

peatedly driving under the influence of aleohol (DUI)

does not involve purposeful, violent, and aggressive con-

duct because “the offender need not have had any crimi-

nal intent at all.” Begay, 128 S. Ct. at 1586-1587. For

that reason, unlike the enumerated offenses of burglary

and arson, which involve “intentional or purposeful con-

duct,” a conviction for DUI does not show an increased

likelihood that the offender is the kind of person who

might deliberately harm others. /d. at 1587.

* The Court also clarified that the determination whether a crime is

purposeful, violent, and aggressive, like the determination whether it

poses a serious risk, is made under the categorical approach. Begay,

128 S. Ct. at 1584.

In contrast to DUI, failure-to-report escape involves

conduct that is purposeful, violent, and aggressive in the

same way as burglary. Failure-to-report escape is pur-

poseful like burglary because it requires a mental state

of intent or knowledge. And failure-to-report escape is

violent and aggressive like burglary because the of-

fender’s failure to report for imprisonment creates the

risk of a closely related, violent confrontation. The of-

fender’s deliberate decision not to report to prison, de-

spite the clear risk of a resulting confrontation in which

others are injured, makes it more likely that he would be

willing to harm others to carry out his plans.

I. Failure-to-report escape is purposeful because the

offender acts knowingly or intentionally

Unlike the strict-liability offense in Begay, failure-to-

report escape is a purposeful crime because it requires

a mental state of knowledge or intent. See 720 II.

Comp. Stat. 5/31-6(a). Knowledge and intent are the

most culpable mental states under Illinois criminal law.

See id. 5/4-4, 5/4-5. They are only subtly different: a

person acts “knowingly” if he is aware that his conduct

is practically certain to cause a proscribed result, where-

as a person acts “intentionally” if he affirmatively de-

sires that result. Compare id. 5/4-5 with id. 5/4-4. As

this Court has explained, that distinction is not impor-

tant in most crimes because “there is good reason for

imposing liability whether the defendant desired or

merely knew of the practical certainty of the results.”

United States v..Bailey, 444 U.S. 394, 404 (1980) (cita-

tion omitted).

Petitioner suggests (Br. 15) that failure-to-report

escape does not satisfy Begay’s “purposeful” require-

ment because the crime can be committed knowingly as

well as intentionally. But there is no sound reason for

excluding knowing violations from the scope of the

ACCA’s residual clause. The distinction between intent

and knowledge is irrelevant to the ACCA’s purpose be-

cause both mental states evince a deliberate decision to

cause a prohibited result. For example, the arsonist

who sets a fire knowing that a building will burn—what-

ever his purpose may have been—has willingly created

a risk of injury to others. That deliberate decision is

what increases the probability that the offender, if he

later possessed a gun, would use it to harm others. Peti-

tioner does not identify any court of appeals that has

held that knowing offenses are not “purposeful” under

Begay, nor are we aware of any. At least one court of

appeals has held to the contrary. See United States v.

Williams, 529 F.3d 1, 3, 7 (1st Cir. 2008).

A requirement that a crime be committed with the

mens rea of intent to qualify as a “violent felony” cannot

be reconciled with the enumerated crimes. Congress

presumably intended the federal arson offense, 18

U.S.C. 81, to qualify as “arson” under the ACCA, but the

federal offense may be committed with a mens rea of

knowledge. United States v. Doe, 136 F.3d 631, 635-636

(9th Cir. 1998), cert. denied, 526 U.S. 1041 (1999); Uni-

ted States v. M.W., 890 F.2d 239, 240-241 (10th Cir.

1989). In addition, several federal statutes involving the

use of explosives do not require the offender to act with

intent. See, e.g., 18 U.S.C. 1992(a)(3) (knowingly placing

a destructive device on a mass transportation vehicle

with reckless disregard for the safety of human life).

Moreover, an intent requirement would exclude from

coverage as “violent felonies” numerous offenses that

clearly present a serious risk of physical injury to others

and indicate an increased likelihood that the offender

would be willing to harm others to achieve his plans.

For example, jail-break escape under federal law and

the law of many States requires only a mens rea of

knowledge,’ and, in several more States, the offense may

be committed with a mens rea of recklessness." Other

crimes that would not qualify as “violent felonies” in-

clude knowingly using a chemical weapon, 18 U.S.C. 229,

and knowingly derailing a train, 18 U.S.C. 1992. Con-

gress could not have intended to exclude those crimes

from coverage under the ACCA.

In his effort to show that failure-to-report escape is

not purposeful, petitioner suggests (Br. 14) that the of-

fense could be committed by a defendant who made ev-

ery effort to report on time but was inadvertently de-

layed by traffic while traveling to prison. That counter-

intuitive suggestion is not correct. The conduct that

petitioner describes would not establish a “knowing”

violation. Under Illinois law, a person acts with knowl-

edge of a prohibited result only “when he is consciously

aware that such result is practically certain to be caused

by his conduct.” 720 Ill. Comp. Stat. 5/4-5(b). In peti-

" See Bailey, 444 U.S. at 408; Alaska Stat. §§ 11.56.300, 11.56.310,

11.56.320, 11.56.330, 11.81.610 (2006); Ariz. Rev. Stat. Ann. §§ 13-2502,

13-2508, 13-2504 (2001); Colo. Rev. Stat. Ann. § 18-8-208 (2006); Hines

v. United States, 890 A.2d 686, 689-690 (D.C. 2006); Reynolds v.

Commonwealth, 113 S.W.3d 647, 651 (Ky. App. 2003); Md. Code Ann.,

Crim. Law § 9-404 (West 2008); Mo. Rev. Stat. § 562.021(3) (West 1999);

id. § 575.210(3) (West 1995); Mont. Code Ann. § 45-7-306(2) (2007);

State v. Aldrich, 466 A.2d 938, 941-942 (N.H. 1983); N.J. Stat. Ann.

§§ 2C:2-2, 2C:29-5 (West 2005); Wash. Rev. Code Ann. § 9A.76.110

(West 2000).

* See Del. Code Ann. tit. 11, §§ 251(b), 6533 (2007); N.D. Cent. Code

$§ 12.1-08-06, 12.1-02-02(2) (1997); 18 Pa. Cons. Stat. Ann. §§ 302(c),

5121 (West 1983); Tenn. Code Ann. § 39-11-301(c), 39-16-605 (2006);

Tex. Penal Code Ann. §§ 6.02(c), 38.06 (Vernon 2003); Utah Code Ann.

§ 76-2-102, 76-8-309 (West 2003).

tioner’s example, the hapless traveler never acts or de-

cides not to act while aware that his decision will cause

him to be late to prison. Indeed, because the hypotheti-

cal defendant has made reasonable efforts to report on

time, his failure to report would not even establish the

less culpable mental states of “recklessness” or “negli-

gence” under Illinois law. See id. 5/4-6, 5/4-7. It neces-

sarily follows that the defendant would not satisfy the

more demanding mental state of knowledge. See, e.g.,

People v. Higgins, 229 N.E.2d 161, 163 (Ill. Ct. App.

1967) (“{O}ffenses involving the mental state of ‘intent’

or ‘knowledge’ require[] a higher degree of mental cul-

pability than an offense involving the mental state of

‘recklessness.’”).

Petitioner is likewise incorrect in suggesting (Br. 14)

that a defendant could commit failure-to-report escape

~by. oversleeping. The failure-to-report statute would

apply to a defendant who was asleep at the time he was

required to report to prison only if he had earlier “con-

sciously” decided not to report. 720 Ill. Comp. Stat. 5/4-

5(b). It is that conscious decision to avoid an imposed

term of imprisonment that makes failure-to-report es-

cape purposeful.

2. Failure-to-report escape is violent and aggressive

because the offender deliberately commits the crime

despite the clear risk of an ensuing violent confron-

tation

Failure-to-report escape is also “violent” and “ag-

gressive” within the meaning of Begay. An offense qual-

ifies as “violent” and “agyressive” if its commission in-

creases the likelihood that the offender would deliber-

ately harm others. See Begay, 128 S. Ct. at 1586. An of-

fense may indicate that inclination in one of two ways.

First, an offense may indicate the offender’s willingness

to inflict injury because the offender knowingly unleash-

es a force that can directly cause harm to others. For

example, a defendant commits the enumerated offense

of arson by setting a fire, and a fire can spread quickly

and injure others without subsequent human interven-

tion. Alternatively, an offense may indicate the offen-

der’s willingness to inflict injury because the offender

consciously commits the crime despite the clear risk that

it will trigger a violent confrontation in which others

may be harmed. The offender’s deliberate commission

of the crime despite the risk of a closely related, violent

confrontation demonstrates his willingness to cause in-

jury to others to achieve his plans.

Burglary is violent and aggressive in the second way.

Although the conduct involved in burglary does not in

itself cause injury to others, it demonstrates that the of-

fender is willing to risk a closely related, violent con-

frontation in which law enforcement officers or others

might be injured. The commission of burglary thus

makes it more likely that the offender might deliber-

ately harm others.

Failure-to-report escape is violent and aggressive in

the same way. A knowing failure to report to prison

does not in itself cause any physical injury. But the of-

fense conduct, by its nature, creates a clear risk of a

confrontation during recapture efforts in which law en-

forcement officers or bystanders may be injured. The

offender’s deliberate decision not to report to prison

despite the risk of that closely related, violeut confronta-

tion makes it more likely that he would willingly harm

others.

3. Failure-to-report escape is not disqualified from be-

ing a “violent felony” merely because it involves the

failure to comply with a legal duty

Petitioner contends (Br. 14-19) that failure-to-report

escape cannot qualify as purposeful, violent, and aggres-

sive because it “involves doing nothing” (Br. 14) and is

“committed by inaction” (Br. 19). That characterization

of the offense is not accurate. It ignores the fact that

the offender must knowingly achieve a result—his ab-

sence from prison—that contravenes his legal duty to

submit to custody. See 720 Ill. Comp. Stat. 5/31-6(a). As

discussed above, the “knowing” requirement means that

the offender must make a conscious decision to fail to

comply with his duty. See pp. 25-26, swpra; 720 IIl.

Comp. Stat. 5/4-5(b). Because he must make a conscious

decision to achieve that result, his conduct is not fairly

described as “doing nothing” or “inaction.” Whether he

takes a plane to the other side of the globe, hides out in

a hotel] room under an assumed name, or simply remains

at home is irrelevant. Whatever means he uses to cause

his absence from prison, the offender is deliberately

acting in contravention of his legal duty to report.

That kind of deliberate failure to comply with a legal

duty can be purposeful, violent, and aggressive. Crimi-

nal law considers the refusal to comply with a duty to act

to be equally culpable as an affirmative act. See

1 Wayne R. LaFave, Substantive Criminal Law § 6.1, at

422 (2d ed. 2003) (LaFave); Model Penal Code § 2.01(1)

(1985), reprinted in 3 LaFave App. 277. Many violent

crimes—most obviously murder and manslaughter—

may be committed by the failure to comply with a legal

duty. See 2 LaFave § 14.1; id. § 15.4. Thus, a ship cap-

tain who deliberately decides to let a sailor drown or a

railroad switchman who decides to allow two trains to

collide, kiling the passengers, by failing to switch one of

the trains to another track commits criminal homicide.

See 1 LaFave § 6.2(e), at 448 (noting that “one’s failure

to act to save someone toward whom he owes a duty to

act is murder if he knows that failure to act will be cer-

tain or substantially certain to result in death or serious

bodily injury”). Indeed, at least two of the enumerated

offenses may be committed by the failure to comply with

a legal duty. A defendant’s failure to put out a fire that

he accidentally started qualifies as arson if he intends to

cause the building to burn down. See ibid. And bur-

glary may be committed by the failure to leave a build-

ing that one lacks permission to occupy. See Taylor v.

United States, 495 U.S. 575, 598 (1990).

In all these situations, the deliberate nature of the

offense conduct and its creation of a clear risk of ensuing

violence make the crime purposeful, violent, and aggres-

sive. Failure-to-report escape is purposeful, violent, and

aggressive for the same reasons.

C. Courts May Consider Potential Violence During Recap-

ture In Deciding Whether Failure-To-Report Escape Is

A “Violent Felony”

Petitioner argues (Br. 19-24) that courts may not

consider potential violence during recapture in deciding

whether failure-to-report escape (or any escape, for that

matter) qualifies as a “violent felony.” That argument

is unsound.

1. Whether the violence triggered by an offense occurs

during commission of the offense itself or afterwards

is irrelevant

Petitioner first contends (Br. 19-21, 23) that courts

may not consider any potential violence or injury, no

matter how closely related to the offense, unless it would

occur “during the commission of the offense.” Br. 23.

That contention lacks any support in the either the text

or the purposes of the ACCA.

Petitioner’s contention cannot be squared with the

ACCA’s text because the injury risked by the enumer-

ated crimes often occurs after they are complete. In

many crimes involving use of explosives, for example,

any injury to others would occur only once the crimes

have already been committed. See, e.g., 18 U.S.C. 2275

(“plae{ing]” bombs or explosives in or upon a vessel with

intent to injure the vessel or persons on board); 18

U.S.C. 2332f(a) (“plaeling]” or “attemptling]” to

“place[], discharge], or detonate[]” an explosive device

in a public place). Similarly, arson is complete when a

building has been set on fire or burned, see, e.g., 18

U.S.C. 81, but any injury to persons often occurs after-

wards when the fire spreads or creates a smoke hazard.

The same is true of the enumerated crimes that are

violent and aggressive because the offender consciously

commits them despite the risk of a closely related, vio-

lent confrontation. In most States, a defendant commits

the crime of extortion by making a threat with the intent

to acquire something of value. See James, 127S. Ct. at

1604 (Scalia, J., dissenting) (citing 3 LaFave § 20.4(a), at

199); James Lindgren, Blackmail and Extortion in

1 Encyclopedia of Crime and Justice 102, 104 (2d ed.

2002) (Lindgren). That common, contemporary under-

standing of extortion presumably provides the definition

of generic “extortion” under the ACCA. See Taylor, 495

U.S. at 592-598. And, under that definition, any injury

to others would occur after the offense is complete,

when the offender decides to carry out the threat that he

has made. The potential violent confrontation in bur-

glary also may occur after the offense is complete. The

conduct necessary to commit generic burglary is enter-

ing or remaining without permission in a building with

intent to commit a crime. /d. at 598. A violent confron-

tation between the burglar and an occupant or police

officer may often occur only after the defendant is no

longer in the building. Indeed, when the Court assessed

the risk posed by attempted burglary in James, it ex-

pressly considered the risk of violence in a confrontation

occurring after the crime is completed. See 127 S. Ct. at

1599 (considering the risk of violence when an officer or

homeowner pursues a would-be burglar following an

attempted burglary).

A prohibition on considering injuries that occur after

commission of the offense also has no support in the re-

maining text of the ACCA. As petitioner notes (Br. 20),

the ACCA refers to the “conduct” “involve[d]” in the

offense. 18 U.S.C. 924(e)(2)(B)(ii). But the ACCA does

not require the offense conduct to involve “potential

physical injury.” Instead, it requires the conduct to in-

volve a “potential risk of physical injury.” /bid. Thus,

the offense conduct need not itself entail potential injury

but need only create a potential risk that injury will fol-

low. That conclusion is reinforced by the absence of any

language requiring that the injury occur “in the course

of committing the offense.” Congress included that pre-

cise language when defining a “crime of violence” under

18 U.S.C. 16(b). Its decision not to include similar lan-

guage in the ACCA is fatal to petitioner’s position.”

* Petitioner also errs in asserting (Br. 20) that his proposed rule is

required by the “‘categorical’ approach” to the ACCA. That approach

requires consideration of “the conduct encompassed by the elements of

the offense.” James, 1275S. Ct. at 1597. But it says nothing about what

the offense conduct must entail. The text of the ACCA tells us that: the

offense conduct must create a “serious potential risk of physical injury,”

A prohibition on considering injuries occurring after

commission of the offense also would not advance the

ACCA’s purpose. As petitioner acknowledges, that pur-

pose is to identify crimes that demonstrate that the of-

fender is willing to engage in conduct “where the risk of

harm to others is consciously known.” Br. 21. That goal

is best served by taking into account all harm that may

result from an offense so long as the offense conduct

creates a clear risk that the harm will occur. Whether

the harm will occur during commission of the offense

itself or in its immediate aftermath reveals nothing

about the offender’s willingness to injure others. In-

deed, petitioner’s proposed limitation would frustrate

the ACCA’s purpose. It would exclude an obviously vio-

lent crime like placing a biological toxin in a mass trans-

portation vehicle with the intent to endanger the safety

of another person, 18 U.S.C. 1992(a)(2), because any

injury to others would occur only after the toxin had

been placed on the vehicle. That cannot be what Con-

gress intended.

Contrary to petitioner’s contention (Br. 21), consid-

ering violence that follows the offense is fully consistent

with the statement in the government’s brief in Begay

that an offender’s “subsequent volitional choice (only

tangentially related to the offense . . . )” should not be

considered in evaluating whether the offense indicates

his willingness to harm others. U.S. Br. at 21, Begay

(No. 06-11543). That unremarkable proposition con-

cerns post-offense conduct that is “only tangentially

related to the offense.” /bid. It does not mean that

courts may never consider harm caused by human con-

duct that occurs after the offense. If that were the case.

regardless of when that injury would occur. 18 U.S.C. 924(e)(2)(B)(ii)

(emphasis added).

burglary and extortion would not qualify as “violent felo-

nies,” because neither results in injury absent volitional,

violent conduct that takes place after the offense has

been committed. The inclusion of burglary and extor-

tion as enumerated offenses makes clear that potential

violent conduct following the offense may be considered,

provided that the potential violence is “closely related”

to the offense. United States v. Doe, 960 F.2d 221, 225

(1st Cir. 1992) (Breyer, C.J.). And potential violence is

“closely related” to the offense when—as with burglary,

extortion, and failure-to-report escape—the offense con-

duct itself creates a clear risk that the violence will oc-

cur.

2. Because failure-to-report escape is a continuing of-

fense, any violence during recapture occurs during

commission of the offense

Even if there were a requirement that the violence

risked by an offense must occur while the offense is on-

going, potential violence during a recapture attempt

would satisfy that test. Illinois—like the federal govern-

ment, the District of Columbia, and the overwhelming

majority of States--treats failure-to-report escape as a

continuing offense. People v. Miller, 509 N.E.2d 807,

809 (Ill. App. Ct. 1987); see Bailey, 444 U.S. at 413;

United States v. Lancaster, 501 F.3d 673, 680 (6th Cir.

2007) (stating that only six States do not consider escape

to be a continuing offense), petition for cert. pending,

No. 07-7987 (filed Nov. 29, 2007); Craig v. United States,

551 A.2d 440, 440-441 (D.C. 1988). The conduct involved

in failure-to-report escape thus includes not only the of-

fender’s initial moment of absence but also his ongoing

failure to return to custody. /bid. Consequently, any

violence that occurs during the attempt to recapture the

escapee “occurs during the commission of the offense.”

Pet. Br. 23.

Petitioner argues (Br. 24) that courts still should not

consider violence during recapture because the continu-

ing nature of failure-to-report escape does not change

the minimum conduct necessary to satisfy the offense

elements. Whether an offense is a “violent felony” does

not, however, turn on the minimum conduct necessary to

commit it. “Rather, the proper inquiry” focuses on the

offense conduct “in the ordinary case.” James, 127 S.

Ct. at 1597. This Court has rejected the proposition that

an offense is not violent because there are “unusual

cases” in which it “might not present a genuine risk of

injury.” /bid. It is difficult to think of a more “unusual”

case than one in which the defendant commits only the

minimum conduct necessary to satisfy the offense ele-

ments. Considering only that minimum conduct would

not be consistent with the ACCA’s text, which refers

broadly to the “conduct” “involve[d]” in the offense, not

the “minimum” or “essential” conduct. 18 U.S.C.

924(e)(2)(B)(ii). Nor would petitioner’s proposed ap-

proach further the ACCA’s purpose. Because most of-

fenders engage in significantly more than the minimum

conduct necessary to commit the offense, considering

only the risk presented by that conduct would not accu-

rately capture the risk posed by the typical offender.

Petitioner also suggests (Br. 24 & n.7) that whether

escape is a continuing offense should not affect whether

it is a “violent felony” because a crime’s classification as

continuing has nothing to do with the danger posed by

the offender. That is incorrect. Failure-to-report es-

cape is classified as a continuing offense because “an

escaped prisoner poses a continuing threat to society”

during the entire period he remains at large. Miller,

509 N.E.2d at 808; see Bailey, 444 U.S. at 413. In other

words, failure-to-report escape is a continuing offense

precisely because of the risk that the offender may re-

sort to violence during recapture. It is therefore en-

tirely appropriate to consider that risk in deciding whe-

ther the crime qualifies as a “violent felony.”

3. Considering potential violence during recapture

would not lead to absurd results

Petitioner further contends (Br. 21-23) that classify-

ing failure-to-report escape as a “violent felony” based

on the risk of violence during recapture would lead to

absurd results. He argues that adopting that analysis

would require the conclusion that every crime is a “vio-

lent felony,” because every crime presents some risk of

a violent confrontation during the, offender’s arrest.

That argument is incorrect. The risk of violence during

recapture establishes that failure-to-report escape is

violent and aggressive because that risk is closely re-

lated to that specific offense. In contrast, the risk of

violence that inheres in every arrest is generally not

closely-related to the crime for which the defendant is

arrested. That is true for two reasons.

First, one commits failure-to-report escape by ab-

senting oneself from custody, which is the very obliga-

tion that law enforcement officers seek to impose

through recapture. In contrast, the conduct involved in

the ordinary crime does not include avoidance of cus-

tody. Because the offense conduct that constitutes es-

cape inherently involves avoidance of lawful custody,

escape and recapture are related in a way that arrest

and the typical crime are not.

Second, failure-to-report escape creates a clear risk

that there will be a violent confrontation during an at-

tempted recapture, but not every crime creates a compa-

rable risk that there will be a violent confrontation dur-

ing arrest. Both the risk of a confrontation and the risk

that the confrontation will be violent are greater for

failure-to-report escape than for ordinary offenses, such

as the financial crimes identified by petitioner (Br. 22).

The risk of a confrontation is greater because virtually

every failure-to-report escape will generate an effort at

recapture, while not every criminal offense will provoke

an arrest (because many defendants voluntarily surren-

der). Moreover, unlike the ordinary criminal suspect,

the escapee has already indicated both his willingness to

defy the criminal justice system and his unwillingness to

submit to custody. That means that the escapee is more

likely to resist recapture than the typical suspect is to

resist arrest. The risk that the escapee will use violence

is also greater than the risk that the ordinary suspect

will do so. As discussed above, failure-to-report escap-

ees are by definition recidivist felons, characteristics

which suggest that they pose a greater danger than or-

dinary suspects, who have not yet been convicted of a

crime. And failure-to-report escapees frequently have

very serious criminal records, including convictions for

violent crimes. Finally, escapees have more at stake and

less to lose by resorting to violence, because they al-

ready know that incarceration is a certainty upon recap-

ture.

D. The ACCA’s Residual Clause Is Not Limited To Property

Crimes

Petitioner proposes (Br. 13, 27-41) that the Court

interpret the ACCA’s residual clause to contain an addi-

tional requirement for a crime to qualify as a “violent

felony”—it must be a “property crime.” That proposed

interpretation is unfounded.

Il. The enumerated offenses are not all “property

crimes”

Petitioner does not identify anything in the text of

the residual clause that refers to “property crimes” or

suggests that the clause is limited to those offenses.

Instead, he invokes (Br. 13) the canon of eyusdem gen-

eris and this Court’s reasoning in Begay. He argues

that a “property crimes” limitation is a necessary exten-

sion of this Court’s ruling in Begay that offenses qualify-

ing under the residual! clause must be similar in kind to

the enumerated offenses, which petitioner asserts are all

“property crimes.” That argument fails at the outset

because not all the enumerated offenses are “property

crimes.”

Petitioner proffers a multifaceted definition under

which an offense qualifies as a “property crime” if the

offender either (1) “physically * * * invade[s] prop-

erty,” (2) attempts “to acquire property from another,”

or (3) releases a force “that necessarily would damage

property.” Br. 34. The only characteristic uniting those

categories is that they each attempt to describe the enu-

merated offenses in a way that involves property. Even

under petitioner’s tailor-made definition, however, at

least two enumerated offenses fail to qualify.

Crimes involving use of explosives are not property

crimes even under petitioner’s definition because they

do not necessarily threaten to “damage property.” Pet.

Br. 34. For example, a violation of 18 U.S.C. 2332f(a),

which criminalizes the unlawful detonation of an explo-

sive in a place of public use, need not “target[{] prop-

erty.” Pet. Br. 30. One can commit that offense by ex-

ploding a bomb in an open field and injuring only people.

Explosives offenses are included in the ACCA not be-

cause they risk damaging property but because the un-

lawful use of explosives shows the offender’s willingness

to injure others. In a particular case, use of explosives

may damage property that is nearby, but that does not

mean that every offense involving use of explosives is a

“property crime.”

Extortion too is not a property crime, even under pe-

titioner’s definition, because it does not necessarily re-

quire an attempt to obtain “property.” The contempo-

rary understanding of extortion (whith, as discussed

above, controls under the ACCA) entails an effort to

obtain “anything of value.” 4 Charles E. Torcia, Whar-

ton’s Criminal Law § 658, at 492-493 (1996); see Lind-

gren 102 (stating that extortion includes “obtaining pro-

perty” or “compelling any action against one’s will”);

Black’s Law Dictionary 623 (8th ed. 2004) (defining

statutory extortion as “obtaining something or compel-

ling some action” by force or coercion); James, 127 S. Ct.

at 1606 (Scalia, J., dissenting) (defining extortion under

the ACCA as “the obtaining of something of value from

another” by certain prohibited means); id. at 1605 n.2

(noting that the Court had previously defined generic

extortion under the Travel Act and RICO as “obtaining

something of value from another with his consent in-

duced by the wrongful use of force, fear, or threats” (ci-

tations omitted)). Extortion may be used to obtain a

favor from a public official, a false confession in judicial

proceedings, or the use of a business for money launder-

ing. See, e.g., United States v. Nardello, 393 U.S. 286,

295 n.13 (1969) (explaining that extortion “is typically

employed by organized crime” to “infiltrate legitimate

businesses|] and obtain contro! of labor unions”). Extor-

tion is therefore “generally classified as a crime against

the administration of justice or against the conduct of

government, rather than as a crime against property.”

3 LaFave § 20.4, at 197-198."°

Petitioner relies (Br. 29) on the Model Penal Code

for the proposition that extortion is a form of theft and

therefore targets property. Model Penal Code § 223.4,

reprinted in 3 LaFave App. 325. But that provision ad-

dresses “theft by” extortion and defines only when a

person “is guilty of theft.” /bid. It does not account for

the full range of conduct prohibited by generic extortion.

And it does not reflect the ACCA’s purpose of identify-

ing offenses that show an offender’s willingness to injure

others. A person who obtains a false confession by

threat of force shows as much willingness to injure oth-

ers as a person who extorts some tangible good by the

same threat. It is the threat, not the benefit obtained,

that is important. There is no good reason to conclude

that extortion under the ACCA is a “property crime.”

Even the enumerated offense of burglary is a

“property crime” only in the sense that it requires un-

lawful entry into or remaining in a building or structure.

See Taylor, 495 U.S. at 598. Generic burglary does not

require an intent to obtain or to damage property, but

” In Wilkie v. Robbins, 127 S. Ct. 2588 (2007), this Court observed

that, “[a]t common law, extortion was a property offense committed by

a public official who took any money or thing of value that was not due

to him under pretense that he was entitled to such property by virtue

of his office.” Jd. at 2605-2606 (quoting Scheidler v. NOW, 537 U.S. 393,

402 (2003)). In neither Wilkie nor Scheidler, however, did the Court

have occasion to consider whether extortion under the ACCA, which is

not coextensive with common-law extortion, see p. 30, supra; Taylor,

495 U.S. at 592-595, is a property crime. Moreover, a “thing of value”

can include benefits, such as access tw a legislator or the promise of his

vote, that do not constitute “property” in ordinary parlance. The

Court’s passing reference to common-law extortion as a “property

crime” therefore does not support petitioner’s argument here.

only an “intent to commit a crime.” /bid. That crime

need not concern property at all. Thus, petitioner can

classify burglary as a “property crime” only by expand-

ing his definition to include offenses that occur at cer-

tain properties, even if the offender does not seek to

harm or wrongfully to obtain any property. By so ex-

panding his definition, petitioner undermines his claim

that the enumerated offenses are “property crimes” in

any meaningful sense.

2. Status as a “property crime” is irrelevant to the

ACCA’s purpose

Even if petitioner were correct that all the enumer-

ated offenses are “property crimes,” that would not jus-

tify limiting the residual clause to that category. A

“property crimes” limitation would still not be justified

under either the canon of ejyusdem generis or the Court’s

reasoning in Begay because it would not serve the

ACCA’s purpose—identifying offenses the commission

of which makes it more likely that the offender would

use a gun to harm others.

Under the canon of eyusdem generis, the Court often

construes a general term that follows a list of specific

terms in a statute as covering only matters similar to the

specific terms. But the Court infers a limitation under

that principle only if the limitation advances the stat-

ute’s purpose. See, e.g., United States v. Powell, 423

U.S. 87, 90-91 (1975); United States v. Alpers, 338 U.S.

680, 682-683 (1950); Gooch v. United States, 297 U.S.

124, 128 (1936). Similarly, in Begay, the Court held that

offenses covered under the residual clause must, like the

enumerated offenses, involve purposeful, violent, and

aggressive conduct because that “pertinent” common at-

tribute “matters considerably” for achieving “the Act’s

basic purposes.” 128 S. Ct. at 1586-1587.

A limitation to property crimes, in cortrast, would do

nothing to advance the ACCA’s purpose. Crimes that

target people, property, or abstract concepts like the

“public order” can all involve the potential that the of-

fender will deliberately injure others. Because all those

categories of crimes can indicate the offender’s willing-

ness to injure others, all of them should be able to qual-

ify as “violent felonies” under the ACCA.

Indeed, a “property crimes” limitation would affir-

matively frustrate the ACCA’s purpose. It would ex-

clude from coverage offenses like jail-break escape, 18

U.S.C. 751, inciting a riot, 18 U.S.C. 2101, or using a

chemical weapon, 18 U.S.C. 229. Those purposeful, vio-

lent, and aggressive offenses create a serious potential

risk of physical injury to others, and their commission

surely makes it more likely that the offender would will-

ingly harm others to achieve his plans. Excluding them

from qualification as “violent felonies” because they are

not “property crimes” would therefore undermine Con-

gress’s aim in enacting the ACCA."

3. The ACCA’s legislative history does not support a

“property crimes” limitation

Contrary to petitioner’s contention (Br. 31-33), the

ACCA’s legislative history also does not support a

“property crimes” limitation. This Court has stated that

" Petitioner also errs in arguing (Br. 30-31) that the ACCA’s struc-

ture supports a “property crimes” limitation. He contends that such a

limitation would make the ACCA’s residual clause coextensive with the

“property crimes” nature of subsection (ii) and distinct from the

“crimes targeting persons” in subsection (i). But the distinction be-

tween the two subsections arises from the focus of subsection (i) on

elements involving force and the focus of subsection (ii) on results

involving potential injury. Subsection (ii) need not be further limited by

an artificial “property crimes” constraint.

legislative history is relevant only if it “shed[s] a reliable

light on the enacting Legislature’s understanding of

otherwise ambiguous terms.” Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 567-568 (2005).

Petitioner has not pointed to any language in the ACCA

that even remotely suggests that the residual clause

might be limited to property crimes.

In any event, the legislative history does not indicate

that Congress intended a “property crimes” limitation.

When Congress amended the ACCA in 1986, its purpose

was to expand the predicate offenses beyond robbery

and burglary. In response to criticism of the initia! pro-

posals to accomplish that goal, Congress focused on a

compromise bill. That bill expanded the predicate

crimes to cover any “violent felony,” which the bill de-

fined to include a crime that:

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

threatened use of physical force against the per-

son of another; or

(ij) involves conduct that presents a serious poten-

tial risk of physical injury to another.

H.R. 4885, 99th Cong., 2d Sess. 3 (1986) (quoted in Tay-

lor, 495 U.S. at 586). The House Report on the compro-

mise bill stated that subsection (ii) included offenses

such as “burglary, arson, extortion, [and] use of explo-

sives,” which were offenses specifically mentioned in the

congressional hearings. See H.R. Rep. No. 849, 99th

Cong., 2d Sess. 5 (1986) (quoted in Taylor, 495 U.S. at

587); Armed Career Criminal Legislation: Hearing

Before the Subcomm. on Crime of the House Comm. on

the Judiciary, 99th Cong., 2d Sess. 15 (1986) (statement

of Mr. Knapp). The enhancement provision as finally

enacted followed that form, but added to subsection (ii)

the specific offenses that were mentioned in the House

Report.

Petitioner emphasizes that the House Report de-

scrives subsection (ii) as “add{ing] all State and Federal

felonies against property * * * where the conduct in-

volved presents a serious risk of injury to a person.” Br.

32-33 (quoting H.R. Rep. No. 849, supra, at 5). But the

House Report does not indicate that Congress believed

“violent felonies” would be limited to property crimes.

To the contrary, the language of the bill covered the

specified crimes as a subset of a broad category. And

that broad category was defined in terms of the risk of

physical injury, not status as a property crime.

4. The canon against surplusage does not support a

“property crimes” limitation

Petitioner also argues (Br. 28-29) that limiting the

residual clause to property crimes is required by the

canon against surplusage. That is not correct.

Petitioner may be right that every offense that satis-

fies the ACCA’s first clause, because it has “as an ele-

ment the use, attempted use, or threatened use of physi-

cal force against the person of another,” 18 U.S.C.

924(e)(2)(B)(i), would also satisfy the residual clause,

because it would be a purposeful, violent, and aggressive

offense that “involves conduct that presents a serious

potential risk of physical injury to another,” 18 U.S.C.

924(e)(2)(B)(ii); see Begay, 128 S. Ct. at 1585-1586. That

does not mean, however, that the first clause is “super-

fluous.” Pet. Br. 28. The first clause provides an objec-

tive method for qualifying a prior conviction as a violent

felony that does not require a court to engage in the

qualitative analysis required by the residual clause. A

court can determine that an offense qualifies under the

first clause simply by examining the offense elements.

To determine whether the offense qualifies under the

residual clause, the court must conduct an analysis of

the risk of physical injury that the offense creates. Con-

gress may well have retained the first clause so that

courts would not need to engage in the close examina-

tion and comparison of crimes whose elements them-

selves include the use of force.

Furthermore, Congress included the residual clause

as a “catch-all” designed to cover violent felonies that

might not qualify under the first clause. James, 1275.

Ct. at 1592 (quoting United States v. Davis, 16 F.3d 212,

217 (7th Cir.), cert. denied, 513 U.S. 945 (1994)). In do-

ing so, Congress was likely more concerned about ensur-

ing full coverage than eliminating possible redundancy.

Accordingly, “the canon against surplusage has substan-

tially less force when it comes to interpreting a broad

residual clause like the one at issue here.” Begay, 128 S.

Ct. at 1591 (Scalia, J., concurring).

In any event, even if the residual clause had to be

narrowed to avoid surplusage, that would not justify

limiting it to property crimes. Rather, the most natural

way to eliminate any surplusage would be to limit the

residual clause to offenses that lack the elements speci-

fied in first clause. See Begay, 128 S. Ct. at 1591 (Scalia,

J., concurring) (“[T}t would raise no eyebrows to refer to

‘crimes that entail the use of force and crimes that, while

not entailing the use of force, nonetheless present a seri-

ous risk of injury to another person.’”). That approach

would avoid excluding more than what is necessary to

eliminate any surplusage.

5. Constitutional concerns do not support a “property

crimes” limitation

Petitioner further contends (Br. 34-41) that constitu-

tional problems with the statutorily-mandated inquiry

into whether a crime presents a “serious potential risk

of physical injury” require the Court to substitute a

“property crimes” limitation. The constitutional quan-

daries identified by petitioner do not exist, and, in any

event, they could not justify the atextual requirement

that he proposes.

Petitioner first argues (Br. 39-40) that the serious-

risk standard is unconstitutionally vague. This Court

already rejected that argument in James. The Court

explained that, although the standard requires judges to

make evaluations that are “sometimes difficult,” it is not

“so indefinite as to prevent an ordinary person from un-

derstanding what conduct it prohibits.” James, 127 S.

Ct. at 1598 n.6. As the Court noted, other federal stat-

utes use “[sjimilar formulations.” /bid. (citing 18 U.S.C.

2332b(a)(1)(B) (defining “terrorist act” to include con-

duct that, among things, “creates a substantial risk of

serious bodily injury to any other person”)); see 18

U.S.C. 844(f)(2) (providing enhanced penalty for mali-

cious destruction of property by fire or explosive that

“creates a substantial risk of injury to any person”); 21

U.S.C. 858 (providing additional penalty where manufac-

ture of controlled substance “creates a substantial risk

of harm to human life”). Numerous state statutes also

require judicial or jury assessments of the substantiality

of risk."* The ACCA provides more guidance than many

2 AJl or virtually all States have criminal laws that define reckless

endangerment, kidnapping, resisting arrest, or other offenses by using

some formulation similar to “serious risk of physical injury.” See, e.g.,

Ala. Code § 13A-6-24(a) (LexisNexis 2005) (“substantial risk of serious

physical injury”); Alaska Stat. § 11.41.300(a)(2)B) (2006) (same); id.

§ 11.56.700 (“substantial risk of physical injury”); Ariz. Rev. Stat. Ann.

§ 13-1201(A) (2001) (“substantial risk of imminent death or physical

injury”); td. § 13-2508(A)(2) (“substantial risk of causing physical in-

jury”); Ark. Code Ann. § 5-11-103(a) (2006) (“substantial risk of serious

of those statutes on the meaning of its serious-risk stan-

dard because the enumerated offenses provide examples

of what satisfies that standard.

Petitioner also argues (Br. 40-41) that the serious-

risk inquiry violates separation-of-powers principles

because it entails “[dJefining crimes and fixing penal-

ties,” which are “legislative” rather than judicial fune-

tions. Br. 40 (quoting United States v. Evans, 333 U.S.

483, 486 (1948), and Ex parte United States, 242 US. 27,

41-42 (1916)). Petitioner’s reliance on those cases is un-

founded. In Ex parte United States, the Court held that

a district court exceeds the judicial power when it sus-

pends a sentence that it is required to impose by statute.

242 U.S. at 37-52. This case does not involve a judicial

refusal to comply with a statutory command. Evans is

likewise inapposite. In that case, the Court held that,

where Congress has defined a crime but failed to pre-

scribe a penalty for its commission, the Court’s selection

of a penalty from among several plausible possibilities

would be purely speculative and therefore “outside the

bounds of judicial interpretation.” 333 U.S. at 484-485,

495. In this case, by contrast, Congress has defined the

crime in question, and it has fixed the penalties for its

commission. This case does not call on the Court to

“plug [a] hole in the statute,” id. at 487; it calls on the

Court to interpret the statute. That is a judicial func-

tion.

As described above, many federal and state statutes

call for a determination whether the risk presented by

certain conduct is “substantial” or “serious.” Making

physical injury”); id. § 5-13-206(a) (“substantial risk of physical in-

jury”); Cal. Penal Code § 278.6(a)(1)(a) (West 2008) (“substantial risk

of physical injury or illness”); Colo. Rev. Stat. § 18-3-208 (2006) (“sub-

stantial risk of serious bodily injury”).

that determination is well within the constitutional com-

petence of the judiciary. See, e.g., Farmer v. Brennan,

511 U.S. 825, 828 (1994) (describing an inmate’s judicial-

ly-administered right under the Eighth Amendment to

be free from prison officials’ deliberate indifference to

a “substantial risk of serious harm”).

For similar reasons, petitioner is incorrect in arguing

(Br. 34-35, 38) that the Court should substitute a “prop-

erty crimes” limitation for the serious-risk inquiry be-

cause the limitation would be easier to administer. The

courts are fully capable of conducting an inquiry into the

risk presented by a particular crime, and they must do

so in numerous contexts. Moreover, a “property crimes”

limitation would not be as easy to administer as peti-

tioner suggests. The difficulty in applying such a limita-

tion is illustrated by the dispute in this case about whe-

ther several enumerated crimes would qualify. See pp.

37-40, supra. In any event, administrability concerns

cannot justify rewriting the ACCA by substituting a

requirement that the statute clearly does not impose for

one that it clearly imposes.

Although petitioner contends that substitution of a

“property crimes” limitation for the serious-risk inquiry

“eomports with how this Court resolved both Begay and

James” (Br. 35-36), that contention is plainly incorrect.

James “considered only matters of degree, 7.e., whether

the amount of risk posed by attempted burglary was

comparable to the amount of risk posed by the example

crime of burglary.” Begay, 128 S. Ct. at 1585. And the

Court in Begay confirmed that the ACCA’s residual

clause requires consideration of whether an offense is

“roughly similar” to the enumerated offenses not only

“in kind,” but also “in degree of risk posed.” /bid. The

Court did not inquire into whether the crime at issue

was a “property crime” in either case. There is thus no

support for the novel “property crimes” limitation that

petitioner proposes.

E. The Rule Of Lenity Does Not Apply

Finally, contrary to petitioner's argument (Br. 43),

the rule of lenity does not apply here. That rule is “re-

served for cases” that, unlike this one, involve a “griev-

ous ambiguity” in the statutory text such that, “after

seizing everything from which aid can be derived,” the

Court “can make no more than a guess as to what Con-

gress intended.” Muscarello v. United States, 524 U.S.

125, 138-139 (1998) (internal quotation marks and cita-

tions omitted).

Petitioner does not identify any language in the

ACCA that is ambiguous. Instead, he simply disagrees

(Br. 43) with the court of appeals’ conclusion that a con-

victed felon’s deliberate failure to report to prison cre-

ates a “serious potential risk of physica! injury to an-

other.” 18 U.S.C. 924(e)(2)(B (ii). The serious-risk stan-

dard, although it sometimes requires careful examina-

tion of the nature of particular crimes, is not ambiguous.

And, for the reasons discussed above, failure-to-report

escape clearly satisfies that standard.”

"’ Although the Seventh Circuit, in a recent case, reversed the posi-

tion that it took below, see note 3, supra, that action provides no reason

for this Court to decline to resolve the question presented in this case.

The Seventh Cireuit’s change of position increases, rather than

decreases, the existing tension among the courts of appeals, and the

Court’s resolution of the question presented will definitively determine

whether petitioner's sentence is legally authorized. The Seventh Cir-

cuit’s new position is incorrect for the reasons explained above and, if

applied to this case, would improperly require petitioner's mandatory

minimum 15-year sentence under the ACCA to be set aside.

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

GREGORY G. GARRE

Solicitor General

MATTHEW W. FRIEDRICH

—_7* Assistant Attorney

MICHAEL meg DREEBEN

Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to the Solicitor

General

J. CAM BARKER

Attorney

OCTOBER 2008

APPENDIX A

RELEVANT STATUTORY PROVISIONS

1. 18 U.S.C. 922 provides in pertinent part:

Unlawful acts

**+ *& *€

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a

erime punishable by imprisonment for a term ex-

ceeding one year(,]

* ¢* ££

to ship or transport in interstate or foreign commerce,

or possess in or affecting commerce, any firearm or am-

munition; or to receive any firearm or ammunition which

has been shipped or transported in interstate or foreign

commerce.

2. 18 U.S.C. 924(e) provides in pertinent part:

Penalties

* &*+ * * *

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

of this title and has three previous convictions by any

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

violent felony or a serious drug offense, or both, commit-

ted on occasions different from one another, such person

shall be fined under this title and imprisoned not less

than fifteen years, and, notwithstanding any other provi-

sion of law, the court shal! not suspend the sentence of,

(la)

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 * * * that—

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

or threatened use of physical force against the

person of another; or

(ii) is burglary, arson, or extortion, involves

use of explosives, or otherwise involves conduct

that presents a serious potential risk of physical

injury to another.

ss **# * *

3. 720 Ill. Comp. Stat. 5/31-6 (West 2003) provides in

pertinent part:

F scape; failure to report to a penal institution or to re-

port for periodic imprisonment

(a) A person convicted of a felony or charged with the

commission of a felony who intentionally escapes from

any penal institution or from the custody of an employee

of that institution commits a Class 2 felony; however, a

person convicted of a felony who knowingly fails to re-

port to a penal institution or to report for periodic im-

prisonment 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 is guilty

of a Class 3 felony.

4. 730 Ill. Comp. Stat. 5/5-8-1 (West 2007) provides in

pertinent part:

Sentence of Imprisonment for Felony

(a) Except as otherwise provided in the statute defin-

ing the offense, a sentence of imprisonment for a felony

shall be a determinate sentence set by the court under

this Section, according to the following limitations:

*+_* *& * *

(6) for a Class 3 felony, the sentence shal] be not

less than 2 years and not more than 5 years[.]

5. 730 Ill. Comp. Stat. 5/5-5-3 (West 2007) provides in

pertinent part:

Disposition

(b) The following options shall be appropriate dispo-

sitions, alone or in combination, for all felonies and mis-

demeanors other than those identified in subsection (c)

of this Section:

(1) A period of probation.

(2) A term of periodic imprisonment.

eee * #

(4) A term of imprisonment.

*** * *

(6) A fine.

APPENDIX B

FEDERAL AND STATE STATISTICS

United States

Defendants Convicted of 18 U.S.C. 4082 Escape by

Criminal History Category, 2003-2007

Criminal Number of Cumulative

History Convicted Percentage

Category Defendants of Total

VI 39 35%

V 19 52%

~ TV 22 72%

Ill 31 100%

Data obtained from United States Department of Jus-

tice, Criminal Division, Office of Policy and Legislat:on,

July 2008, using data provided by the United States

Sentencing Commission

Florida

Escapes from Work Release Centers Between July 1,

2003, and June 25, 2008, by Primary Offense Group/Pri-

mary Offense Description

Number

Offense Grou

1 -Murder/Manslaughter

3 -Robbe

4 -Violent, Other

"5-28 -Burglar , Structure

5-29 -burgl , Dwelling

5-00 -Burglry ary, Armed

1- ary with Assault

5-32 a eS Other

-Gran eft,

6-34 -Grand Theft, Automobile

'§-35 -Stolen Pr

6-36 -Forger mastering

6-37 -Worthless Checks

(2. 24S ee

er roperty Damage

,SPREGERCEEEEGEE

7-40 Weaas Wanelectars’

Sale/Purchase

7-41 -Drugs -Drugs, Trafficking

7 -A2 - 42--Drugs Possession/Other

8 -Weapons

"9 -Other

ae]

Data obtained from Florida Department of Corrections,

Bureau of Research and Data Analysis, June 2008

Massachusetts

Failure-to-Return Escapees from January 1, 2003, to

June 30, 2008, by Incarceration Offense

incarceration Offense Number

Armed Robbery 3

Armed Assault 1

Assault and Battery with Deadly

Weapon 4

Distribution of Class B Cocaine Bs

“Possession of Class B Cocaine with

Intent to Distribute 1

Possession of Class B Substance 1

Larceny over $250 1

Breaking and Entering with Intent to

Commit Felon .

Unarmed ta

Theft of a Motor Vehicle “Ss

Weapons Violation 1

Data obtained from Massachusetts Department of Cor-

rection, Fugitive Apprehension Unit, July 2008

North Carolina

Offenders Who Failed to Return from Work Release,

Home Leave, Community Volunteering, or Other Out-

side Activities from January 1, 2003, to June 30, 2008

Crime of Incarceration

Number

Armed Robbery

Arson 2nd La

Assault with Deadly Weapon

Burglary lst Degree

| Bu ~y 2nd Degree

Cheat - Property/Services

‘Common Law Robbery

DWT Level 1

Felony B&b

Habitual Felon

Seed arene

Kidnapping 2nd Degree of a Minor

Kidnapping 2nd Degree

Larcen

Larceny (Over $200)

Larceny of Motor Vehicle

"Larceny over $1000

Malicious Conduct/Prisoner

"Misdemeanor B&bh

Murder Second Degree

Possess WITS Schedule II

Possessing Stolen Goods

Possession of Firearm by Felon

ape First ee 1

ee with Seairens Weapon 4

chedule 1

Data obtained from North Carolina Department of Cor-

rection, Policy Development Analyst, July 2008

Pennsylvania

Failure-to-Return Escapees from January | 2003, to

June 24, 2008, by Offense Type

Offense Type Number

“Access Device Fraud 1

Accident with Death-Inj 1

| Aslt 21

Aslt with SerBodInj 3

Kit with Won

Bur rary 26

Contraband/Cntrl Subst 1

Corrupt Orgns l

Crim Attempt 1

Crim Conspiracy 9

rags PWID— :

Drugs- 61

DUE i

Firearm in public I

Firearm without license 3

Firearms-Unlawful Possess 1

Forgery 4

‘Kidna ing ag

Murder 3 2

Prostitution ca 1

To eee Prop 4

abbery ——— rey

bbe 3

Robber wT Sr aT 4

moe ren 2

That by Deception 1

10a

Theft-Movable Prop 4

rVOP_

Data obtained from Pennsylvania Department of Cor-

rections, Bureau of Planning, Research, Statistics, and

Grants, July 2008

lla

Washington

Escape by Failure to Return from Work Release from

January 1, 2003, to July 23, 2008

Incarceration Offense Number

Arson

Assault

| Attempt to Elude

Au thet

urglar

Criminal Mistreatment

Manufacture/Delivery of Drugs

er Dru

Fail to Register Sex Offender

'Maliscious Mischief

Murder 2nd

a (Theft/Forgery/PSP) _

ic Nuisance Sex

Robbe

Unlawtol Possession of Firearm

Data obtained from Washington Department of Correc-

tions, Planning and Research, July 2008

-S-13} 1-424 21-132]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.