# Brief for the United States — Chambers v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0379%3A8

## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United States
- **Published:** January 1, 2009
- **Citation:** 555 U.S. 122

## Text

'

4

No. 06-11206

OFFICE OF THE CLERK

In the Supreme Court of the United States

DEONDERY CHAMBERS, PETITIONER

v.

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)

IV

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

V

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

Vi

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

IX

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

X

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

XI
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)

2

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

3

(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

4

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.

5

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

6

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

7

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.

8

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.

9

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.

10

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.

1]

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

12

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

13

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

14

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

15

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.

16

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.

17

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.

18

(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-

19

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

20

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

“"

21

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.

22

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.

23

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

24

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.

25

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).

26

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

27

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.

28

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

29

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

30

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

31

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,”

32

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).

33

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

34

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,

35

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-

36

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.

37

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-

38

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

39

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.

40

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.

41

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.

42

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)

43

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.

44

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

45

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

46

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”).

47

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

48

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)

5

2a

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.

s
,

3a
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.

4a

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

5a
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

er

-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

=
an

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

6a

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

|

1
Theft of a Motor Vehicle “Ss
Weapons Violation 1

Data obtained from Massachusetts Department of Cor-
rection, Fugitive Apprehension Unit, July 2008

7a

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

8a
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

9a

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
l
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

5

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

to

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]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0379%3A8. Public record. Not legal advice.