# Opposition Brief — Taylor v. United States (No. 07-668)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

No. 07-668

Jn the Supreme Court of the Gnited States

JASON DANIEL TAYLOR, PETITIONER
Vv.
UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

ALICE S. FISHER

Assistant Attorney General
KEVIN R. GINGRAS

Attorney

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

QUESTION PRESENTED

Whether petitioner’s prior conviction for escape con-
stituted a violent felony under the Armed Career Crim-
inal Act of 1984, 18 U.S.C. 924(e).

(I)

TABLE OF CONTENTS

Page
INE S55 ds Fn de Noy Keb AAR OR eee swe N Es Re Ren hE 1
EE OS I ET IE PE Oa PONE Oe SPE NN opos E 1
I COC 2. ak o han ad 4 ke kobe ah beeen ee ches be eens 1
EE 535. 5c bb KeWEO ee been KE KARM PS RES ROEM Eh eeRkae an en 4
PT OEE yo, SNe RE wn ec 10
TABLE OF AUTHORITIES
Cases:
Adams v. United States, 127 S. Ct. 2095 (2007) .......... 9
Ballard v. United States, 127 S. Ct. 2094 (2007) ......... 9
Begay v. United States, cert. granted, No. 06-11543
NR ks $45 0 x0ckabaapeaoew hte ees nesc ks 9, 10
Braxton v. United States, 500 U.S. 344 (1991) ........... 8
Brooks v. United States, 127 S. Ct. 3003 (2007) .......... )
Flowers v. United States, 127 S. Ct. 2935 (2007) ......... 9
James v. United States, 127 S. Ct. 1586 (2007) .......... 4
Kimbrough v. United States, 128 S. Ct. 558 (2007) ....... )
Rita v. United States, 127 S. Ct. 2456 (2007) ............ 8
Taylor v. United States, 495 U.S. 575 (1990) .......... 3,4
United States v. Adams, 442 F.3d 645 (8th Cir. 2006),
cert. denied, 127 S. Ct. 2095 (2007) ................-. 7
United States v. Booker, 543 U.S. 220 (2005) ............ 8
United States v. Collier, 493 F.3d 731 (6th Cir. 2007) ..... 7
United States v. Gay, 251 F.3d 950 (11th Cir. 2001) ...... 3
United States v. Golden, 466 F.3d 612 (7th Cir. 2006),
petition for cert. pending, No. 06-10751 (filed Apr.
RATAN AS Pee omy Ake yyy he Pe ee ne 7

IV

Cases—Continued: Page
United States v. Gosling, 39 F.3d 1140 (10th Cir.
eel pepe amare a SS ates Rey eens porn ny a on Ge 5,6
United States v. Jackson, 301 F.3d 59 (2d Cir. 2002),
cert. denied, 539 U.S. 952 (2003) .................. 3,6

United States v. Lancaster, 501 F.3d 673 (6th Cir.
2007), petition for cert. pending, No. 07-7987 (filed

I a che Cian s veka s hin vens «08s 6,7
United States v. Maddox, 388 F.3d 1356 (10th Cir.
2004), cert. denied, 544 U.S. 935 (2005) .............. 7

United States v. Mathias, 482 F.3d 743 (4th Cir.
2007), petition for cert. pending, No. 07-61 (filed

STE Shines st ndekcks sad weser eben aceanas 6,7
United States v. Moudy, 132 F.3d 618 (10th Cir.),

cert. denied, 523 U.S. 1086 (1998) ...............005, 5
United States v. Olano, 507 U.S. 725 (1998) .......... 7,8
United States v. Piccolo, 441 F.3d 1084 (9th Cir.

EE SG Nandi yk ee A i Cie a eOONED NES Kets des 8,9

United States v. Thomas, 361 F.3d 653 (D.C. Cir.
2004), vacated on other grounds, 543 U.S. 1111

ne ee ae eras eae Lea dk ok wk ne es 8
United States v. Thomas, 333 F.3d 280 (D.C. Cir.

SE th iene Mako eet Rai NRA EA Cees Aaa ke ve 8
United States v. Turner, 285 F.3d 909 (10th Cir.),

cert. denied, 537 U.S. 895 (2002) ...... ccc eee 6

Statutes and guidelines:

Armed Career Criminal Act of 1984 ............. passim

NSS kes Uehanke beau Csue ni aeaeue Wes 2

De A OEE cowie nc Wad seree ke cteus sed vuanes 1

V

Statutes and guidelines—Continued: Page

SRE ET Ab AoA wo kh cksedeuedekasneaenues 3,4

18 U.S.C. 924(e)(1) (2000 & Supp. V 2005) ..........-. 2

gi ee” eer frre rrr 4

TE UE. FR ones cacsewnsccencces 2, 4,9

Fla. Stat. Ann. (West) § 944.40 (1998) ................ 2,5
United States Sentencing Guidelines:

trey Pree ner re preety er ee er 8

PEE ERs n bdo vache vaw essen ccuwe ens eta bek anne ees 3

In the Supreme Court of the Ainited States

No. 07-668
JASON DANIEL TAYLOR, PETITIONER
Vv.
UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-11a)
is reported at 489 F.3d 1112.

JURISDICTION

The judgment of the court of appeals was entered on
June 13, 2007. A petition for rehearing was denied on
August 20, 2007. Pet. App. 22a. The petition for a writ
of certiorari was filed on November 16, 2007. The juris-
diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District
Court for the Northern District of Florida, petitioner
was convicted of possession of a firearm by a felon, in
violation of 18 U.S.C. 922(g)(1). The district court sen-
tenced petitioner to 72 months of imprisonment, to be

(1)

2

followed by five years of supervised release. The court
of appeals affirmed. Pet. App. la-13a.

1. The Armed Career Criminal Act (ACCA) imposes
a mandatory minimum term of 15 years of imprisonment
for any person convicted of possession of a firearm by a
felon if that person had “three previous convictions
* * * for a violent felony or a serious drug offense.” 18
U.S.C. 924(e)(1) (2000 & Supp. V 2005). The ACCA de-
fines a “violent felony,” in relevant part, as any crime
“punishable by imprisonment for a term exceeding one
year” that “is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that pres-
ents a serious potential risk of physical injury to an-
other.” 18 U.S.C. 924(e)(2)(B)(ii).

2. On July 24, 2004, petitioner, who had six prior fel-
ony convictions, sold a rifle to a pawn shop in Tallahas-
see, Florida. After the Bureau of Alcohol, Tobacco, and
Firearms investigated the sale, petitioner was charged
with one count of possession of a firearm by a felon, in
violation of 18 U.S.C. 922(g). Petitioner later pleaded
guilty to the count. Presentencing Report paras. 7-13
(PSR); Gov’t C.A. Br. 2-3.

The probation officer recommended in the PSR that
petitioner be sentenced under the ACCA’s 15-year mini-
mum sentence because he had previously been convicted
of three violent felonies (two burglaries and one escape).
PSR paras. 22, 70. At sentencing, petitioner argued that
his escape conviction was not a violent felony.’ The dis-
trict court overruled petitioner’s objection and held that
he was an armed career criminal. After determining

' The escape conviction was for violation of a Florida state law which
prohibits any “prisoner confined in any prison, jail, road camp, or other
penal institution,” from “escap[ing] or attempt[{ing] to escape from such
confinement[.]” Fla. Stat. Ann. § 944.40 (1998).

3

that petitioner’s advisory Sentencing Guidelines range
was 180-210 months of imprisonment, the court imposed
a sentence of 72 months of imprisonment—below the
Guidelines range and the statutory minimum—based on
the government’s motion, pursuant to Sentencing Guide-
lines § 5K1.1, for a reduction in petitioner’s sentence
because of substantial assistance. See 5/25/06 Sent. Tr.
13-14; Gov’t C.A. Br. 2;

3. The court of appeals affirmed. Pet. App. la-1lla.
The court followed its ruling in United States v. Gay,
251 F.3d 950 (11th Cir. 2001), which held that the Geor-
gia offense of escape is a violent felony for the purposes
of determining armed career criminal status under the
Sentencing Guidelines. Pet. App. 2a-3a.

The court of appeals rejected petitioner’s invitation
to distinguish between his “non-violent ‘fail:re to return’
to a halfway house and other types of escapes,” Pet.
App. 4a n.3, explaining that such a distinction was fore-
closed by its decision in Gay, as well as this Court’s
mandate in Taylor v. United States, 495 U.S. 575 (1990),
that courts apply a categorical approach to violent felony
determinations. Pet. App. 4an.3. The court also noted
that the Second Circuit had previously determined in
United States v. Jackson, 301 F.3d 59 (2d Cir. 2002),
that a conviction under the same Florida escape statute
was always a violent felony under Section 924(e). Pet.
App. 4a n.3

Judge Hill wrote a separate concurring opinion,
which Judge Wilson joined. Pet. App. 4a-lla. While
Judge Hill agreed that the court of appeals’ decision in
Gay compelled the decision in this case, he “wish[ed] to
join a tiny, but growing, chorus{] of doubt that a district
court is permitted to enhance a sentence under the
ACCA based in part upon a ‘failure to return’ prior es-

4

cape conviction,” 7d. at 4a-5a, and to “express [his]
agreement with those who reject the rule that escape is
categorically a violent felony,” id. at 10a.

ARGUMENT

Petitioner argues (Pet. 7-12) that escape accom-
plished by a failure to return to confinement is not a
violent felony under the ACCA. That argument lacks
merit and does not warrant this Court’s review.

1. A prior conviction for a “crime punishable by im-
prisonment for a term exceeding one year” qualifies as
a “violent felony” under the ACCA if the offense “in-
volves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. 924(e)(2)(B)(ii).
Section 924(e) generally requires a “categorical ap-
proach” to determining whether or not a prior offense
constitutes a “violent felony” within the meaning of Sec-
tion 924(e)(2)(B). Taylor v. United States, 495 U.S. 575,
600-602 (1990). Under the categorical approach, sen-
tencing courts must “look[] only to the statutory defini-
tions of the prior offenses, and not to the particular facts
underlying th[e] convictions.” Jd. at 600.

The categorical approach does not, however,
“requir[e] that every conceivable factual offense covered
by a statute must necessarily present a serious potential
risk of injury before the offense can be deemed a violent
felony.” James v. United States, 127S. Ct. 1586, 1597
(2007). “Rather, the proper inquiry is whether the con-
duct encompassed by the elements of the offense, in the
ordinary case, presents a serious potential risk of injury
to another.” /bid.

The crime of escape is a violent felony because, in the
ordinary case, it poses a serious potential risk of physi-
cal injury. As the Tenth Circuit has explained:

[Every escape scenario is a powder keg, which may
or may not explode into violence and result in physi-
cal injury to someone at any given time, but which
always has the serious potential to do so. A defen-
dant who escapes from a jail is likely to possess a
variety of supercharged emotions, and in evading
those trying to recapture him, may feel threatened
by police officers, ordinary citizens, or even fellow
escapees. Consequently, violence could erupt at any
time. Indeed, even in a case where a defendant es-
capes from a jail by stealth and injures no one in the
process, there is still a serious potential risk that
injury will result when officers find the defendant
and attempt to place him in custody.

United States v. Moudy, 132 F.3d 618, 620, cert. denied,
523 U.S. 1036 (1998) (quoting United States v. Gosling,
39 F.3d 1140, 1142 (10th Cir. 1994)).

Petitioner errs in asserting (Pet. 11-12) that a fail-
ure-to-report offense, unlike an escape accompanied by
violence, creates no risk of injury in the ordinary case.
As an initial matter, the Florida offense at issue here is
not limited to failures to return to custody. Instead, it
applies whenever “[aJny prisoner confined in any prison,
jail, road camp, or other penal institution, state, county,
or municipal, working upon the public roads, or being
transported to or from a place of confinement * * *
escapes or attempts to escape from such confinement{.|”
Fla. Stat. Ann. § 944.40 (1998). Under the categorical
approach any argument about the nature of the particu-
lar escape at issue here—7.e., that petitioner failed to
return as opposed to escaping directly from a jail
through the use of foree—is not persuasive. See Pet.
App. 4a & n.3 (rejecting petitioner’s argument that the

6

court should “distinguish between his non-violent ‘fail-
ure to return’ to a halfway house and other types of es-
capes”).

In any event, an escape accomplished by a failure to
return to custody presents a “powder keg” situation be-
cause the subsequent recapture of an escapee gives rise
to a serious potential risk of physical injury, even if that
risk does not ripen into actual violence. Gosling, 39 F.3d
at 1142. “Even though initial circumstances of an escape
may be non-violent, there is no way to predict what an
escapee will do when encountered by authorities.”
United States v. Turner, 285 F.3d 909, 916 (10th Cir.),
cert. denied, 537 U.S. 895 (2002). While petitioner con-
tends (Pet. 11-12) that apprehension of any “lawbreak-
er” presents some risk of injury, that risk is heightened
for escapees. “Individuals who find custody intolerable
to the point of escape are unlikely to calmly succumb to
recapture efforts.” United States v. Mathias, 482 F.3d
743, 748 (4th Cir. 2007), petition for cert. pending, No.
07-61 (filed July 12, 2007); see United States v. Jackson,
301 F.3d 59, 63 (2d Cir. 2002) (“| E |scape invites pursuit;
and the pursuit, confrontation, and recapture of the es-
capee entail serious risks of physical injury to law en-
forcement officers and the public.”), cert. denied, 539
U.S. 952 (2003).

2. Petitioner greatly overstates (Pet. 8-10) the ex-
tent to which courts of appeals are divided over the
question whether a felony escape conviction constitutes
a violent felony under the ACCA or a crime of violence
under the Sentencing Guidelines. In fact, every circuit
to have confronted the specific question presented here,
whether a felony escape offense categorically constitutes .
a violent felony under the ACCA, has answered in the
affirmative. See, e.g., United States v. Lancaster, 501

7

F.3d 673, 679-681 (6th Cir. 2007), petition for cert. pend-
ing, No. 07-7987 (filed Nov. 29, 2007); United States v.
Maddox, 388 F.3d 1356, 1368-1369 (10th Cir. 2004) (fail-
ure to return from work-release program), cert. denied,
544 U.S. 935 (2005); United States v. Adams, 442 F.3d
645, 647 (8th Cir. 2006) (“walkaway” escape), cert. de-
nied, 127 S. Ct. 2095 (2007); United States v. Golden, 466
F.3d 612 (7th Cir. 2006) (failure to report to county jail),
petition for cert. pending, No. 06-10751 (filed Apr. 9,
2007); Mathias, 482 F.3d at 748 (““walkaway” from work
release program).

a. Petitioner is mistaken in contending (Pet. 9-10)
that the conflict between this case and the Sixth Cir-
cuit’s decision in United States v. Collier, 493 F.3d 731
(6th Cir. 2007), warrants this Court’s review. In Collier,
the Sixth Circuit drew a narrow exception to its general
rule that a felony escape conviction is a violent felony
under the ACCA for state escape offenses that a State
deems not a continuing offense, but instead complete
upon the defendant’s departure from custody. /d. at
735; see Lancaster, 501 F.3d at 679-680 (stressing that
escape is generally viewed as a continuing offense, and
that only six states “arguably” take a contrary view).
Id. at 680. Because the Florida escape statute, like the
Michigan statute at issue in Collzer, defines the offense
of escape as complete when a defendant leaves custody
without having been discharged, the Eleventh Circuit's
opinion in this case conflicts with the decision in Collier.
This case would be a particularly poor vehicle to address
that question, however, because petitioner did not raise
the issue in the district court or on direct appeal. Ac-
cordingly, reversal would be appropriate only if peti-
tioner could show plain error, which he cannot. See
United States v. Olano, 507 U.S. 725, 734 (1993). Be-

8

cause the courts of appeals have overwhelmingly con-
cluded that felony escape convictions categorically con-
stitute violent felonies within the ambit of § 924(e), any
error could not be “clear” or “obvious.” /bid.

b. Contrary to petitioner’s contention (Pet. 8), the
court of appeals’ decision does not conflict with the
Ninth Circuit's decision in United States v. Piccolo, 441
F.3d 1084 (2006), which concluded that a walkaway es-
cape from a halfway house was not a “crime of violence”
under Sentencing Guidelines § 4B1.2(a)(2).* Piccolo, 441
F.3d at 1088. Significantly, Piccolo interpreted the Sen-
tencing Guidelines, not the ACCA. Because the Sen-
tencing Commission is charged by Congress with “peri-
odically review[ing] the work of the courts” in applying
the (now-advisory) Guidelines and making “whatever
clarifying revisions to the Guidelines conflicting judicial
decisions might suggest,” Braxton v. United States, 500
U.S. 344, 348 (1991), the Ninth Circuit’s Guidelines deci-
sion in Piccolo does not warrant review of the statutory
question presented in this case. See Rita v. United
States, 127 S. Ct. 2456, 2464 (2007) (“The Commission’s
work is ongoing” and includes responding to court deci-
sions.); United States v. Booker, 543 U.S. 220, 263 (2005)
(“The Sentencing Commission will continue to collect
and study appellate court decisionmaking. It will con-

* Additionally, this case does not conflict with any decision from the
D.C. Circuit. The language petitioner cites (Pet. 11-12) from the D.C.
Circuit’s decision in United States v. Thomas, 333 F.3d 280, 282 (2003),
was merely dicta. See id. at 283 (reserving the question whether a
walkaway escape would qualify as a crime of violence under Guidelines
§ 4B1.2). That court later held, albeit in a decision vacated on other
grounds, that such escapes are violent felonies. United States v. Thom-
as, 361 F.3d 653, 658 (D.C. Cir. 2004), vacated on other grounds, 548
U.S. 1111 (2005).

9

tinue to modify its Guidelines in light of what it learns,
thereby encouraging what it finds to be better sentenc-
ing practices.”); see also Kimbrough v. United States,
128 S.Ct. 558, 574 (2007) (“While [Booker] render[ed]
the Sentencing Guidelines advisory * * * “we have
nevertheless preserved a key role for the Sentencing
Commission.”). Although some of Piccolo’s reasoning
may suggest that the Ninth Circuit would hold that
walkaway escapes are not violent felonies for purposes
of the ACCA, to date the Ninth Circuit has not reached
that question.

3. This Court has recently denied petitions for writs
of certiorari presenting virtually the same question as
the petition in this case. See, e.g., Brooks v. United
States, 127 S. Ct. 3003 (2007) (No. 06-9681); Flowers v.
United States, 127 S. Ct. 2935 (2007) (No. 06-9320); Ad-
ams v. United States, 127 S. Ct. 2095 (2007) (No. 06-
6541); Ballard v. United States, 127 S. Ct. 2094 (2007)
(No. 06-5729). The Court should deny this petition as
well.

Alternatively, the Court may wish to hold the peti-
tion pending its decision in Begay v. United States, cert.
granted, No. 06-11543 (Sept. 25, 2007), which presents
the question whether driving while intoxicated is a “vio-
lent felony” under the ACCA. While this case and Be-
gay involve different crimes, they both involve the ques-
tion whether a particular crime “involves conduct that
presents a serious potential risk of physical injury to
another.” 18 U.S.C. 924(e)(2)(B)(Gi). To the extent that
this Court has decided to hold petitions claiming that
escape is a violent felony, e.g., Mathias v. United States,
petition for cert. pending, No. 07-61 (filed July 12, 2007),
the Court should accord similar treatment to this peti-

10

tion by holding it for Begay and then disposing of it as
appropriate in light of the decision in that case.

CONCLUSION

The petition for a writ of certiorari should be denied.
In the alternative, the petition should be held pending
this Court’s disposition of Begay v. United States, No.
06-11543, and then disposed of as appropriate in light of
this Court’s decision in that case.

Respectfully submitted.
PAUL D. CLEMENT
Solicitor General

ALICE S. FISHER
Assistant Attorney General

KEVIN R. GINGRAS
Attorney

JANUARY 2008

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0771%3A2. Public record. Not legal advice.