Opposition Brief — Mathias v. United States (No. 07-61)

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No, 07-61: Sauaee neers

Jn the Supreme Court of the Anited States

LINWOOD CHARLES MATHIAS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

ALICE S. FISHER

Assistant Attorney General

KIRBY A. HELLER

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).

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

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

Ballard v. United States, 127 S. Ct. 2094 (2007) ......... 9

Braxton v. United States, 500 U.S. 344 (1991) .......... S

Brooks v. United States, 127 S. Ct. 3003 (2007) ......... i)

Flowers v. United States, 127 S. Ct. 2935 (2007) ........ 9

James v. United States, 127 S. Ct. 1586 (2007) ........ 4,9

Rita v. United States, 127 S. Ct. 2456 (2007) ............ 8

Taylor v. United States, 495 U.S. 575 (1990) ............ 4

United States v. Adams, 442 F.3d 645 (8th Cir. 2006),

cert. denied, 127 S. Ct. 2095 (2007) ................. 6

United States v. Adkins, 196 F.3d 1112 (10th Cir.

1999), cert. denied, 529 U.S. 1080 (2000) ............. 4

United States v. Booker, 543 U.S. 220 (2005) ........... 8

United States v. 2ryent, 310 F.3d 550 (7th Cir. 2002) .... 7

United States v. Chambers, 473 F.3d 724 (7th Cir.

2007), petition for cert. pending, No. 06-11206

COED hoc dvi nd bs dad ¥ecdawenéscceess 8,9

United States v. Collier, 493 F.3d 731 (6th Cir. 2007) ....6

United States v. Gay, 251 F.3d 950 (11th Cir. 2001) ..... 7

(III)

Cases—Continued: Page

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

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

MeN soos yy haan swede ase cay oisckns 6

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

eh ee on ere era eS | 5, 6

United States v. Harris, 165 F.3d 1062 (6th Cir. 1999) ... 7

United States v. Lancaster, No. 06-5668, 2007 WL

2457448 (6th Cir. Aug. 31, 2007) .................. 6, 7

United States v. Luster, 305 F.3d 199 (3d Cir. 2002),

cert. denied, 538 U.S. 970 (2003) ................08- 7

United States v. Maddox, 388 F.3d 1356 (10th Cir.

2004), cert. denied, 544 U.S. 935 (2005) .............. 6

United States v. Moudy, 132 F.3d 618 (10th Cir.),

cert. denied, 523 U.S. 1036 (1998) ................ 5,9

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

a ER nar Smee aay Ane se ER Dele bees vi.’ 7

United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999) ...... 7

United States v. Taylor, 489 F.3d 1112 (11th Cir.

Scot as eeeeGns cl edd udeeiee Peaeasaen Keates 9

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

RR re OR ir PACES Rare Maes co) on ee 8

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

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

Rapala Ea FS girly a ot pen eat Se 7,8

United States v. Turner, 285 F.3d 909 (10th Cir.),

cert. denied, 537 U.S. 895 (2002) ...............e08. 6

United States v. Winn, 364 F.3d 7 (Ist Cir. 2004) ....... 7

Statutes and guidelines: Page

ee EE Sch cacunas be erave use ene wenenean 1

18 U.S.C. 924(e)(1) (2000 & Supp. V 2005) ............ 2,4

Be A I ions boned skewed cee a wwer anes 4

15 UG, TRON RMRD so ccoverecvecceceacecs 2, 3,4,9

Va. Code Ann. § 18.2-479(B) (LexisNexis 2004) ..... 2.3.5

United States Sentencing Guidelines:

Se Orakei. ns LPR N eee ee Reker 8

PIN ot bac ey RVG cane ce lates ee 7

Jn the Supreme Court of the Anited States

No. 07-61

LINWOOD CHARLES MATHIAS, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-11a)

is reported at 482 F.3d 7438.

JURISDICTION

The judgment of the court of appeals was entered on

April 13, 2007. The petition for a writ of certiorari was

filed on July 12, 2007. The jurisdiction of this Court is

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

STATEMENT

Petitioner pleaded guilty in the United States Dis-

trict Court for the Eastern District of North Carolina to

being a felon in possession of a firearm, in violation of 18

U.S.C. 922(g)(1). He was sentenced to 15 years of im-

prisonment, to be followed by five years of supervised

release. The court of appeals affirmed. Pet. App. la-

lla.

(1)

1. The Armed Career Crimina! Act (ACCA) imposes

a mandatory minimum term of 15 years of imprisonment

on any person convicted of being a felon in possession of

a firearm who had “three previous convictions * * *

for a violent felony or a serious drug offense.” 18 U.S.C.

924(e){1) (2000 & Supp. V 2005). ACCA defines a “vio-

lent 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 presents a serious

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

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

2. Petitioner robbed National Cash Advance, a pay-

day lending service, while brandishing a loaded Glock 9

millimeter semi-automatic pistol. Following a high-

speed chase, police arrested petitioner. Pet. App. 3a-4a.

Petitioner pleaded guilty to possessing a firearm af-

ter having been convicted of a felony. The Presentence

Investigation Report determined that petitioner was

subject to ACCA’s 15-year minimum sentence because

he had previously been convicted of three violent felo-

nies (two burglaries and one escape). Petitioner con-

ceded that the burglaries were violent felonies, but ar-

gued that the escape was not. The escape conviction was

for violation of Va. Code Ann. § 18.2-479(B) (2004),

which prohibits “any person lawfully confined in jail or

lawfully in the custody of any court or officer thereof or

of any law-enforcement officer on a charge or conviction

of a felony,” from “escap[ing], otherwise than by force or

violence or by setting fire to the jail.” See Pet. App. 4a-

5a.

The district court overruled petitioner’s objection

and held that he was an armed career criminal. After

determining that petitioner’s advisory Sentencing

Guidelines range was 188-235 months of imprisonment,

the court imposed a below-Guidelines sentence of 180

months of imprisonment, the statutory minimum. See

Pet. App. 4a; Gov’t C.A. Br. 5-6.

3. The court of appeals affirmed. Pet. App. la-1lla.

It held that the Virginia escape offense “involves con-

duct that presents a serious potential risk of physical

injury to another,” 18 U.S.C. 924(e)(2)(B)(@ii), and is thus

a violent felony, because it prohibits persons from “un-

lawfully and feloniously escap[ing] from confinement.”

Pet. App. 6a. The court noted that “[e]very court of ap-

peals to consider the question has concluded that felony

escape convictions categorically constitute violent felo-

nies within the ambit of § 924(e).” Jd. at 7a.

The court of appeals rejected petitioner’s contention

that the Virginia offense at issue here is not a violent

felony because it applies only to an escape “other than

by force or violence or by setting fire to the jail.” Va.

Code. Ann. § 18.2-479(B) (2004). See Pet. App. 8a-1 La.

The court explained that ACCA looks to whether an of-

fense poses a “risk” of physical injury to another, not

whether it actually has that “result.” /d. at 9a. Escape

presents a serious potential risk of physical injury, the

court explained, because “there is always a chance that

an escape attempt will be interrupted,” which would

“lead[] to an immediate and substantial risk that the

situation will escalate to one involving physical force.”

Ibid. (internal quotation marks and citation omitted).

The court further reasoned that “l|elven if the escape

itself could somehow sidestep any potential risk of in-

jury, the circumstances of recapture necessarily encom-

pass just such a risk.” /b7d. “Individuals who find cus-

tody intolerable to the point of escape are unlikely to

calmly suecumb to recapture efforts.” /bid.

ARGUMENT

Petitioner argues (Pet. 10-19) that escape accom-

plished by a failure to return to confinement is not a

violent felony under 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 ACCA if the offense “involves

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 approach” to

determining whether or not a prior offense consti-

tutes a “violent felony” within the meaning of Section

924(e)(2)(B). Taylor v. United States, 495 U.S. 575, 600-

602 (1990). Under that “categorical approach,” sentenc-

ing courts must “look[| only to the statutory definitions

of the prior offenses, and not to the particular facts un-

derlying thie] convictions.” /bid.

That approach does not, however, “requirje] that

every conceivable factual offense covered by a statute

must necessarily present a serious potential risk of in-

jury before the offense can be deemed a violent felony.”

James v. United States, 127 S. Ct. 1586, 1597 (2007).

“Rather, the proper inquiry is whether the conduct en-

compassed by the elements of the offense, in the ordi-

nary 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:

[E ]very 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 al-

ways has the serious potential to do so. A defendant

who escapes from a jail is likely to possess a variety

of supercharged emotions, and in evading those try-

ing to recapture him, may feel threatened by police

officers, ordinary citizens, or even fellow escapees.

Consequently, violence could erupt at any time. In-

deed, even in a case where a defendant escapes from

a jail by stealth and injures no one in the process,

there is still a serious potential risk that injury will

result when officers find the defendant and attempt

to place him in custody.

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)); see Pet. App. 7a, 9a-

10a.

Petitioner argues (Pet. 18-19) that a failure-to-report

offense, unlike an escape accompanied by violence, cre-

ates no risk of injury in the ordinary case. Petitioner is

incorrect. At the outset, the Virginia offense at issue

here is not limited to failures to return to custody. In-

stead, it applies whenever “any person lawfully confined

in jail or lawfully in the custody of any court or officer

thereof or of any law-enforcement officer on a charge or

conviction of a felony escapes, otherwise than by force or

violence or by setting fire to the jail.” Va. Code. Ann.

§ 18.2-479(B) (2004). Under the categorical approach,

therefore, the nature of the particular escape at issue

here—.e., that petitioner failed to return as opposed to

escaping directly from a jail through the use of force—is

not controlling. See Pet. App. 5a (rejecting petitioner’s

reliance on “the particular circumstances of his escape”).

In any event, an escape accomplished by a failure to

return to custody presents a serious potential risk of

physical injury, even if that risk does not ripen into ac-

tual violence. Escape presents a “powder keg” situation.

Gosling, 39 F.3d at 1142; Pet. App. 9a. “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).

Moreover, even if an escape succeeds and does_not

result in physical injury, the subsequent recapture of

the escapee presents a serious potential risk of physical

injury. While petitioner contends (Pet. 19) that appre-

hension of any felon 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.” Pet. App. 9a.

2. As the court of appeals explained, “[e]very court

of appeals to consider the question has concluded that

felony escape convictions categorically constitute violent

felonies within the ambit of § 924(e).” Pet. App. 7a; see,

e.g., United States v. Maddox, 388 F.3d 1356, 1368-1369

(10th Cir. 2004) (failure 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. denied, 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).

a. The Sixth Circuit recently drew a narrow excep-

tion to that general rule and held that, if a state escape

offense is not considered a continuing offense, but in-

stead is complete upon the defendant’s departure from

custody, it is not a violent felony under ACCA. United

States v. Collier, 493 F.3d 731, 737 (2007); United States

v. Lancaster, No. 06-5668, 2007 WL 2457448, at *5-*6

(Aug. 31, 2007). The Sixth Circuit stressed that escape

is generally viewed as a continuing offense, and that

only six States—not including Virginia—arguably take

a contrary view. /d. at *6. Thus, any nascent conflict on

the treatment of non-continuing escape offenses has

limited scope and is not implicated here.

b. Petitioner relies (Pet. 10-12) on the Ninth Cir-

cuit’s decision in United States v. Piccolo, 441 F.3d 1084

(2006), which concluded that a walkaway escape from a

halfway house was not a “crime of violence” under Sen-

tencing Guidelines § 4B1.2(a)(2). Piccolo, 441 F.3d at

1086-1090. Significantly, however, Piccolo interprets

the Sentencing Guidelines, not ACCA. Although some

of Piccolo’s reasoning appears to signal that the Ninth

Circuit would hold that walkaway escapes are not violent

felonies for purposes of ACCA, to date the Ninth Circuit

has not reached that question.’

Because the Sentencing Commission is charged by

Congress with “periodically reviewling]| the work of the

' As the court of appeals noted (Pet. App. 8a n.2), the Ninth Circuit's

interpretation of the Sentencing Guidelines conflicts with the decisions

of every other court of appeals to consider the Guidelines question.

See, e.g., United States v. Winn, 364 F.3d 7, 12 (1st Cir. 2004); United

States v. Thomas, 361 F.3d 653, 657-660 (D.C. Cir. 2004), vacated on

other grounds, 543 U.S. 1111 (2005); United States v. Bryant, 310 F.3d

550, 554 (7th Cir. 2002); United States v. Luster, 305 F.3d 199, 202 (3d

Cir. 2002), cert. denied, 538 U.S. 970 (2003); United States v. Gay, 251

F.3d 950, 954-955 (11th Cir. 2001) (per curiam); United States v. Ruiz,

180 F.3d 675, 676-677 (Sth Cir. 1999); l/nited States v. Harris, 165 F.3d

1062, 1068 (6th Cir. 1999). The court of appeals did not, as petitioner

contends (Pet. 10), “not{e] that its holding conflicts with” Piccolo. To

the contrary, the court emphasized that the courts of appeals are in

agreement on the ACCA question presented here. Pet. App. 7a. The

court then observed in a footnote that the Ninth Circuit disagreed with

other cireits on the interpretation of the Guidelines, which are not at

issue herve. ew id. at 8a n.2.

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 Cir-

cuit’s Guidelines decision 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 re-

sponding to court decisions.); United States v. Booker,

543 U.S. 220, 263 (2005) (“The Sentencing Commission

will continue to collect and study appellate court de-

cisionmaking. It will continue to modify its Guidelines

in light of what it learns, thereby encouraging what it

finds to be better sentencing practices.”).

c. Petitioner’s reliance (Pet. 12-16) on statements in

other opinions is misplaced. United States v. Thomas,

333 F.3d 280, 282-283 (D.C. Cir. 2003), does not support

petitioner’s position. In that case, the D.C. Circuit sim-

ply reserved 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 va-

cated on other grounds, that such escapes are violent

felonies. United States v. Thomas, 361 F.3d 653, 658

(2004), vacated on other grounds, 543 U.S. 1111 (2005).

Those decisions are distinguishable because they inter-

pret the Guidelines, but they are fully consistent with

the decision below in any event.

Petitioner misquotes (Pet. 14) United States v.

Chambers, 473 F.3d 724 (7th Cir. 2007), petition for cert.

pending, No. 06-11206 (filed May 8, 2007), for the propo-

sition that holding an escape like petitioner’s to be a

violent felony is an “embarrassment to the law.” In-

stead, the Seventh Circuit—which held that all escapes

are violent felonies—considered it embarrassing to have

to speculate about the risk of physical injury from vari-

ous types of escapes, as opposed to relying on statistics.

473 F.3d at 726-727. While statistics may be helpful,

they are not required. See James, 127 S. Ct. at 1598.

And when statistics are not available, courts must neces-

sarily rely on.the types of considerations discussed

above.”

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. 06-9220);

Adams 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 peti-

tion 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 ACCA. While this case and Begay

involve different crimes, they both involve the question

whether a particular crime “involves conduct that pres-

ents a serious potential risk of physical injury to an-

other.” 18 U.S.C. 924(e)(2)(B)(ii). Thus, this Court may

wish to hold this petition for Begay, or may conclude

* Petitioner relies (Pet. 12-13) on concurring opinions in United

States v. Adkins, 196 F.3d 1112 (10th Cir. 1999), cert. denied, 529 U.S.

1030 (2000), and United States v. Taylor, 489 F.3d 1112 (11th Cir. 2007).

But those decisions affirmed ACCA-enhanced sentences based in part

on prior escape convictions, and those circuits have also held that es-

cape convictions of all types are violent felonies under ACCA. See, e.g..

Moudy, supra; Taylor, 489 F.3d at 1114 & n.3.

that the differences between the cases make it unneces-

sary to do so.

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.