United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2277
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
James Gene Furqueron, *
*
Appellant. *
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Submitted: March 12, 2010
Filed: May 24, 2010
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Before RILEY, Chief Judge,1 BRIGHT and WOLLMAN, Circuit Judges.
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WOLLMAN, Circuit Judge.
James Gene Furqueron pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district court
determined that Furqueron was subject to an enhanced sentence under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), and the related section of the
United States Sentencing Guidelines (USSG), § 4B1.4, after finding that he had three
prior convictions for violent felonies. Furqueron appeals from his sentence,
contending that his convictions for fleeing a peace officer in a motor vehicle, in
1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
violation of Minnesota Statutes § 609.487 subdivision 3 (2006), and escape from
custody, in violation of Minnesota Statutes § 609.485 subdivisions 2(1) and 4(1)
(1988), do not constitute violent felonies. We reverse and remand.
I.
Furqueron’s presentence investigation report listed a litany of prior convictions,
including three it identified as violent felonies under the ACCA: fleeing a peace
officer in a motor vehicle, escape from custody, and second-degree attempted
homicide. The report determined that Furqueron was subject to the ACCA’s fifteen-
year mandatory minimum sentence. The report calculated Furqueron’s base offense
level and criminal history category under the USSG’s armed career criminal section,
§ 4B1.4, and concluded that the sentencing range was 180 to 188 months’
imprisonment. Furqueron objected to the report’s determination that he had three
predicate offenses under the ACCA, conceding only that the second-degree attempted
homicide conviction was a violent felony.
The district court adopted the presentence investigation report’s findings, ruled
that Furqueron was subject to the ACCA’s enhanced sentence because his convictions
for fleeing and escape constituted violent felonies, and sentenced Furqueron to fifteen
years’ imprisonment.
II.
The ACCA mandates a minimum fifteen-year term of imprisonment for a
defendant who has been convicted of being a felon in possession of a firearm and who
previously has been convicted of three violent felonies. 18 U.S.C. § 924 (e)(1). We
recently held that the crime of fleeing a peace officer in a motor vehicle, in violation
of Minnesota Statutes § 609.487 subdivision 3, does not constitute a crime of violence
under the sentencing guidelines. United States v. Tyler, 580 F.3d 722, 726 (8th Cir.
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2009). We recognize the term “violent felony” under the ACCA as synonymous with
the term “crime of violence” under § 4B1.2. United States v. Williams, 537 F.3d 969,
971 (8th Cir. 2008) (noting that the relevant definitions of the two terms are “virtually
identical”). Furqueron’s conviction for fleeing a peace officer in a motor vehicle thus
cannot serve as a basis for a sentence under the ACCA or USSG § 4B1.4.
This holding removes Furqueron from the armed career criminal classification
because he has been convicted of at most two violent felonies. Whether Furqueron’s
escape conviction is a violent felony, or in sentencing guidelines parlance, a crime of
violence, remains justiciable. See United States v. Clinkscale, 559 F.3d 815, 817 (8th
Cir. 2009) (concluding that the defendant was not an armed career criminal because
his motor vehicle theft conviction was not a violent felony and deciding the issue
whether his terroristic threats conviction constituted a crime of violence). If
Furqueron’s felony escape conviction is a crime of violence, he is subject to a higher
base offense level on remand than if he has only one predicate conviction.2 The same
analysis applies to determine whether a conviction constitutes a violent felony under
the ACCA as applies to determine whether it is a crime of violence under the USSG,
see Williams, 537 F.3d at 971, and the parties have fully briefed the issue whether
Furqueron’s escape conviction constitutes a violent felony. We thus reach the merits
of Furqueron’s argument.
2
Section 2K2.1(a)(2) assigns a base offense level of twenty-four to a defendant
who committed the charged offense “subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled substance offense.” Section
2K2.1(a)(4) assigns a base offense level of twenty to a defendant with only one
previous felony conviction for a crime of violence.
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III.
Section 4B1.2(a) of the USSG defines a crime of violence as any offense
punishable by imprisonment for a term exceeding one year, that “(1) has as an element
the use, attempted use, or threatened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another.” To determine whether a defendant’s prior conviction falls
within the “otherwise” clause, “we must consider whether it poses a similar degree of
risk of physical injury and whether it typically involves conduct that is similarly
purposeful, violent and aggressive when compared to the conduct involved in its
closest analogue among the example crimes.” United States v. Gordon, 557 F.3d 623,
625 (8th Cir. 2009) (emphasis omitted) (citing Begay v. United States, 553 U.S. 137
(2008)).
In conducting the analysis, we apply a categorical approach, looking to the
elements of the offense to determine whether the conviction constitutes a crime of
violence. Id. If the statute is overinclusive, covering offenses that would constitute
crimes of violence, as well as offenses that would not, we apply a modified categorical
approach, which allows a court to “refer to the charging document, the terms of a plea
agreement, jury instructions, or comparable judicial records to determine” whether the
prior conviction is a crime of violence. United States v. Pearson, 553 F.3d 1183, 1186
(8th Cir. 2009).
Furqueron was convicted of escape from custody, in violation of Minnesota
Statutes 609.485 subdivision 2(1) (1988), which prohibits “[e]scapes while held in
lawful custody on a charge or conviction of a crime.” He was sentenced under
subdivision 4(1), which provides a term of imprisonment of not more than five years
and a fine of not more than $10,000 “[i]f the person who escapes is in lawful custody
on a charge or conviction of a felony.” The statute defines “escape” as including
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“departure without lawful authority and failure to return to custody following
temporary leave granted for a specific purpose or limited period.” Id. subd. 1. The
Minnesota statute thus criminalizes conduct ranging from a jail break to failing to
return to custody after furlough.
In Chambers v. United States, 129 S. Ct. 687 (2009), the Supreme Court held
that a conviction for failure to report to a penal institution was not a violent felony
under the ACCA. We have recognized that Chambers “overrule[d] our precedent that
all escape offenses are crimes of violence, including failures to return or report to
custody” but “[left] intact our precedent holding that escape from penal custody is a
crime of violence.” United States v. Hudson, 577 F.3d 883, 886 (8th Cir. 2009); see
Pearson, 553 F.3d at 1186 (remanding for a determination of whether the escape
conviction “was a career-offender-qualifying escape from custody or a non-qualifying
failure to return or report to custody”). The Minnesota escape statute criminalizes
multiple offenses, including escapes that no longer constitute crimes of violence. E.g.,
State v. Beito, 332 N.W.2d 645, 648 (Minn. 1983) (failure to return from work
release); Headbird v. State, 375 N.W.2d 90, 92 (Minn. Ct. App. 1985) (failure to
report to halfway house after treatment program while on furlough); State v. L’Italien,
363 N.W.2d 490, 492 (Minn. Ct. App. 1985) (failure to return from furlough).
Accordingly, the statute is overinclusive, and Furqueron’s conviction is subject to
analysis under the modified categorical approach.
Although the charging document is not in the record, Furqueron does not
challenge the summary thereof set forth in the presentence investigation report:
Furqueron escaped from a county jail by exiting a security door that was ajar and that
should have been closed. See United States v. Clark, 563 F.3d 771, 773 (8th Cir.
2009) (concluding that the district court properly relied on undisputed facts in the
presentence investigation report in applying the modified categorical approach).
Furqueron thus escaped from the secure custody of a penal institution, an offense that
remains a crime of violence after Chambers.
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Furqueron contends that his escape was a “walkaway” escape and as such does
not constitute a crime of violence. See United States v. Lee, 586 F.3d 859, 874 (11th
Cir. 2009) (holding that a nonviolent walkaway escape from halfway house does not
constitute a violent felony); United States v. Ford, 560 F.3d 420, 425-26 (6th Cir.
2009) (holding that leaving custody in a non-secured setting by walking away is not
a crime of violence); United States v. Templeton, 543 F.3d 378, 382-83 (7th Cir.
2008) (noting that a “prisoner’s walkaway from a halfway house or a camp that lacks
fences” is a form of escape and holding that a walkaway is not a crime of violence).
See generally United States v. Jackson, 594 F.3d 1027, 1029-30 n.2 (8th Cir. 2010)
(recognizing that the Eighth Circuit has not yet determined whether a walkaway
escape qualifies as a crime of violence in light of Chambers and Begay). Furqueron’s
offense, however, was not a walkaway escape from a halfway house or some other
non-secured setting. Rather, he escaped from a county jail by taking advantage of a
security breach.
Furqueron’s escape conviction is roughly similar to burglary, posing a similar
degree of risk of physical injury and involving purposeful, aggressive conduct. Like
burglary, escape from a secured setting is “a stealth crime that is likely to cause an
eruption of violence if and when it is detected.” United States v. Pratt, 568 F.3d 11,
22 (1st Cir. 2009). “The 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 confrontation between the burglar and a third party.” James v. United
States, 550 U.S. 192, 203 (2007) (holding that attempted burglary under Florida law
is a violent felony). Similarly, the main risk of escape from a penal institution arises
not from leaving custody, but from the possibility of being discovered in the act of
escaping. Furqueron’s escape conviction also involved the “more aggressive
behavior” of escape from custody, not the passive behavior involved in failing to
report. Chambers, 129 S. Ct. at 691 (“The behavior that likely underlies a failure to
report would seem less likely to involve a risk of physical harm than the less passive,
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more aggressive behavior underlying an escape from custody.”); see also Pratt, 568
F.3d at 22 (holding that the defendant’s escape from a county jail “by crawling under
a fence and leaving the area” constituted a violent felony within the meaning of the
ACCA). Applying the modified categorical approach, we hold that Furqueron’s
conviction for escape from a penal institution, in violation of Minnesota Statutes
609.485 subdivisions 2(1) and 4(1) (1988), constitutes a crime of violence for
purposes of the sentencing guidelines.
Conclusion
Furqueron’s sentence is vacated and the case is remanded to the district court
for resentencing.
RILEY, Chief Judge, concurring.
I concur because United States v. Tyler, 580 F.3d 722, 726 (8th Cir. 2009) and
our prior precedent rule compel reversal. See Drake v. Scott, 812 F.2d 395, 400 (8th
Cir. 1987) (“One panel of this Court is not at liberty to disregard a precedent handed
down by another panel.”).
In my view, Tyler was wrongly decided because fleeing a peace officer in a
motor vehicle, Minn. Stat. § 609.487(3), involves the purposeful, violent, and
aggressive conduct discussed in Begay v. United States, 553 U.S. 137, 144-45 (2008)
(contrasting crimes involving purposeful, violent, and aggressive conduct from crimes
such as drunk driving, which are more comparable to “crimes that impose strict
liability, criminalizing conduct in respect to which the offender need not have any
criminal intent at all”) and Chambers v. United States, 555 U.S. ___, ___, 129 S. Ct.
687, 692 (2009) (addressing passive crimes such as failing to report or return to law
enforcement custody and saying, “While an offender who fails to report must of
course be doing something at the relevant time, there is no reason to believe that the
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something poses a serious potential risk of physical injury.”). Fleeing a peace officer
in a motor vehicle shadows the “more aggressive behavior” of escape from custody.
See Chambers, 129 S. Ct. at 691 (“The behavior that likely underlies a failure to report
would seem less likely to involve a risk of physical harm than the less passive, more
aggressive behavior underlying an escape from custody.”). Before Tyler, we
implicitly recognized the purposeful, violent, and aggressive nature of fleeing a peace
officer in a motor vehicle. See, e.g., United States v. Kendrick, 423 F.3d 803, 809
(8th Cir. 2005) (“[U]nder the stress and urgency which will naturally attend his
situation, a person fleeing law enforcement will likely drive recklessly and turn any
pursuit into a high-speed chase with the potential for serious harm to police or
innocent bystanders.”) (internal marks omitted). That is why nearly every circuit
court of appeals to consider similarly worded statutes disagrees with Tyler. See
United States v. Dismuke, 593 F.3d 582, 588-97 & nn.3 & 7 (7th Cir. 2010) (holding
Wisconsin’s vehicular-fleeing offense, Wis. Stat. § 346.04(3), qualified as a violent
felony after collecting cases from the Fifth, Sixth, Seventh, Tenth, and Eleventh
Circuits, and declaring “our conclusion here . . . actually parts company with just one
circuit, the Eighth, in Tyler, 580 F.3d at 726”). Cf. United States v. Harrison, 558
F.3d 1280, 1290-1301 (11th Cir. 2009) (finding Florida’s willful fleeing statute is not
a violent felony based upon the specific facts of the case).
The en banc court may wish to bring our precedent back in line with the
Supreme Court and our sister circuits. See, e.g., Owens v. Miller (In re Miller), 276
F.3d 424, 428-29 (8th Cir. 2002) (“‘As an appellate court, we strive to maintain
uniformity in the law among the circuits, wherever reasoned analysis will allow, thus
avoiding unnecessary burdens on the Supreme Court docket.’” (quoting United States
v. Auginash, 266 F.3d 781, 784 (8th Cir. 2001))).
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BRIGHT, Circuit Judge, concurring.
I concur in the fine opinion of Judge Wollman, and I disagree with my
respected colleague Chief Judge Riley that this court wrongly decided Tyler.
I recognize that we generally do not look at the specific facts of a prior
conviction when deciding whether it qualifies as a crime of violence. See Tyler, 580
F.3d at 725. But I write separately to express that when sentencing Furqueron on
remand, the district court may consider under 18 U.S.C. § 3553(a) whether
Furqueron’s escape from a county jail posed an actual threat of violence to anyone.
The judge may sentence the offender below the guidelines, taking the § 3553(a)
factors into account and exercising informed discretion.
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