RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0106p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-5091
v.
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Defendant-Appellant. -
JEFFREY LYNDALE FORD,
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Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 07-00113-001—Joseph M. Hood, District Judge.
Submitted: January 14, 2009
Decided and Filed: March 18, 2009
Before: MERRITT, COLE and SUTTON, Circuit Judges.
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COUNSEL
ON BRIEF: Andrew Martin Stephens, ANDREW M. STEPHENS & ASSOCIATES,
Lexington, Kentucky, for Appellant. Charles P. Wisdom, Jr., Robert M. Duncan, Jr.,
ASSISTANT UNITED STATES ATTORNEYS, Lexington, Kentucky, for Appellee.
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OPINION
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SUTTON, Circuit Judge. Jeffrey Ford challenges his sentence for bank robbery,
arguing that the district court improperly sentenced him as a career offender under
§ 4B1.1(a) of the sentencing guidelines. Because his previous conviction for a “walkaway”
escape is not a “crime of violence” under this provision of the guidelines, we reverse and
remand for resentencing.
1
No. 08-5091 United States v. Ford Page 2
I.
In 2007, Ford pleaded guilty to bank robbery. See 18 U.S.C. § 2113(a). The district
court calculated an advisory guidelines range of 151 to 188 months, see U.S.S.G. ch. 5, pt.
A, and sentenced Ford to 151 months. His offense level included a 10-point career-offender
enhancement based on his present bank-robbery conviction and prior state-law convictions
for robbery and second-degree escape. See id. § 4B1.1(a).
II.
Ford’s appeal presents one issue: Does his prior conviction for escape constitute a
“crime of violence”?
Some of this ground is well-plowed. A defendant is a career offender, as pertinent
here, if he was at least 18 when he committed the offense, the offense is a felony “crime of
violence” and he has been convicted of at least two prior felony “crime[s] of violence.” Id.
§ 4B1.1(a). A “crime of violence” is an offense that warrants at least a year in prison and
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.” Id. § 4B1.2(a).
Acknowledging that his robbery convictions—his present one and his earlier
one—amount to crimes of violence, Ford argues that his second-degree-escape conviction
does not. That type of conviction, everyone agrees, does not contain a use-of-force element,
and it is not a burglary-of-a-dwelling, arson, extortion or use-of-explosives offense. That
leaves the possibility that the offense “otherwise involves conduct that presents a serious
potential risk of physical injury to another.” Id. Two inquiries guide our application of the
residual clause. One, does the crime present a serious potential risk of violence akin to the
listed crimes? See James v. United States, 550 U.S. 192, 127 S. Ct. 1586, 1594–98 (2007).
Two, does the crime involve the same kind of “purposeful, violent, and aggressive conduct”
as the listed crimes? Begay v. United States, __U.S.__, 128 S. Ct. 1581, 1586 (2008); see
also Chambers v. United States, __U.S.__, 129 S. Ct. 687, 692 (2009). That an offense
presents a risk of physical injury to others, as Begay demonstrates, does not by itself suffice
No. 08-5091 United States v. Ford Page 3
to show that it is a crime of violence. Otherwise, drunk driving would be a crime of
violence, and Begay makes clear that it is not. Begay, 128 S. Ct. at 1583; see United States
v. Templeton, 543 F.3d 378, 383 (7th Cir. 2008).
In answering these questions, we treat a “crime of violence” under § 4B1.1(a) of the
guidelines the same as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(1); see United States v. Houston, 187 F.3d 593, 594–95 (6th Cir. 1999), because
both laws share essentially the same definitions (if not the same titles), compare U.S.S.G.
§ 4B2.1(a) with 18 U.S.C. § 924(e)(2)(B). And in determining the nature of a defendant’s
prior conviction, we apply a “categorical” approach, meaning that we look at the statutory
definition of the crime of conviction, not the facts underlying that conviction, to determine
the nature of the crime. Taylor v. United States, 495 U.S. 575, 602 (1990). Save, that is, in
one instance: If it is possible to violate a criminal law in a way that amounts to a crime of
violence and in a way that does not, we may look at the indictment, guilty plea and similar
documents to see if they “necessarily” establish the nature of the prior offense. Shepard v.
United States, 544 U.S. 13, 26 (2005).
Kentucky criminalizes several types of “escape.” Ford was spared the first
one—first-degree escape—which covers “escapes from custody or a detention facility by the
use of force or threat of force against another person.” Ky. Rev. Stat. § 520.020(1). Yet he
was convicted of second-degree escape, a broadly worded offense that covers any other
“escape[] from a detention facility” or “escape[] from custody” by an individual “charged
with or convicted of a felony.” Id. § 520.030(1). To violate this provision, one need only
leave “when the departure is unpermitted” or fail to return “following a temporary leave
granted for a specific purpose or for a limited period.” Id. § 520.010(5). A “detention
facility” includes “any building . . . used for the confinement of a person: (a) Charged with
or convicted of an offense; (b) Alleged or found to be delinquent; (c) Held for extradition
or as a material witness; or (d) Otherwise confined pursuant to an order of court.” Id.
§ 520.010(4). And “custody” includes any “restraint by a public servant pursuant to a lawful
arrest, detention, or an order of court for law enforcement purposes,” excluding only
“supervision of probation or parole or constraint incidental to release on bail.” Id.
§ 520.010(2). (Kentucky also has a third-degree offense not relevant here, which applies to
No. 08-5091 United States v. Ford Page 4
individuals, regardless of their charged or convicted offenses, who “escape[] from custody.”
Id. § 520.040.)
All said, a conviction for second-degree escape covers everything from a felon who
breaks out of a maximum-security prison to one who fails to report to a halfway house. The
crime at hand—a “walkaway” escape, U.S. Letter Br., Feb. 10, 2009, at 2—falls somewhere
in between.
Under Sixth Circuit law at the time of Ford’s sentencing, as the district court
correctly recognized, a “walkaway” escape constituted a crime of violence. In United States
v. Bailey, 510 F.3d 562, 566 (6th Cir. 2007), we held that second-degree escape under
Kentucky law is a crime of violence, and we did so in the context of a defendant who
claimed merely to have “walk[ed] away from a halfway house.” 510 F.3d at 565 (internal
quotation marks omitted).
Since then, however, the Supreme Court decided Chambers, which held that one type
of escape conviction under Illinois law—a “failure to report for penal confinement”—is not
a “violent felony” under the Armed Career Criminal Act. 129 S. Ct. at 689; see 18 U.S.C.
§ 924(e); 720 Ill. Comp. Stat. 5/31-6(a). Illinois criminalized (1) escape from a penal
institution, (2) escape from the custody of an employee of a penal institution, (3) failure to
report to a penal institution, (4) failure to report for periodic imprisonment, (5) failure to
return from furlough, (6) failure to return from work and day release and (7) failure to adhere
to the conditions of home confinement. 720 Ill. Comp. Stat. 5/31-6(a). The Court construed
the Illinois law as encompassing at least two distinct categories of crimes—escape (1 and 2)
and failure to report (3 through 6)—and possibly a third—failing to abide by home-
confinement conditions (7). Chambers, 129 S. Ct. at 691. “[S]upport[ing] the intuitive
belief that failure to report does not involve a serious risk of physical injury,” the court
reasoned, is the absence of empirical evidence showing that failure-to-report offenses lead
to physical injury. Id. at 692. Nor, the Court added, is the offense similar in kind to the
listed crimes of violence, as it is “a far cry from the purposeful, violent, and aggressive
conduct potentially at issue when an offender uses explosives against property, commits
arson, burgles a dwelling or residence, or engages in certain forms of extortion.” Id.
(internal quotation marks omitted).
No. 08-5091 United States v. Ford Page 5
Chambers modifies circuit law. Until now, we have taken the view that all escape
offenses—from a failure to report at one end of the spectrum to a breakout at the
other—constitute crimes of violence. See Bailey, 510 F.3d at 566; United States v. Esteppe,
483 F.3d 447, 451 (6th Cir. 2007); United States v. Harris, 165 F.3d 1062, 1067–68 (6th Cir.
1999); United States v. Anglin, 169 F. App’x 971, 975 (6th Cir. 2006); United States v.
Jackson, 63 F. App’x 839, 843 (6th Cir. 2003); United States v. Roberts, 59 F. App’x 86,
88–89 (6th Cir. 2003); United States v. Rodgers, No. 99-7776, 2000 WL 1434706, *4–5 (6th
Cir. Sept. 19, 2000); see also United States v. Goodman, 519 F.3d 310, 317–18 (6th Cir.
2008); United States v. Lancaster, 501 F.3d 673, 678 (6th Cir. 2007); Houston, 187 F.3d at
594–95. After Chambers, it is not that clear-cut. Chambers establishes that at least one type
of escape offense—a failure to report—is not a crime of violence. And that conclusion
requires us to modify our prior decisions suggesting that all manner of escape convictions
under Kentucky law (or for that matter other States’ laws), including failures to report,
constitute crimes of violence.
Chambers, it seems to us, also undermines the notion that a “walkaway” conviction
is a crime of violence. In the context of the Illinois law at issue, it is true, Chambers
appeared to divide escape convictions into just “two separate crimes, namely escape from
custody on the one hand, and a failure to report on the other.” 129 S. Ct. at 691. A first
reading of the case thus might suggest that, in the world of state-law escape offenses, the
federal courts have just these two options to work with—leaving custody or failing to report
to custody—and as between the two, it is safe to say that Ford’s offense would be a departure
from custody and thus would be a crime of violence. But in Chambers itself, the Court said
there were “at least two” ways to divide up the offense, id.—perhaps because Illinois law
contained another distinct offense (failure to comply with home-confinement conditions),
id., or perhaps because the Court appreciated that there may be other ways to characterize
escapes as a matter of federal law.
If under Illinois law there were “at least two” ways to characterize an escape
conviction in Chambers, there are at least three ways to characterize an escape conviction
under Kentucky law. In addition to proscribing general departures from custody and general
failures to return, Kentucky law separately criminalizes escapes involving “the use of force
or threat of force against another person,” and Kentucky law separately treats the offense as
No. 08-5091 United States v. Ford Page 6
a first-degree offense. Ky. Rev. Stat. § 520.020(1); see Chambers, 129 S. Ct. at 691 (“[T]he
statute itself not only lists escape and failure to report separately (in its title and its body) but
also places the behaviors in two different felony classes (Class Two and Class Three) of
different degrees of seriousness.”) (citation omitted). Given this distinction under Kentucky
law, and given that the sentencing guidelines and ACCA themselves distinguish between
crimes involving “force” as an element of the offense, see U.S.S.G. § 4B1.2(a)(1); 18 U.S.C.
§ 924(e)(2)(B)(i), and those that do not, see U.S.S.G. § 4B1.2(a)(2); 18 U.S.C.
§ 924(e)(2)(B)(ii), it is difficult to maintain that Kentucky escapes should be divided only
by two. But even if we may safely add a third category of the offense (“force[ful]” escapes),
is it appropriate to add a fourth? May we divide Kentucky law into at least four categories
of escape: leaving custody with the use or threat of force; leaving custody in a secured
setting; leaving custody in a non-secured setting by “walking away”; or failure to report?
We think so. First, it is not lost on us that the categorical approach requires courts
to pick the right label, and “sometimes the choice is not obvious.” Chambers, 129 S. Ct. at
690. Nor is it lost on us that the distinction frequently makes all the difference. Think of the
risk-of-physical-injury inquiry from the perspective of a definition of escape that picks up
all departures from custody on the one hand and a definition that picks up just walkaway
offenses on the other. The former category will contain a higher risk of physical injury and
therefore seem more like the prototypical crime of violence than the latter category by itself.
If we include walkaway escapes in the general category, they likely will be treated as crimes
of violence; if not, they likely will not be. In this respect, the level of generality is destiny,
requiring us to be careful that the lines we draw are meaningful ones.
Second, in the aftermath of Chambers, a “walkaway” is a meaningfully distinct and
meaningfully distinguishable category of escape as a matter of federal law. No doubt
Kentucky’s broadly worded definition of second-degree escape does not separate walkaways
from other escapes. But neither does it separate failures to report from departures from
custody. If Chambers permits the federal courts to treat failures to report as separate
offenses under Illinois law, it would seem to permit them under Kentucky law, whether the
state statute separately describes them or not, because the end-game question is whether the
offense is a “crime of violence,” U.S.S.G. § 4B1.2(a), which is a matter of federal, not state,
law. Much as failures to report to custody represent a distinct form of escape, moreover, so
No. 08-5091 United States v. Ford Page 7
do walkaways. There is a difference between individuals who overcome physical barriers
to freedom and those who walk off the grounds—those in other words who leave a facility
without removing a physical restraint, without breaking a lock on a door, without climbing
over a prison wall or security fence or without otherwise breaking through any other form
of security designed to keep them put. See Templeton, 543 F.3d at 382–83; see also United
States v. Piccolo, 441 F.3d 1084, 1088–89 (9th Cir. 2006). An unauthorized departure from
a halfway house comes to mind, as does an unauthorized departure from an unsecured
facility.
Third, a walkaway escape does not present the risk of physical injury to others that
the listed crimes of violence do. No one in this case has offered any empirical evidence
suggesting that walkaway escapes, in contrast to traditional escapes, are apt to lead to serious
risks of physical injury. And the one court to our knowledge to look into the issue, the
Seventh Circuit, found that they have no such risk. Templeton, 543 F.3d at 382 (noting that,
according to a recent study, “8% of escapees commit violence against guards in the process
of getting away, and that at least 6% of escapees commit violent crimes such as murder or
robbery against civilians while on the lam. By contrast, walkaways produced no deaths or
injuries.”) As with failure-to-report offenses, not just an “intuitive belief,” but hard data as
well, suggest that this is not a prototypical crime of violence. Chambers, 129 S. Ct. at 692.
A walkaway escapee, like “an individual who fails to report,” also “would seem
unlikely . . . to call attention to his whereabouts by simultaneously engaging in additional
violent and unlawful conduct.” Id. “The question is whether such an offender is
significantly more likely than others to attack, or physically to resist, an apprehender,
thereby producing a ‘serious potential risk of physical injury.’” Id. (quoting
§ 924(e)(2)(B)(ii)). Nothing suggests that is the case with walkaway offenses.
Fourth, walkaway offenses do not involve the same type of “purposeful, violent, and
aggressive” conduct that the listed crimes of violence do. Id. (internal quotation marks
omitted). No doubt, all walkaway offenders have engaged in purposeful conduct. After that,
however, there is nothing in the statute that requires the offense to involve purposeful
violence or purposeful aggressiveness. All that the Kentucky statute requires is a
“departure” that is “unpermitted,” Ky. Rev. Stat. § 520.010(5), and it defines the “detention
facility” from which the departure occurs as “any building . . . used for the confinement of
No. 08-5091 United States v. Ford Page 8
a person,” id. § 520.010(4). A walkaway does “not involve ‘aggressive’ conduct against
either a person (as in extortion) or property (arson). All the [law] requires is that the escapee
leave.” Templeton, 543 F.3d at 383 (internal quotation mark omitted). The “otherwise”
requirement demands not just that the offense involve a similar risk of injury but also that
it involve a similar type of crime. The “listed examples—burglary, arson, extortion, or
crimes involving the use of explosive—illustrate the kinds of crimes that fall within the
statute’s scope. Their presence indicates that the statute covers only similar crimes, rather
than every crime that ‘presents a serious potential risk of physical injury to another.’”
Begay, 128 S. Ct. at 1584–85 (quoting 18 U.S.C. § 924(e))(2)(B)(iii)). If driving under the
influence (Begay) and a failure to report or return to prison (Chambers) are not sufficiently
“purposeful, violent, and aggressive” to satisfy this requirement, neither is a walkaway
offense.
Fifth, if any doubt remains about this conclusion, the rule of lenity alleviates it.
When ambiguity clouds the meaning of a criminal statute, “the tie must to go the defendant.”
United States v. Santos, __U.S.__, 128 S. Ct. 2020, 2025 (2008) (plurality); see United
States v. Bass, 404 U.S. 336, 347–49 (1971). As Justice Scalia recently explained, the rule
rightly “places the weight of inertia upon the party”—the government—“that can best induce
Congress to speak more clearly,” it prevents the courts from having to “play the part of a
mind reader” and it is a “venerable” requirement that the federal courts have applied for
roughly two centuries:
In our seminal rule-of-lenity decision, Chief Justice Marshall rejected the
impulse to speculate regarding a dubious congressional intent.
“[P]robability is not a guide which a court, in construing a penal statute, can
safely take.” United States v. Wilberger, 5 Wheat. 76, 105 (1820). And
Justice Frankfurter, writing for the Court in another case, said the following:
“When Congress leaves to the Judiciary the task of imputing to Congress an
undeclared will, the ambiguity should be resolved in favor of lenity.” Bell
v. United States, 349 U.S. 81, 83 (1955).
Santos, 128 S. Ct. at 2025–26. A walkaway escape is not unambiguously a crime of
violence.
* * *
No. 08-5091 United States v. Ford Page 9
To recap: the first question in this case—the Taylor question—is whether the
definition of the state-law offense by itself establishes that it is a “crime of violence.” A
conviction for second-degree escape does not show that Ford committed a crime of violence
because the offense covers a variety of escapes, some of which (a failure to report and to
return, at least) are not crimes of violence. The second question—the Shepard question—is
whether the government nonetheless can show that the state-law conviction was a crime of
violence by bringing forward reliable documents from the underlying conviction that
“necessarily” establish that the defendant committed a crime of violence. Here, the parties
agree, reliable documents show that Ford committed a “walkaway” escape, which no doubt
may create a greater risk of physical injury than a failure to report, but which remains
different from a jailbreak and other crimes of violence both in kind and in its risk of physical
injury to others. For these reasons and those elaborated above, a walkaway is not a crime
of violence.
In reaching this conclusion, we note that the government does not oppose it. In the
aftermath of Chambers, the government concedes that Ford’s walkaway offense does not
amount to a crime of violence, “retreat[ing] from its prior position that walkaway escapes
are violent felonies.” Letter Br., Feb. 11, 2009 at 1 (internal quotation mark and alteration
omitted). That concession is not dispositive because a party’s position in a case (even when
that party is the United States) does not dictate the meaning of a federal law, cf. Hohn v.
United States, 524 U.S. 236, 248 (1998), because Chambers requires a modification of
circuit precedent and because the separate treatment of walkaway escapes after Chambers
deserves an explanation.
III.
For these reasons, we reverse and remand for resentencing.