RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0312p.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. 06-6056
v.
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Defendant-Appellant. -
JERRY RAY OAKS,
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On Remand from the United States Supreme Court.
No. 04-00037—J. Ronnie Greer, District Judge.
Decided and Filed: December 15, 2011
Before: KENNEDY and MARTIN, Circuit Judges; HOOD, District Judge.*
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COUNSEL
ON BRIEF: Salvatore C. Adamo, LAW OFFICE OF SALVATORE C. ADAMO,
Phillipsburg, New Jersey, for Appellant. Robert M. Reeves, ASSISTANT UNITED
STATES ATTORNEY, Greeneville, Tennessee, for Appellee.
MARTIN, J., delivered the opinion of the court, in which KENNEDY, J., joined.
HOOD, D. J. (pp. 4–5), delivered a separate dissenting opinion.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. The history of this case, recited in
United States v. Oaks, 554 F.3d 1087, 1088 (6th Cir. 2009), is as follows:
Defendant Jerry Ray Oaks pleaded guilty to being a felon in possession
of a firearm and the district court in the Eastern District of Tennessee
*
The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
No. 06-6056 United States v. Oaks Page 2
sentenced him to 120 months of incarceration and five years of
supervised release, entering the judgment on August 9, 2006. He
appealed his sentence, in the first instance, challenging, in part, the
district court’s use of his prior conviction for felony escape to support his
sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Oral
argument before us was waived and we affirmed the sentencing court’s
judgment on May 14, 2008. On January 21, 2009, the Supreme Court
granted Defendant’s application for a writ of certiorari, vacated our
judgment, and remanded the case to us for reconsideration in light of its
decision in Chambers v. United States, 555 U.S. [122 (2009)].
We remanded this case “to the district court for a determination of the type of facility
and level of security involved in the ‘custody of the Carter County Sheriff’s department’
at the time of Oaks’s escape.” Id. at1088-89 (citation omitted). The district court,
United States v. Oaks, No. 2:04-CR-37, slip op. at 4 (E.D. Tenn. July 23, 2009), made
the following factual determinations:
first, it appears from the uncontroverted facts that at the time of the
felony escape, Oaks was being held in law enforcement custody in the
county jail on felony charges of evading arrest, felony reckless
endangerment, attempted aggravated robbery, theft over $500.00 and
aggravated burglary, but had been taken to a courtroom for a court
appearance at the time he ran from the courtroom; secondly, while the
county jail was a secure facility, the courtroom from which Oaks ran
was not.
The facts show that Oaks escaped custody from a courtroom, and that the
courtroom was not a secure facility. Oaks thus escaped from “nonsecure custody.” At
the time of his escape, Oaks was present in the courtroom to enter pleas of guilty to all
his outstanding offenses and with the understanding that the prosecutor had agreed to
various periods of probation. Indeed, when he was sentenced for those crimes the
following week, he was given various periods of probation. He received a year of
incarceration for his escape. Our task is to determine whether escape from “nonsecure
custody” is a “violent felony” for sentencing purposes.
Here, as in Chambers, to determine whether a felony is a violent felony, “[t]he
question is whether . . . an offender is significantly more likely than others to attack, or
physically to resist, an apprehender, thereby producing a ‘serious potential risk of
No. 06-6056 United States v. Oaks Page 3
physical injury.’” Chambers, 555 U.S. at 128-29 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).
And here, as in Chambers, “a United States Sentencing Commission report helps provide
a conclusive, negative answer.” Id. at 129 (citations omitted). As reflected in an
appendix to Chambers, the act of escape from “nonsecure custody” is rarely violent. Id.
app. B (showing in a statistical table that in one hundred seventy-seven instances of
escape from “nonsecure custody” in 2006 and 2007, only 1.7% resulted in some injury).
Further, a felony is not necessarily a “violent felony” even if historical data show past
commissions of that felony involved violence. Indeed, the Supreme Court in Chambers
determined that “failing to report” is not a “violent felony,” yet past commissions of
“failing to report” involved violence in at least three instances. Id. at 129-30. We hold
that escape from “nonsecure custody” is not a violent felony for sentencing purposes.
While some courtrooms may indeed be secure facilities such that an escape from them
would be an escape from “secure custody,” the courtroom from which Oaks escaped was
not secure. Thus, Oaks’s escape from the courtroom is not a violent felony for
sentencing purposes. Accordingly, we REMAND for resentencing consistent with this
Opinion.
No. 06-6056 United States v. Oaks Page 4
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DISSENT
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HOOD, District Judge, dissenting. I disagree with the majority’s conclusion that
Oaks’s escape from a courtroom, without proof that the courtroom had a secure
perimeter, was not a violent felony for sentencing purposes. Rather, I conclude that
because he was within the custody of law enforcement personnel at the time of his
escape from the courthouse setting that he is an offender “significantly more likely than
others to attack, or physically to resist, an apprehender, thereby producing a ‘serious
potential risk of physical injury.’” Chambers v. United States, 555 U.S. 122, 128-29
(2009).
Oaks was being held in a secure county jail before being taken by his custodian
to the courthouse for an appearance on felony charges of evading arrest, felony reckless
endangerment, attempted aggravated robbery, theft over $500.00 and aggravated
burglary. Obviously the courtroom is not as secure as the county jail, but I am hard
pressed to imagine an individual who is “significantly more likely than others to attack,
or physically to resist, an apprehender, thereby producing a ‘serious potential risk of
physical injury,’” than someone who flees from law enforcement custody during an
appearance in a matter in which he is facing felony charges.
The United States Sentencing Commission’s Report on Federal Escape Offenses
in Fiscal Years 2006 and 2007 (Nov. 2008) (hereinafter, “Report”), to which both the
Chambers court and the majority have given great weight, supports this conclusion. The
Report defines “secure escape” as those situations in which individuals have left secure
custody or law enforcement custody.1 Report at 6. 14.3% of the secure escape cases
1
“Leaving secure custody” occurred when an “escapee left (or attempted to leave) the custody
of a location with a secure perimeter, such as a prison or jail.” Report at 4. “Leaving law enforcement
custody” occurred when an “escapee left (or attempted to leave) the custody of a law enforcement officer,
such as during transport between institutions.” Id.
No. 06-6056 United States v. Oaks Page 5
involved force compared to 0.9% of instances of nonsecure escapes.2 Id. at 7. 27.3%
of secure escapes involved a dangerous weapon while only 2.7% of the nonsecure
escapes involved a dangerous weapon.3 Id. at 8. Injury accompanied 11.7% of the
secure escapes as opposed to 0.9% of the nonsecure escapes.4 Id. Even if one considers
only those escapees who left or attempted to leave law enforcement custody, 7.7% used
force, 7.7% were instances that involved dangerous weapons, and injury accompanied
15.4% of the escapes. Id. at 7.
Ultimately, Tenn. Code Ann. § 39-16-601(3) (2009) defines “[e]scape” as the
“unauthorized departure from custody” and clearly contemplates Oaks’s conduct in this
instance. Chambers does not preclude a finding to the contrary. I would affirm.
2
The Report groups together those instances in which an offender left nonsecure custody, failed
to return to custody to serve an incarceration sentence, or failed to report to custody as “nonsecure
escapes.” Report at 6.
3
A dangerous weapon “was considered to be present if the sentencing documentation indicated
that the offender used, brandished, or otherwise possessed any dangerous weapon in connection with the
escape. For purposes of this analysis, a dangerous weapon means an instrument capable of inflicting death
or serious bodily injury.” Report at 5.
4
“This factor was considered to be present if the sentencing documentation indicated that the
offender caused any bodily injury (including death) to another in connection with the escape.” Report at
5.