Case: 08-60870 Document: 00511070491 Page: 1 Date Filed: 04/05/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 5, 2010
No. 08-60870 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
DAVID EARL HUGHES,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
Before KING, JOLLY, and STEWART, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
David Earl Hughes was convicted of being a felon in possession of a
firearm under 18 U.S.C. § 922(g) and sentenced to 293 months in prison in
accordance with the Armed Career Criminal Act (“ACCA”) on the basis that he
had previously committed three violent felonies. The § 922(g) conviction raises
no grounds requriring reversal and we affirm. Our opinion is primarily
concerned with whether Hughes’s third prior conviction for violating the federal
escape statute, 18 U.S.C. § 751(a), is a violent felony, as the district court held,
which qualified Hughes for enhanced sentencing under the ACCA. We hold that
this previous conviction under § 751(a) was for a violent felony and consequently
we affirm the sentence as well as the conviction.
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I.
On February 16, 2007, Lauderdale County Sheriff’s officers responded to
a call that Hughes had assaulted his niece and her boyfriend with an axe and
had driven away in a Nissan pickup truck to get a gun to kill them. The officers
received a description of Hughes’s truck and went in search of the vehicle, which
they found at his mother’s house. There, the officers learned that Hughes had
gone to a Winn-Dixie grocery store with his sister in her gold Toyota Corolla.
One officer observed the truck and remained there until summoned to assist
with Hughes’s arrest, which occurred after another officer stopped the Corolla.
The officers arrested Hughes and confirmed that he was a felon. Hughes was
carrying in his wallet the truck’s title, the date of which indicated that he had
purchased the truck from his brother that day. An investigator went to
Hughes’s mother’s house. What happened next is disputed. Both sides agree
that there was a .22 rifle in Hughes’s truck and that the officers ultimately
obtained a warrant to seize the rifle after Hughes refused permission to search
the truck. The officers testified that they saw a rifle in the passenger seat, but
Hughes and two of his witnesses said that the gun was not visible from outside
the truck. Instead, they said the deputies opened the door and searched the car,
finding the rifle under the seat. While at Hughes’s mother’s house, the
investigator obtained a signed statement from Hughes’s sister. She said she saw
Hughes sitting in his truck when she arrived at the house. She later testified
that she saw him sitting with a gun visible on the passenger’s side of the truck
while she spoke with him. In any event, the officers then had the truck
impounded, at which point the officers obtained a warrant. They contend they
searched the truck only after it was towed to the Sheriff’s Department.
Hughes was on supervised release at the time, which was subsequently
revoked. He was indicted on October 11, with his trial originally scheduled for
December 17, which ended in mistrial. Hughes calls the mistrial inexplicable;
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the Government attributes it to a potential conflict. His second trial began on
September 8, 2009, after a series of delays due to agreed-upon continuances and
a motion granted after an ATF agent who was to testify for the Government was
sent to Iraq.
Before trial, Hughes’s attorney moved to suppress admission of the rifle
into evidence. At a hearing, the district court heard testimony, including
testimony from two witnesses for Hughes who said they saw the officers remove
the rifle from the car before obtaining a warrant. The two officers contradicted
that testimony. Ultimately, the district court ruled that the gun was admissible.
At trial, Hughes stipulated that he had been convicted of a qualifying
felony under § 922(g) and that the rifle had traveled in interstate commerce.
Hughes did not testify. As explained below, he sought to make his own closing
argument to the jury, but the district judge ruled that he could not. The jury
convicted Hughes, and the district court ordered Hughes to forfeit the rifle.
The district court sentenced Hughes under the Armed Career Criminal
Act. Hughes objected, arguing that his conviction for the federal crime of escape
from custody was not a qualifying violent felony. Hughes filed a pro se notice of
appeal on September 11, and his current lawyer filed another notice of appeal
on February 13.
II.
Hughes raises four challenges to his conviction under § 922(g); he also
challenges his sentence under the ACCA. First, he argues that the weapon
should have been suppressed, because officers lied to obtain a search warrant.
Second, he argues that the Government violated his Sixth Amendment right to
a speedy trial. Third, he argues that his trial counsel was ineffective in failing
to make sure he was able to testify. Fourth, he argues there was insufficient
evidence to establish that he possessed the weapon. Finally, he argues that his
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previous conviction for violating the federal escape statute, 18 U.S.C. § 751(a),
is not a violent felony under the ACCA. We address each in turn.
A.
Hughes first argues that the district court should have suppressed the
weapon in this case, because the officers lied to obtain a search warrant. We
review the district court’s evidentiary rulings for abuse of discretion, reviewing
conclusions of law de novo and findings of fact for clear error. United States v.
Fort, 248 F.3d 475, 478 (5th Cir. 2001).
Hughes’s argument is essentially a fact challenge. The Government
contends that after seeing a rifle in plain view in Hughes’s car and having
Hughes deny them permission to search, officers obtained a search warrant to
seize the weapon. Hughes says that the officers actually seized the weapon
before obtaining a warrant and lied about not having seized it when seeking a
warrant. In support of his version of events, two witnesses testified that officers
entered the car, searched it, found the rifle under the seat, and placed it on the
seat in plain view before seeking a warrant. Two officers testified to the
contrary. In the case of contradictory testimony, the district court is entitled to
decide whom to believe when both present “reasonable views of the evidence.”
Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). We find no error in
its decision to admit the rifle.
B.
Hughes next argues that his conviction should be reversed because the
government violated his Sixth Amendment right to a speedy trial. See U.S.
Const. amend. VI. We review de novo. United States v. Green, 508 F.3d 195, 202
(5th Cir. 2007). Although state authorities arrested Hughes on February 16,
2007, the relevant date for speedy trial purposes is the date of his indictment,
October 12. Id. at 203. His first trial ended in a mistrial, and his second trial
began on September 8, 2008. When the period between arrest and trial is less
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than one year, we will not reverse absent wilful delay by the government or
extreme prejudice to the defendant. Knox v. Johnson, 224 F.3d 470, 476 (5th
Cir. 2000). Hughes points to no delay, but he argues that he was prejudiced by
being held in a federal facility pending trial. As the Government notes, having
violated the terms of his supervised release, Hughes’s imprisonment was the
consequence in any event. We find no extreme prejudice, and consequently, no
error.
C.
Hughes next claims that his counsel was ineffective in failing to make sure
he could testify at trial. To obtain relief, his lawyer’s actions must have been
objectively unreasonable, and he must also show prejudice. United States v.
Mullins, 315 F.3d 449, 453 (5th Cir. 2002). On the record before us, it appears
that Hughes’s attorney discouraged him from testifying because it would open
him to questioning about his extensive criminal record. Although his attorney
initially indicated that he wanted to testify, she later informed the court that he
had reconsidered. Hughes then proposed to make his own closing argument, a
request the district court rejected, because the proposed argument amounted to
testimony, not argument. There is not enough in this record to rule on whether
Hughes’s counsel was ineffective, so he must follow the usual route of collateral
attack. See United States v. Bounds, 943 F.2d 541, 544 (5th Cir. 1991).
D.
Hughes’s final challenge to his § 922(g) conviction is an attack on the
sufficiency of the evidence. He contends that the evidence was insufficient to
show he had constructive possession of the weapon. We will affirm the jury’s
verdict if “a reasonable trier of fact could find that the evidence established guilt
beyond a reasonable doubt” and the evidence will be interpreted in a light most
favorable to the verdict. United States v. Stephens, 779 F.2d 232, 235 (5th Cir.
1985); United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982).
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Constructive possession exists when the defendant has “dominion or
control over an illegal item itself, or dominion or control over the premises in
which the item is found.” United States v. De Leon, 170 F.3d 494 (5th Cir. 1999).
The record discloses ample evidence for the jury to find constructive possession,
which includes testimony from Hughes’s sister that she spoke with him while
the gun was sitting next to him in his truck.
E.
1.
We now turn to Hughes’s sentence under the ACCA. The law provides a
minimum sentence of fifteen years to those who violate § 922(g) and have three
prior convictions of a “violent felony” or “serious drug offense.” 18 U.S.C. §
924(e)(1). Hughes acknowledges that he has three prior convictions, but he
challenges the classification of the third conviction as a “violent felony”—that is,
his conviction under the federal escape statute, § 751(a). Our court has
previously held that federal escape is a crime of violence under U.S.S.G. § 4B1.2,
United States v. Ruiz, 180 F.3d 675, 677 (5th Cir. 1999),1 but Hughes argues that
recent Supreme Court decisions call on us to reevaluate that conclusion.
2.
The ACCA defines a violent felony as
any crime punishable by imprisonment for a term
exceeding one year . . . that—
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another[.]
1
“We have previously applied our holdings under the residual clause of the ACCA to
analyze the definition of crimes of violence under § 4B1.2, and vice versa. United States v.
Mohr, 554 F.3d 604, 609 n.4 (5th Cir. 2009). That is what our court did for § 751(a) in an
unpublished decision, United States v. Dilks, 135 F. App’x 653, 655 (5th Cir. 2005).
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18 U.S.C. § 924(e)(2)(B). The definition provides three separate definitions of
violent felony. First, a crime qualifies if “physical force against the person of
another” is an element of the offense. Id. § 924(e)(2)(B)(i); see generally Johnson
v. United States, — S. Ct. —, No. 08-6925 (March 2, 2010). Second, a crime
qualifies if it is an enumerated offense: burglary, arson, or extortion. 18 U.S.C.
§ 924(e)(2)(B)(ii); see generally Taylor v. United States, 550 U.S. 192 (1990).
Third, a crime qualifies if it fits the residual clause, which focuses on “potential
risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii); see generally
United States v. Begay, 128 S. Ct. 1581 (2008). The question for us is whether
§ 751(a) is a violent crime under the residual clause.
3.
To determine whether a crime is a crime of violence under the residual
clause, we use a categorical method or, in the proper case, a modified categorical
method. Sometimes, a court needs only to look to the statute of conviction to
identify the crime, but when a defendant’s prior conviction is under a statute
that identifies several separate offenses, some violent and others not, we may
apply the modified categorical method and look to certain other documents, but
only to determine “which statutory phrase was the basis for conviction.”
Johnson, — S. Ct. — (slip op. at 10). Once we identify the crime of conviction we
classify it as violent or nonviolent. To do so, we consider not how the defendant
committed the crime, but how the crime is generally committed. Chambers v.
United States, 129 S. Ct. 687, 690 (2009). The rule cuts both ways. For example,
the categorical method shows no more sympathy for the convicted burglar who
breaks into an “unoccupied structure far off the beaten path” than it has for the
burglar who intrudes on a family in its home, nor more culpability for the
convicted drunk driver who intends harm than the drunk driver who is only
negligent and intends no harm. See Begay, 128 S. Ct. at 1588 (holding that
drunk driving is not a violent felony); James v. United States, 550 U.S. 192, 207-
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08 (2007) (rejecting an argument that attempted burglary is not a violent felony
because it can be committed without risk of injury).
4.
Turning to the statute before us, Ruiz analyzed § 751(a)2 under the
residual clause and held that it was a crime of violence.3 180 F.3d at 677.
Quoting the Tenth Circuit, the panel reasoned,
Every escape scenario is a powder keg, which may or
may not explode into violence and result in physical
injury to someone at any given time, but which always
has the serious potential to do so. Indeed, 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.
Id. at 677 (quoting United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir.
1997) (alterations to quotation omitted)). Our court subsequently applied Ruiz
in an unpublished opinion to hold that § 751(a) is a violent felony under the
ACCA. United States v. Dilks, 135 F. App’x 653, 655 (5th Cir. 2005); see also
2
Section 751(a) provides:
Whoever escapes or attempts to escape from the custody of the
Attorney General or his authorized representative, or from any
institution or facility in which he is confined by direction of the
Attorney General, or from any custody under or by virtue of any
process issued under the laws of the United States by any court,
judge, or magistrate judge, or from the custody of an officer or
employee of the United States pursuant to lawful arrest, shall, if
the custody or confinement is by virtue of an arrest on a charge
of felony, or conviction of any offense, be fined under this title or
imprisoned not more than five years, or both; or if the custody or
confinement is for extradition, or for exclusion or expulsion
proceedings under the immigration laws, or by virtue of an arrest
or charge of or for a misdemeanor, and prior to conviction, be
fined under this title or imprisoned not more than one year, or
both.
3
The residual clause of § 4B1.2 is the same as that of the ACCA: “otherwise involves
conduct that presents a serious potential risk of physical injury to another.”
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United States v. Mohr, 554 F.3d 604, 609 n.4 (5th Cir. 2009) (“We have
previously applied our holdings under the residual clause of the ACCA to
analyze the definition of crimes of violence under § 4B1.2, and vice versa.”).
Since Ruiz, however, the Supreme Court has decided two important cases
that cause Hughes to question the case’s holding. First, in Begay, the Court
limited the scope of the residual clause, explaining that only crimes similar to
the enumerated offenses qualified, not “every crime that ‘presents a serious
potential risk of physical injury to another.’ ” 128 S. Ct. at 1585 (quoting 18
U.S.C. § 924(e)(2)(B)(ii)) (emphasis in original). The ACCA—which is triggered
only when a defendant violates § 922(g) by possessing a firearm—targets
criminals whose prior crimes “show an increased likelihood that the offender is
the kind of person who might deliberately point the gun and pull the trigger.”
Id. at 1586. Whether a § 922(g) violator is such a criminal is determined by an
examination of his past offenses for their violent nature. The enumerated
offenses under the ACCA—burglary, arson, extortion, and crimes involving the
use of explosives—generally involve “purposeful, violent, and aggressive”
conduct, fulfilling that aim. Id. at 1586. Drunk driving, which was at issue in
Begay, did not. True, one who commits the crime shows recklessness whose
results can be deadly. Id. at 1587-88. But a drunk driving conviction, which, by
the nature of the crime, as commonly understood and as usually committed
embodies no sort of intent, evinces no propensity for purposeful violence by the
felon. Id. at 1587. For that reason, the Court held that drunk driving was not
a violent felony for purposes of the ACCA.
The second case is more factually related to our case today. Last term, the
Court held that the Illinois crime of failure to report to prison was not a violent
felony. Chambers, 129 S. Ct. at 693. Rejecting the Government’s argument that
failure to report showed “the offender’s, special, strong aversion to penal
custody” as “beside the point,” the Court reiterated that the core inquiry is
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“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. at 692 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Turning to
a Sentencing Commission report, the Court noted that over a two-year period,
of the 160 people sentenced for failure to report by federal courts, not one person
behaved violently, and only 5 (3.1 percent) possessed a weapon. From these
data, the Court concluded that failure to report rarely presented a risk, finding
the data more persuasive than the three cases in thirty years identified by the
government in which failure to report led to violence. Id. In that regard, it
noted that “[t]he behavior that . . . 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.” Id. at 691.
Since Chambers, our court has concluded that the Texas crime of
unauthorized use of a motor vehicle is not a crime of violence under U.S.S.G. §
4B1.2. United States v. Armendariz-Moreno, 571 F.3d 490, 491 (5th Cir. 2009)
(per curiam).4 On the other hand, our court held that the Texas crime of fleeing
a peace officer by vehicle is a crime of violence, because the crime is “purposeful,
violent and aggressive.” United States v. Harrimon, 568 F.3d 531, 535 (5th Cir.
2009). The crime is purposeful, in that it requires knowingly fleeing a peace
officer; violent, in that the perpetrator is in a vehicle, often at high speeds in
crowded surroundings; and aggressive, in that it involves disregarding orders of
4
We do not take those words to mean, and neither party argues that they do mean, that
the elements must require such conduct, as that would collapse the residual clause into the
first definition of a violent felony, which requires that an element involve physical force. See
18 U.S.C. § 924(e)(2)(B)(i). Furthermore, Chambers looked to data on how failure to report
was actually committed, not what the crime required. 129 S. Ct. at 692.
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a peace officer. Id. at 535.5 For the reasons that follow, we do not think
Chambers and Begay require us to reverse our holding in Ruiz.
5.
The first step in our analysis is to look to see whether § 751(a) contains
multiple crimes. It does. It forbids both escape and attempt to escape. We have
said that escape requires “(1) an unauthorized departure, (2) from the custody
of the Attorney General or from an institution in which the accused was placed
by the Attorney General, (3) where the custody or confinement is by virtue of
either an arrest for a felony or conviction of any offense.” United States v.
Edrington, 726 F.2d 1029, 1031 (5th Cir. 1984); see also United States v. Bailey,
444 U.S. 394, 407 (1980) (defining “escape” as “absenting oneself from custody
without permission”). As the second element suggests, the statute not only
distinguishes between escape and attempted escape, but also the escape’s
circumstances, including custody of an officer, custody of another employee, and
“from any institution or facility in which he is confined.” 18 U.S.C. § 751(a).
Thus, employing the modified categorical approach, we consider other documents
to determine the crime of conviction. Turning to the indictment, we can identify
Hughes’s offense as “escape . . . from an[] institution . . . in which he is
confined.”6
5
We have also considered, in unpublished opinions, cases specifically involving the
classification of § 751(a) as a crime of violence. United States v. Miles, 340 F. App’x 982 (5th
Cir. 2009) (per curiam); United States v. Delgado, 320 F. App’x 286 (5th Cir. 2009) (per
curiam). In Delgado, the panel determined that Ruiz was consistent with Chambers, relying
on the distinction in Chambers between escapes and failures to report. Delgado, 320 F. App’x
at 286-87 (citing Chambers, 129 S. Ct. at 687, 691). In Miles, the Government conceded that
§ 751(a) was not a crime of violence post-Chambers, so the panel “accept[ed] the Government’s
concession . . . [and found] that the district court’s career offender determination was
erroneous.” Miles, 320 F. App’x at 984.
6
Hughes’s indictment alleges that he “did knowingly escape from an institution to
which [he was] confined by the Attorney General, to wit: the Madison county Detention
Facility in Canton, Mississippi.”
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6.
We turn now to whether escape from an institution in which one is
confined is a violent felony—that is, whether one would consider the crime itself
as creating a situation described in the statutory language as involving “conduct
that presents a serious potential risk of physical harm to another”; a crime that
suggests that if the defendant possessed a gun, he would likely use it; a crime
whose typical commission is purposeful, violent, and aggressive. 18 U.S.C. §
924(e)(2)(B)(ii); Begay, 128 S. Ct. at 1586. We hold that it is. Unlike failure to
report, escape is typically committed in a purposeful manner, and when these
escapes cause injuries, those injuries typically result from intentional action, not
negligence or even recklessness. See Chambers, 129 S. Ct. at 692 (contrasting
failure to report to the enumerated offenses); Begay, 128 S. Ct. at 1587
(characterizing drunk driving as a crime of recklessness, not violence). It is
violent insofar as the crime includes behavior that is significantly more
dangerous behavior than the failure to report considered in Chambers. Indeed,
the Court acknowledged that “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.” 129 S. Ct. at 691.7 Finally, the act is
typically aggressive insofar as one who escapes prison is no doubt aware that
armed law enforcement will seek him out, potentially ending in a violent
confrontation. See Harrimon, 568 F.3d at 535. This is precisely the sort of felon
who, later possessing a firearm illegally, might “pull the trigger”—the kind of
We do not decide whether the other crimes set out in § 751(a) are also violent felonies.
7
We note that the Seventh Circuit has concluded that failure to report is covered by
§ 751(a), Hart, 578 F.3d at 677 n.3, but we have never reached such a conclusion. Even if it
were included in escape from an institution in which one is confined, failures to report
accounted for only 10 percent of the instances of escape crimes the Sentencing Commission
considered. U.S. Sentencing Comm’n, Report on Federal Escape Offenses in Fiscal Years 2006
and 2007 at 7.
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person the ACCA was intended to reach. Begay, 128 S. Ct. at 1586. It was in
this sense that we termed escape a “powder keg” in Ruiz, and now reaffirm our
holding in that case and thus affirm Hughes’s sentence.8
III.
We have reviewed Hughes’s arguments and finding no reversible error, the
judgment of the district court is
AFFIRMED.
8
We acknowledge that the Seventh Circuit came to a different conclusion in United
States v. Hart, 578 F.3d 674, 681 (7th Cir. 2009). We do not create a circuit split; instead we
simply conclude that Chambers and Begay do not require abrogation of Ruiz.
13