PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4333
ANDREW JERMAINE BETHEA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
R. Bryan Harwell, District Judge.
(4:08-cr-00872-RBH-1)
Argued: March 25, 2010
Decided: April 27, 2010
Before TRAXLER, Chief Judge, and GREGORY and
SHEDD, Circuit Judges.
Vacated and remanded by published opinion. Judge Gregory
wrote the opinion, in which Chief Judge Traxler and Judge
Shedd joined.
COUNSEL
ARGUED: Michael A. Meetze, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Florence, South Carolina, for Appel-
lant. Carrie Ann Fisher, OFFICE OF THE UNITED STATES
2 UNITED STATES v. BETHEA
ATTORNEY, Florence, South Carolina, for Appellee. ON
BRIEF: W. Walter Wilkins, United States Attorney, Colum-
bia, South Carolina, Rose Mary Parham, Assistant United
States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Florence, South Carolina, for Appellee.
OPINION
GREGORY, Circuit Judge:
South Carolina makes it a crime "to escape," and broadly
defines the term to include both unlawfully leaving and fail-
ing to report to custody. S.C. Code Ann. § 24-13-410(A)
(2009). We consider two questions regarding the relationship
between this statute and the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e) (2006), in this appeal: First,
whether a conviction under the state’s escape statute necessar-
ily constitutes a "violent felony" under the ACCA. And sec-
ond, if it does not, whether this defendant’s conviction
necessarily involves the type of violent conduct contemplated
by the ACCA.
In light of the Supreme Court’s decision in Chambers v.
United States, 129 S. Ct. 687 (2009), we hold that a convic-
tion under South Carolina’s escape statute does not inherently
constitute a violent felony. Further, because we cannot deter-
mine whether the defendant’s conduct here necessarily vio-
lated the statute in a way that would bring him under the
ACCA’s ambit, we vacate his sentence and remand to the dis-
trict court for proceedings consistent with this opinion.
I.
The defendant, Andrew Jermaine Bethea ("Bethea"), chal-
lenges his 180-month prison sentence, imposed after he pled
guilty to being a felon in possession of a firearm, in violation
UNITED STATES v. BETHEA 3
of 18 U.S.C. § 922(g)(1). The district court enhanced
Bethea’s sentence after determining that he had three prior
ACCA-predicate convictions.
Under the ACCA, a defendant who is convicted of being a
felon in possession of a firearm and who has "three previous
convictions . . . for a violent felony or a serious drug offense,
or both, committed on occasions different from one another,"
is subject to a fifteen-year mandatory minimum prison sen-
tence. § 924(e)(1). The ACCA defines a "violent felony" as a
"crime punishable by imprisonment for a term exceeding one
year" that either
(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 the use
of explosives, or otherwise involves conduct
that presents a serious potential risk of physical
injury to another.
§ 924(e)(2)(B).
Before the district court, Bethea did not dispute that two of
his prior convictions were ACCA-predicate offenses; how-
ever, he argued that his conviction for violating South Caroli-
na’s escape statute was not. The district court disagreed,
finding that Bethea’s conviction was a violent felony within
the meaning contemplated by the ACCA. Though it appar-
ently agreed that escape, as defined by South Carolina, is not
a categorically violent crime, it found that Bethea violated the
statute in a way that would constitute a violent crime after
considering the relevant charging and judicial documents. It
therefore enhanced Bethea’s sentence in accordance with the
ACCA. Bethea timely appealed.
4 UNITED STATES v. BETHEA
II.
a.
When deciding whether an offense constitutes a violent fel-
ony under the ACCA, the Supreme Court has made clear that
our first step is to determine which of two, potentially appli-
cable interpretive methods applies to the challenged statute.
First, we are to consider whether the statute proscribes con-
duct that "as generally committed" includes an element of
violence. Chambers, 129 S. Ct. at 690; Taylor v. United
States, 495 U.S. 575, 598 (1990). Under this categorical
approach, the way in which a particular defendant violated the
statute on the particular day in question is irrelevant; the only
question is whether the statutory language proscribes conduct
that involves violence when the offense is considered generi-
cally. Chambers, 129 S. Ct. at 690.
Where, however, a statute broadly criminalizes conduct
that could be "generally committed" in multiple ways, some
violent and some not, the categorical approach is inapplicable.
Id.; Taylor, 495 U.S. at 599. Under this so-called, "modified-
categorical" approach, a court is entitled to review "charging
documents filed in the court of conviction, or [ ] recorded
judicial acts of that court," to determine whether the defen-
dant’s crime "necessarily" constituted the type of generic con-
duct that would implicate the ACCA. Shepard v. United
States, 544 U.S. 13, 20 (2005); Taylor, 495 U.S. at 602. And
in determining whether a statute’s terms are so broad as to
include multiple categories of conduct, some of which would
and others which would not constitute violent felonies, we
look to how its elements are defined by statute and by the
state’s supreme court. Johnson v. United States, No. 08-6925,
2010 U.S. LEXIS 2201, at *8 (U.S. March 2, 2010).
b.
Until recently, the question of which approach to apply to
the escape statute before us would likely have been resolved
UNITED STATES v. BETHEA 5
by Circuit precedent. In United States v. Hairston, 71 F.3d
115 (4th Cir. 1995), we considered a similar North Carolina
escape statute and held that under the categorical approach, an
escape conviction constituted a violent felony under the
ACCA. Id. at 117.
Last term, however, the Supreme Court decided Chambers
v. United States, which directly undermines our holding in
Hairston, particularly where an escape statute can be violated
by a defendant’s failure to report to custody. Addressing an
Illinois escape statute, which by its terms could be violated by
a defendant’s breaking out of jail or by a defendant’s failing
to report, the Court found that a defendant’s conviction under
that statute had to be considered under the modified-
categorical approach. Chambers, 129 S. Ct. at 691. That stat-
ute, the Court reasoned, proscribed "at least two separate
crimes," one of which, failure to report, was not a violent fel-
ony under the ACCA. Id. Where, then, a statute prohibits both
failure to report and more traditional escapes, a court must use
the modified-categorical approach to determine which of the
two forms of conduct the defendant engaged in when deter-
mining whether his prior offense brings him within the
ACCA’s purview.
III.
a.
At first blush, it is unclear whether South Carolina’s escape
statute proscribes one or more generic forms of conduct. By
its terms, the statute merely makes it a crime "for a person,
lawfully confined in prison or upon the public works of a
county or while in the custody of a superintendent, guard, or
officer, to escape." § 24-13-410(A).1 Unlike the Illinois statute
1
Section 24-13-410(A) also makes it a felony to attempt to escape or
possess tools of escape. Neither of these provisions is applicable to this
appeal.
6 UNITED STATES v. BETHEA
in Chambers, the statute here does not reduce escape to differ-
ent forms of conduct, but rather makes it a crime simply "to
escape." Id.
It is clear, however, that the term "escape" under South
Carolina law broadly encompasses both traditional escape and
failure to report. A separate statutory provision dealing with
inmate furloughs states that "[t]he wilful failure of a prisoner
to remain within the extended limits of his confinement or
return within the time prescribed to the places of confinement
. . . is considered an escape from the custody of the director
punishable as provided in Section 24-13-410." S.C. Code
Ann. § 24-3-210 (emphasis added). South Carolina therefore
defines and treats the failure to return to custody2 in the same
way it does unlawfully leaving custody. A defendant who
commits either offense is simply charged with escape under
section 24-13-410.
The South Carolina Supreme Court has emphasized section
24-13-410’s broad scope. In South Carolina v. Murray, 256
S.E.2d 543 (S.C. 1979), the defendant challenged his convic-
tion under section 24-13-410 for failing to return to custody
after a period of authorized release. Id. at 543. Specifically, he
alleged a material variance between his indictment, which
alleged that he "wilfully and unlawfully escape[d]" from cus-
tody, and the proof at trial, which showed that he merely
failed to return to prison. Id. The state supreme court held that
there was no material variance, because under South Carolina
law, a person escapes from custody by failing to return;
indeed, that failing to return is "the very crime" defined by the
statutory term escape. Id. at 544.
Because it is clear that the term "to escape" broadly encom-
passes at least two generic classes of conduct under South
2
The Supreme Court made clear in Chambers that for ACCA purposes,
a failure to report and a failure to return to custody are considered part of
the same generic course of conduct. 129 S. Ct. at 691.
UNITED STATES v. BETHEA 7
Carolina law, including failure to report, Chambers requires
us to use the modified-categorical approach to determine
whether the defendant’s conduct was generically violent. See
129 S. Ct. at 691. The district court was therefore correct to
look to the charging documents to determine whether Bethea
committed a violent felony.
b.
In his brief,3 Bethea argues that in light of Chambers’ hold-
ing that the challenged Illinois escape statute contained "at
least two separate crimes," id., we should further expand the
range of crimes that generally constitute escape. Specifically,
he urges us to find that "walk-away" escapes are a separate
category of conduct, distinct from "break-out" escapes, and
that the former category is insufficiently "purposeful, violent,
and aggressive," Begay v. United States, 128 S. Ct. 1581,
1588 (2008), to be an ACCA predicate.
3
At oral argument, Bethea’s counsel argued, in the alternative, that we
should apply the categorical approach to find that violations of the South
Carolina statute are not violent felonies. We cannot do so in light of
Chambers, in which the Supreme Court made clear that escape statutes,
which include in their definitions failure to report, should be analyzed
under the modified-categorical approach. 129 S. Ct. at 691.
Furthermore, we disagree with counsel’s contention that our recent
decision in United States v. Rivers, 595 F.3d 558 (4th Cir. 2010), suggests
a contrary result. In Rivers, we found the modified-categorical approach
inapplicable to South Carolina’s blue-light statute because the statute pro-
scribed only one general course of conduct — namely failing to stop for
a police signal. We emphasized that, after Chambers, a statute did not pro-
scribe different forms of conduct simply because it covered both inten-
tional and unintentional acts — the statute had to proscribe acts, which
themselves, were different in-kind, regardless of the perpetrator’s mens
rea. Here, the South Carolina statute covers not just intentional and unin-
tentional conduct, but rather at least two separate generic forms of con-
duct: unlawfully leaving and failing to return to custody, which the
Supreme Court explicitly held must be analyzed separately under the
ACCA. Chambers, 129 S. Ct. at 691.
8 UNITED STATES v. BETHEA
Bethea’s argument has gained significant traction in the
federal appellate courts. Indeed, each circuit to consider this
question in a published opinion4 after Chambers has held that
walk-away escape is a distinct form of generic conduct that
does not constitute a violent felony under the ACCA. See
United States v. Lee, 586 F.3d 859, 869 (11th Cir. 2009);
United States v. Hopkins, 577 F.3d 507, 514 (3d Cir. 2009);
United States v. Hart, 578 F.3d 674, 678 (7th Cir. 2009);
United States v. Ford, 560 F.3d 420, 423 (6th Cir. 2009);
United States v. Charles, 576 F.3d 1060, 1068 (10th Cir. 2009).5
We need not wade into this discussion, however, because the
South Carolina escape statute here penalizes both unlawfully
leaving custody and failing to report to custody. Under
Chambers, then, the statute must be analyzed under the
modified-categorical approach, regardless of whether or not
walk-away escape is a distinct form of conduct.
IV.
Because South Carolina’s escape statute includes, by defi-
nition, at least one form of conduct that is and one form of
conduct that is not an ACCA predicate, we must now consider
whether Bethea’s charging documents and any judicial
records "necessarily" show that Bethea pled guilty to generic
conduct that would constitute a violent felony. See Shepard,
544 U.S. at 20-21. They do not.
Besides the statute, itself, the only documents relating to
Bethea’s escape conviction that we may consider are the
indictment and the sentencing sheet. See id. at 15. The indict-
4
The Fifth Circuit held in an unpublished decision that walk-away
escape should still be treated as a violent felony after Chambers. United
States v. Delgado, 320 Fed. App’x 286, 286 (5th Cir. 2009).
5
We also note that the government does not challenge Bethea’s argu-
ment that walk-away escapes are separate crimes that do not implicate the
ACCA, and that it conceded this same point before at least one other court
of appeals. See Lee, 586 F.3d at 867.
UNITED STATES v. BETHEA 9
ment reads: "That Andrew Bethea did in Marlboro County on
or about December 12, 1995, escape from the Marlboro
County Detention Center while waiting to appear in General
Sessions Court in violation of Section 24-13-410 of the 1976
Code of Laws of South Carolina." J.A. 106.6 Bethea’s sen-
tencing sheet merely states that Bethea pled guilty to "es-
cape." J.A. 104. The government argues, and the district court
below found, that these documents prove that Bethea unlaw-
fully left prison and did not merely fail to report.
Yet, these documents simply state that Bethea escaped,
which alone makes it possible that Bethea engaged in patently
non-violent conduct. Because a defendant "escapes" under
South Carolina law by either breaking out or failing to report,
see Murray, 256 S.E.2d at 544, Bethea could have failed to
report to the detention center before his hearing and might not
have unlawfully left physical custody. Even the indictment,
which is admittedly more detailed than the sentencing sheet,
would be just as legally and factually accurate were it describ-
ing an escape in which Bethea killed four guards, stole a bull-
dozer, and broke down a concrete wall to effect that escape
from custody, as it would be were it describing an incident in
which Bethea merely failed to arrive at a detention center to
await his court hearing.7 The indictment and the sentencing
sheet, therefore, cannot "necessarily" show that Bethea
engaged in the type of generally violent conduct contemplated
by the ACCA. See Shepard, 544 U.S. at 24.
6
Citations to J.A. __ refer to the Joint Appendix filed by the parties
upon appeal.
7
Because the indictment specifies that Bethea escaped while waiting to
appear in court, we recognize that the most plausible explanation for his
specific conduct is that he fled custody, rather than that he simply failed
to report. Under Shepard, however, we are charged with considering
whether Bethea’s conduct was "necessarily" violent, not whether his con-
duct was plausibly or even likely so. 544 U.S. at 24. Bethea might have
been released from custody for a finite period prior to his hearing. Had he
been on such a furlough and then failed to return for his hearing, he would
have escaped under South Carolina law. This possibility precludes a find-
ing that Bethea necessarily left custody unlawfully.
10 UNITED STATES v. BETHEA
It is true that were we to interpret the term "escape," as
used in the indictment and sentencing sheet, in the way in
which the word is commonly used, then we would likely have
to conclude that Bethea unlawfully departed prison, and not
that he merely failed to report. We have no basis for assum-
ing, however, that South Carolina ascribes one meaning to
escape when it is used in statutes and court opinions, but
another entirely when used in charging documents and sen-
tencing sheets. This is especially true in light of Murray, in
which the indictment used the term "escape" to describe the
defendant’s failure to return to custody. 256 S.E.2d at 543.
Consequently, we conclude that even after considering the
relevant documents under the modified-categorical approach,
Bethea’s conviction for violating section 24-13-410 is not a
violent felony under the ACCA.8
V.
Our holding that Bethea’s prior escape conviction is not an
ACCA predicate necessarily means that Bethea should not
have been subjected to the ACCA’s fifteen-year, mandatory-
minimum provision. We therefore vacate his sentence and
remand to the district court for proceedings consistent with
this opinion.
VACATED AND REMANDED
8
Bethea also urges this Court to apply the doctrine of constitutional
avoidance to interpret the ACCA as requiring that predicate convictions be
pled in an indictment and proved beyond a reasonable doubt. We do not
reach this question because the offense at issue is not an ACCA predicate
under these facts. And as Bethea notes, the Supreme Court’s decisions in
Apprendi v. New Jersey, 530 U.S. 466 (2000) and Almendarez-Torres v.
United States, 523 U.S. 224, 249 (1998), preclude this claim.