United States Court of Appeals
For the First Circuit
No. 03-1534
UNITED STATES OF AMERICA,
Appellee,
v.
VINCENT WINN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Stahl, Senior Circuit Judge.
Richard F. Monteith, Jr., for appellant.
Mark E. Howard, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief, for
appellee.
April 9, 2004
TORRUELLA, Circuit Judge. Defendant-appellant Vincent
Winn ("Winn") appeals the sentence imposed by the district court,
objecting to its enhancement under the career offender provisions
of the federal sentencing guidelines. U.S.S.G. § 4B1.1. Winn
argues that the government failed to show the requisite predicate
offenses because his conviction of a Class B felony under the New
Hampshire escape statute, N.H. Rev. Stat. Ann. § 642:6, does not
constitute a crime of violence within the meaning of the
guidelines. We disagree and affirm Winn's enhanced sentence as a
career offender.
I. Background
On January 9, 2003, Winn pleaded guilty to conspiracy to
distribute and to possess with intent to distribute fifty grams of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1) & 846. In the
Presentence Investigation Report ("PSI Report") submitted to the
district court, Winn was deemed a career offender under § 4B1.1,
based in part on the predicate offense of a 1996 Class B felony
conviction under N.H. Rev. Stat. Ann. § 642:6, in which it was
charged that Winn did "knowingly escape from official custody in
that he walked away from the Calumet Halfway House . . . after
having been confined there pursuant to an order of the Hillsborough
County Superior Court." Winn had failed to return to the halfway
house after a break. Four days later, he returned and surrendered
himself.
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The PSI Report characterized the escape conviction as a
crime of violence pursuant to U.S.S.G. § 4B1.2(a)(2). Winn
objected to the report and, at the sentencing hearing on April 10,
2003, Winn argued that the non-violent nature of the escape charge
could be established by looking to the New Hampshire statute under
which he was charged, which, he contends, distinguishes between
violent and non-violent escapes. Moreover, Winn argued, the
indictment itself shows that no element of violence was alleged or
charged, and the underlying facts suggest no threat of violence, as
Winn voluntarily surrendered himself into custody four days after
walking away.
The district court adopted the PSI Report's
recommendation and deemed Winn a career offender. Winn was
sentenced to 151 months imprisonment and five years of supervised
release. This appeal followed.
II. Analysis
We review de novo whether a crime qualifies as a crime of
violence within the meaning of § 4B1.2(a)(2) and therefore as a
predicate offense under § 4B1.1. United States v. De Jesús, 984
F.2d 21, 22 n.4 (1st Cir. 1993)(citing United States v. Fiore, 983
F.2d 1, 2 (1st Cir. 1992)).
The sentencing guidelines define a "crime of violence" as
any federal or state offense punishable by imprisonment for more
than one year that:
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(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.
U.S.S.G. § 4B1.2(a). Following Taylor v. United States, 495 U.S.
575 (1990), courts have taken a formal categorical approach to the
question of whether a felony constitutes a crime of violence within
this definition. United States v. Winter, 22 F.3d 15, 18 (1st Cir.
1994)("As a rule, this type of approach is restricted to an
examination of how the legislature has defined the crime, without
any concomitant inquiry into the details of the defendant's actual
criminal conduct.").1 "Thus, rather than examining the actual
circumstances underlying the earlier conviction, we examine only
the statutory formulation of the crime charged . . . to see if that
crime is a crime of violence for the purposes of the career
offender guideline." De Jesús, 984 F.2d at 23. In some limited
circumstances, however, a court "may appropriately peruse documents
1
Although Taylor applied the categorical approach to determine
what constitutes a "violent felony" under the Armed Career Criminal
Act ("ACCA"), Taylor, 495 U.S. at 600-02, courts have uniformly
adopted the Taylor approach for the analogous determination of what
constitutes a crime of violence under the sentencing guidelines.
"Given the substantial similarity between the Armed Career Criminal
Act's definition of 'violent felony,' and the Sentencing
Commission's definition of 'crime of violence,' authority
interpreting one phrase is found to be persuasive in interpreting
the other phrase." Winter, 22 F.3d at 18 n.3 (internal citations
omitted).
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such as the charging papers or jury instructions in order to flesh
out a predicate offense inquiry." Id. at 23 n.5.2
The New Hampshire escape statute under which Winn was
charged provides as follows:
I. A person is guilty of an offense if he
escapes from official custody.
II. "Official custody" means arrest, custody
in a penal institution, an institution for
confinement of juvenile offenders or other
confinement pursuant to an order of a court.
III. The offense is a class A felony if the
actor employs force against any person or
threatens any person with a deadly weapon to
effect the escape, except that if the deadly
weapon is a firearm, he shall be sentenced in
accordance with RSA 651:2, II-g. Otherwise it
is a class B felony.
N.H. Rev. Stat. Ann. § 642:6. The statute thus distinguishes
between Class A and Class B felony escapes based on the use of
force or of a deadly weapon.
Winn argues that the New Hampshire statute thus
distinguishes between violent and non-violent escapes, and that a
Class B escape conviction can be identified as non-violent without
looking beyond the charge. The government concedes that the Class
B felony of which Winn was charged does not have "as an element the
use, attempted use, or threatened use of physical force against the
2
The question of exactly which documents may be considered to
ascertain whether a conviction involved a violent or a non-violent
crime has been raised in several cases before this court, see,
e.g., United States v. Shepard, 348 F.3d 308 (1st Cir. 2003), but
is not raised here.
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person of another," U.S.S.G. § 4B1.2(a)(1), but argues that the
charged offense "otherwise involves conduct that presents a serious
potential risk of physical injury to another." U.S.S.G. § 4B1.2
(a)(2).
We have previously held that "even if force (actual or
threatened) is not an element of the offense, a crime may still be
a crime of violence if it falls within the 'otherwise' clause of
subsection (ii), that is, if it 'involves conduct that presents a
serious potential risk of physical injury to another.'" De Jesús,
984 F.2d at 23 (quoting U.S.S.G. § 4B1.2(a)(2)). While escape is
not among the offenses, such as murder, manslaughter, and
kidnapping, listed in the Sentencing Commission's application notes
to § 4B1.2, this absence is not dispositive. "Expanding on the
'otherwise' clause, the application notes explain that '[o]ther
offenses are included where . . . the conduct set forth (i.e.,
expressly charged) in the count of which the defendant was
convicted . . . , by its nature, presented a serious potential risk
of physical injury to another.'" De Jesús, 984 F.2d at 24 (quoting
U.S.S.G. § 4B1.2, cmt. n.2).3 The question before us, then, is
3
Winn refers us to a 1988 application note to § 4B1.2 that, in
elaborating on the Sentencing Commission's definition of a "crime
of violence," offered the following directive: "For example,
conviction for an escape accomplished by force or threat of injury
would be covered; conviction for an escape by stealth would not be
covered." U.S.S.G. § 4B1.2 cmt. n.1 (1988). As this is no longer
part of the notes to § 4B1.2 and no explanation is offered for its
disappearance, we do not take it into consideration.
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"whether [a Class B felony escape under N.H. Rev. Stat. Ann.
§ 642:6] is a category of crime that, by its nature, presents a
substantial risk of personal injury even though its statutorily
defined elements do not include the use or threat of force." De
Jesús, 984 F.2d at 24.
Our sister circuits have uniformly held that, as a
categorical matter, any escape, however effected, "involves conduct
that presents a serious potential risk of physical injury to
another" and thus constitutes a crime of violence for the purposes
of the sentencing guidelines. United States v. Bryant, 310 F.3d
550, 554 (7th Cir. 2002)(failure to report back to halfway house
constitutes a crime of violence because "every escape involves a
serious potential risk of physical injury to another")(internal
quotations omitted); United States v. Luster, 305 F.3d 199, 202 (3d
Cir. 2002)(rejecting the argument that if an escape statute extends
to "walk away" escapes the crime cannot by its nature present a
serious potential risk of physical injury to another); United
States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001)(same)("We
believe that every escape, even a so-called 'walkaway' escape,
involves a potential risk of injury to others . . . . Even the most
peaceful escape cannot eliminate the potential for violent conflict
when the authorities attempt to recapture the escapee."); United
States v. Gay, 251 F.3d 950, 954-55 (11th Cir. 2001)(same); United
States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir. 1999)(same); United
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States v. Harris, 165 F.3d 1062, 1068 (6th Cir. 1999)(same); United
States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir. 1997)(same);
United States v. Dickerson, 77 F.3d 774, 777 (4th Cir. 1996)(same).
Circuit courts that have addressed the analogous question
of whether an escape conviction qualifies as a "violent felony"
under the Armed Career Criminal Act ("ACCA") have similarly applied
the categorical Taylor analysis to conclude that escape, by its
nature, involves "conduct that presents a serious potential risk of
physical injury to another." United States v. Jackson, 301 F.3d
59, 62-63 (2d Cir. 2002); United States v. Franklin, 302 F.3d 722
(7th Cir. 2002); United States v. Hairston, 71 F.3d 115, 117-18
(4th Cir. 1995). In Jackson, the court reasoned that "[a]n inmate
who escapes by peacefully walking away from a work site will (if he
can) be inconspicuous and discreet, and will (if he can) avoid
confrontation and force. But escape invites pursuit; and the
pursuit, confrontation, and recapture of the escapee entail serious
risks of physical injury to law enforcement officers and the
public." Jackson, 301 F.3d at 63.
The categorical approach has thus led to the conclusion
that "under the ACCA and the United States Sentencing Guidelines,
escape is always a violent crime. It is irrelevant whether the
escape actually involved any violence or whether defendant was
convicted under a state statute that defines escape as a nonviolent
offense." United States v. Springfield, 196 F.3d 1180, 1185 (10th
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Cir. 1999). Even when the state escape statute "distinguishes
between an escape effected by or facilitated by violence, versus a
simple escape," the categorical approach has yielded the same
conclusion, on the grounds that "[e]ven though initial
circumstances of an escape may be non-violent, there is no way to
predict what an escapee will do when encountered by the
authorities." United States v. Turner, 285 F.3d 909, 915-16 (10th
Cir. 2002).
The great majority of these cases rely on the "powder
keg" rationale of United States v. Gosling:
[E]very 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. A defendant who escapes
from a jail is likely to possess a variety of
supercharged emotions, and in evading those
trying to recapture him, may feel threatened
by police officers, ordinary citizens, or even
fellow escapees. Consequently, violence could
erupt at any time. 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.
39 F.3d 1140, 1142 (10th Cir. 1994)(internal citation omitted).
Winn contends that the "powder keg" rationale unjustifiably ignores
the category of genuinely passive, non-violent walk-away escapes or
failures to return, which he suggests present no greater risk of
violence than any other arrest of a non-violent offender.
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Winn's argument echoes the D.C. Circuit's recent
expression of reluctance to adopt this categorical approach to
escapes:
Arguably, the approach taken by the other
circuits proves too much. While it may be
true that the recapture of an escapee
inherently contains a risk of violent
encounter between the escapee and the
arresting officers, the same is true as to the
capture of any lawbreaker. . . . Therefore, we
are reluctant to adopt the categorical
approach.
United States v. Thomas, 333 F.3d 280, 282 (D.C. Cir. 2003). The
court proceeded to note that "[a] prisoner not returning to a
halfway house or sneaking away from an unguarded position in the
night may not inherently create a risk of harm to others." Id. at
283. In a concurring opinion under ACCA, Judge McKay of the Tenth
Circuit has similarly expressed discomfort with the categorical
approach to escapes, particularly when a state statute defines a
failure to return as a felony escape. United States v. Adkins, 196
F.3d 1112, 1119 (10th Cir. 1999)(McKay, J., concurring)("There is
a quantum difference between the assumptions about the intrinsic
danger of unauthorized departure from actual custody, as in this
case, and of failure to return from authorized departure from
actual custody.").
As discussed above, however, the formal categorical
approach is the well-established method in this Circuit for
determining what constitutes a crime of violence under the
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sentencing guidelines. De Jesús, 984 F.2d at 23. In fact, the
initial enunciation of the "powder keg" rationale in Gosling cited
to this Circuit's holding in De Jesús that larceny from the person
qualifies as a crime of violence under 4B1.2 because it inherently
involves the serious potential risk of injury to others, even
though not every larceny will involve violence. Gosling, 39 F.3d
at 1142 (citing De Jesús, 984 F.2d at 24-25).
The formal categorical approach forecloses the conclusion
that a Class B felony escape under N.H. Rev. Stat. 642:6 does not
present a serious potential risk of physical injury to another.
The New Hampshire statute, while distinguishing escapes effected by
force or with a deadly weapon, does not distinguish among types of
confinement. The Class B felony, thus, covers a category of
escapes that includes both Winn's failure to return from a break at
a halfway house and the prisoner who manages to break out of jail
by stealth. Indeed, the Supreme Court of New Hampshire has noted
that "[t]he all-encompassing definition of 'official custody' in
RSA 642:6 strongly supports an inference that the statute . . . was
intended to govern escapes of all kinds," regardless of the
institution or type of confinement. State v. Perra, 503 A.2d 814,
816 (N.H. 1985). We agree with our sister circuits that "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
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place him in custody." Gosling, 39 F.3d at 1142. Thus, as a
categorical matter, a Class B felony escape under N.H. Rev. Stat.
Ann. 642:6 "involves conduct that presents a serious potential risk
of physical injury to another," U.S.S.G. § 4B1.2(a)(2), and is
properly characterized as a crime of violence for the purposes of
career offender enhancement under the sentencing guidelines. The
district court did not err in sentencing Winn as a career offender.
III. Conclusion
The sentence imposed by the district court is therefore
affirmed.
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