United States Court of Appeals
For the First Circuit
No. 09-1334
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL DAVID WILLINGS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin and Selya, Circuit Judges,
and Laplante,* District Judge.
Charles K. Stephenson on brief for appellant.
Paula D. Silsby, United States Attorney, and Margaret D.
McGaughey, Appellate Chief, on brief for appellee.
December 1, 2009
*
Of the District of New Hampshire, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Michael David
Willings challenges his sentence on the ground that the court below
incorrectly designated him as a career offender under USSG
§4B1.1(a). Concluding, as we do, that escape from secure custody
is a crime of violence within the purview of the career offender
guideline, we affirm.
The facts are straightforward. On June 20, 2008, a man
armed with an air pistol held up the Biddeford Savings Bank in
Biddeford, Maine. After threatening the teller, he left with over
$6,000 in cash. Images from the bank's surveillance cameras were
published in local newspapers and aired on television broadcasts.
In due course, the authorities identified and apprehended the
appellant, who confessed.
We fast-forward to August 17, 2008, when the appellant
pleaded guilty to a single-count indictment that charged him with
robbery of a federally insured bank through the use of a dangerous
weapon. See 18 U.S.C. § 2113(a), (d).
At sentencing, the district court made a series of
findings, adumbrated in a presentence investigation report (PSI
Report). Pertinently, the court found the appellant to be a career
offender. Because the offense of conviction carries a 25-year
statutory maximum, 18 U.S.C. § 2113(d), the court set the base
offense level at 34. USSG §4B1.1(b). The court then granted a
three-level reduction for acceptance of responsibility. Id.
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§3E1.1. The total offense level (31), in combination with the
applicable criminal history category (VI),1 yielded a guideline
sentencing range (GSR) of 188-235 months. Id. ch. 5, pt. A
(sentencing table). The court then sentenced the appellant to a
188-month incarcerative term. This timely appeal ensued.
The appeal has a laser-like quality. It requires us to
examine only the career offender designation. That designation
matters; in the absence of career offender status, the appellant's
GSR would be 84-105 months, and his sentence likely would have been
less onerous.
The relevant sentencing guideline instructs that a
defendant qualifies as a career offender if (i) he is 18 years old
or older at the time he commits the offense of conviction; (ii)
that offense is a crime of violence or a controlled substance
offense; and (iii) he has at least two prior felony convictions for
crimes of violence or controlled substance offenses. Id.
§4B1.1(a). The first two conditions are not in dispute; the
appellant's challenge focuses single-mindedly on the third
condition.
We turn, then, to the appellant's criminal record. The
following Maine felonies are germane. First, in September 1993 the
appellant burglarized two dwellings in Cape Elizabeth. He
1
Since the appellant had 21 criminal history points, he would
have been in criminal history category VI regardless of the career
offender designation.
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subsequently pleaded guilty to both burglaries and, on March 15,
1995, received concurrent sentences. Second, in May 1994 the
appellant robbed a gasoline station in Portland and, two days
later, robbed a woman in the same vicinity. He subsequently
pleaded guilty to both robberies and, on March 15, 1995 — the same
day that he was sentenced for the earlier burglaries — received
concurrent sentences. Third, in September 1994 the authorities
charged the appellant with both the crime of escape from the
Cumberland County Jail and the crime of aiding an escape from that
facility. Me. Rev. Stat. Ann. tit. 17-A, §§ 755, 756. The
appellant again pleaded guilty and sentence was again imposed on
March 15, 1995.
For sentencing in the instant case, the district court
grouped the 1993 burglaries and treated them as one predicate
offense and grouped the 1994 robberies and treated them as a second
(and separate) predicate offense. Even though sentences had been
imposed for these four crimes on the same day (March 15, 1995), the
court treated the two sets of crimes as separate predicates based
on a finding that an arrest had intervened after the burglaries but
before the robberies. See USSG §4A1.2(a)(2) (providing that
sentences imposed on the same day cannot be considered as separate
predicate offenses unless the offender is arrested for the first
offense prior to commission of the second offense).
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The court did not stop there. It found, in the
alternative, that even if the burglaries and robberies were treated
as a unit, the career offender designation would still apply
because the escape crime was sufficient to serve as a second
predicate.
In attacking his sentence, the appellant advances two
arguments. First, he says that his escape crime is not a crime of
violence. Second, he says that because the sentencing court used
an unreliable police report as evidence that an arrest intervened
between the 1993 burglaries and the 1994 robberies, it erred in not
grouping the burglaries and the robberies as a single predicate
offense.
We begin our analysis with the appellant's asseveration
that escape is not a crime of violence. This asseveration draws
its essence from two Supreme Court opinions, namely, United States
v. Chambers, 129 S. Ct. 687 (2009), and United States v. Begay, 128
S. Ct. 1581 (2008).2 We review a court's determination of whether
2
Because these cases deal with the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), we pause to note that the terms "crime
of violence" under the career offender guideline and "violent
felony" under the ACCA are nearly identical in meaning, so that
decisions construing one term inform the construction of the other.
United States v. Richards, 456 F.3d 260, 263 n.2 (1st Cir. 2006).
This generality, of course, is not intended to cast doubt on the
narrower scope of burglary offenses included within the guideline's
definition. See United States v. Giggey, 551 F.3d 27, 36 (1st Cir.
2008).
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an offense qualifies as a crime of violence de novo. United States
v. Williams, 529 F.3d 1, 3 (1st Cir. 2008).
A crime of violence within the purview of the career
offender guideline is any offense punishable by more than one year
in prison that either "(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."
USSG §4B1.2(a). Under Maine law, the escape crime at issue here
(Class C escape) is punishable by a sentence of more than one year
in prison. See Me. Rev. Stat. Ann. tit. 17-A, § 1252. But that
crime does not fall within the first specification set out in the
definition, nor is it listed among the exemplar crimes enumerated
in the second specification. This means that we must determine
whether that crime falls under the umbrella of the definition's
"otherwise" clause. The required approach is categorical in
nature. See Begay, 128 S. Ct. at 1584; United States v. Pratt
(Pratt II), 568 F.3d 11, 19 (1st Cir. 2009). This approach entails
consideration of whether the elements of the offense "are of the
type that would justify its inclusion within the residual
provision, without inquiring into the specific conduct of the
particular offender." James v. United States, 550 U.S. 192, 202
(2007). The end game is to determine whether the particular
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category of crime is "roughly similar, in kind as well as in degree
of risk posed," to the enumerated exemplar crimes. Begay, 128 S.
Ct. at 1585. Those exemplar crimes include burglary of a dwelling,
arson, extortion, and use of explosives. See USSG §4B1.2(a).
Until recently, courts considered both escape and failure
to report to be crimes of violence. See, e.g., United States v.
Winn, 364 F.3d 7, 12 (1st Cir. 2004); United States v. Gosling, 39
F.3d 1140, 1142 (10th Cir. 1994). In Chambers, however, the
Supreme Court held that an Illinois failure to report conviction
did not qualify as a violent felony under the ACCA. 129 S. Ct. at
691. In doing so, the Court drew a line between failure to report
offenses and escape offenses, concluding that "[t]he behavior that
likely 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.
This brings us to United States v. Pratt (Pratt I), 496
F.3d 124 (1st Cir. 2007). Relying on Winn, we held there that a
conviction under a statute that criminalized both escapes from
custody and failures to report qualified as a violent felony under
the ACCA without regard to which of those crimes the defendant had
committed. Id. at 130. On an ensuing certiorari petition, the
Supreme Court vacated this decision and remanded the case for
reconsideration in light of Chambers. Pratt v. United States, 129
S. Ct. 991 (2009) (mem.).
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Given the lessons of Chambers, we recognized on remand
that we had to distinguish between escapes and failure to report.
Carrying out this undertaking, we affirmed our earlier decision on
the basis that Pratt's conviction was for escape from secure
custody — an offense that constitutes a violent felony within the
meaning of the ACCA. Pratt II, 568 F.3d at 22. Such an offense,
like the exemplar crimes enumerated in the career offender
guideline, "is likely to cause an eruption of violence if and when
it is detected." Id. Put another way, the offense is "roughly
similar, in kind as well as in degree of risk posed," to those
enumerated crimes. Id. (quoting Begay, 128 S. Ct. at 1585). As a
result, convictions for escape from secure custody are
categorically included as violent felonies without regard to
whether the embedded conduct included actual or threatened physical
force. See id.
This decision foreshadows the proper resolution of the
appellant's claim. Given the parity that exists between the ACCA
and the career offender guideline, see supra note 2, it is clear
that the crime of escape from secure custody is, similarly, a crime
of violence under the career offender guideline. See United States
v. Pearson, 553 F.3d 1183, 1186 (8th Cir. 2009) (noting that
Chambers leaves intact circuit precedent holding that escape from
custody is a crime of violence).
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The trappings here reinforce this conclusion. The Maine
escape statute at issue is materially similar to the New Hampshire
statute at issue in Pratt. Class C escape — the precise crime for
which the appellant was convicted — encompasses both leaving
custody and failing to report. See Me. Rev. Stat. Ann. tit. 17-A,
§ 755(1)(A)-(B); compare N.H. Rev. Stat. Ann. §§ 642:6, 651:24.
As in Pratt, however, the appellant's conviction is indubitably for
escape from custody.
The similarities do not end there. The appellant, like
Pratt, was charged with and convicted of escape from a county jail.
That constitutes an escape from secure custody. Pratt II, 568 F.3d
at 21-22 & n.10. Even in the absence of actual or threatened
force, such an escape requires purposeful and aggressive conduct,
which carries with it a real potential for violence. Id. at 22.
Thus, the crime at issue was neither a form of inaction (like a
failure to report) nor a strict liability crime.
Here, moreover, the appellant was also convicted of
aiding and abetting an escape. This aspect of the charge, while
not necessary to make escape from secure custody a crime of
violence, is significant. Because the appellant aided the escape
of another inmate, the risk of violence was increased. See United
States v. Aragon, 983 F.2d 1306, 1313-14 (4th Cir. 1993)
(explaining that the crime of assisting the escape of one held in
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secure custody intrinsically "presents a substantial risk that
physical force will be used against either people or property").
That effectively ends the matter. Consistent with the
teachings of Begay, Chambers, and Pratt II, we hold that a
conviction for escape from secure custody is a crime of violence
within the meaning of USSG §4B1.2(a). The appellant's conviction
qualifies under this rubric. Thus, the district court properly
considered it as a separate predicate offense for purposes of the
career offender guideline.3
We need go no further. A career offender designation
requires a minimum of two predicate felony convictions for crimes
of violence. Even if the appellant were correct that all of his
burglary and robbery convictions should be treated as a single
predicate offense — a matter on which we take no view — that unit,
plus the escape conviction, satisfies the demands of the career
offender guideline.4
Affirmed.
3
It is undisputed that an intervening arrest occurred between
the 1994 robberies and the appellant's escape from custody on
September 21, 1994. As a result, the crimes should be treated as
separate predicate offenses notwithstanding that sentence was
imposed for them on the same day. See USSG §4A1.2(a)(2).
4
Because this is so, we need not pass upon the separateness
vel non of the burglary and robbery convictions, nor need we
address the reliability of the challenged police report.
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