-
07-0308-cr United States v. Mills 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Argued: May 30, 2008 5 Final briefs submitted 6 February 4, 2009 Decided: June 26, 2009) 7 Docket No. 07-0308-cr 8 ------------------------------------- 9 UNITED STATES OF AMERICA, 10 Appellee, 11 - v - 12 GARY MILLS, also known as G KNOCKER, 13 Defendant-Appellant. 14 ------------------------------------- 15 Before: KEARSE, SACK, and LIVINGSTON, Circuit Judges. 16 Appeal from a judgment of conviction of the United 17 States District Court for the District of Connecticut (Peter C. 18 Dorsey, Judge), sentencing defendant-appellant Gary Mills 19 principally to a term of imprisonment of 188 months under the 20 Armed Career Criminal Act,
18 U.S.C. § 924(e). Mills challenges 21 the district court's determination that his prior conviction for 22 escape under Connecticut law is a violent felony for statutory 23 sentencing-enhancement purposes. Based on the Supreme Court's 24 recent decision in Chambers v. United States,
129 S. Ct. 68725 (2009), we conclude that Mills's conviction for escape based on 26 his failure to abide by the terms of his "transitional 1 supervision" was not a violent felony within the meaning of the 2 Armed Career Criminal Act. Mills's sentencing, conducted 3 pursuant to the Act, was therefore improper. 4 Remanded. 5 KAREN L. PECK, Assistant United States 6 Attorney (Kevin J. O'Connor, United 7 States Attorney, District of 8 Connecticut; John H. Durham, Deputy 9 United States Attorney; William J. 10 Nardini, Assistant United States 11 Attorney, of counsel), New Haven, CT, 12 for Appellee. 13 RICHARD S. CRAMER, Hartford, CT, for 14 Appellant. 15 PER CURIAM: 16 Defendant-Appellant Gary Mills appeals from a judgment 17 of conviction of the United States District Court for the 18 District of Connecticut (Peter C. Dorsey, Judge) by which he was 19 sentenced principally to a term of imprisonment of 188 months 20 under the Armed Career Criminal Act ("ACCA"),
18 U.S.C. § 924(e). 21 The ACCA applies to persons who violate
18 U.S.C. § 922(g) and 22 who have "three previous convictions . . . for a violent felony 23 or a serious drug offense, or both."
18 U.S.C. § 924(e)(1). 24 Mills met the first requirement inasmuch as he pled guilty to 25 being a felon in possession of a firearm in violation of 18
26 U.S.C. § 922(g)(1). He argues, however, that he did not have 27 three prior convictions for violent felonies or serious drug 28 offenses, and that he therefore should not have been sentenced 29 under the ACCA. Specifically, Mills asserts that his prior 30 conviction for first-degree escape in violation of Conn. Gen. 2 1 Stat. § 53a-169 should not have been treated as a violent felony 2 within the meaning of the statute. The government concedes that 3 under the Supreme Court's recent decision in Chambers v. United 4 States,
129 S. Ct. 687(2009), the matter should be remanded for 5 resentencing without reference to the ACCA. Because we agree 6 with both Mills and the government that under Chambers, Mills's 7 prior conviction for escape in the first degree was not a violent 8 felony, we remand to the district court to vacate the sentence 9 and to resentence Mills. 10 Mills contends further that his sentence was 11 procedurally unreasonable because the sentencing court failed to 12 address his request for a downward departure. Because we remand 13 for resentencing in any event, we need not and do not resolve 14 this issue. 15 BACKGROUND 16 On February 18, 2003, Mills was indicted on one count 17 of being a felon in possession of a firearm in violation of 18
18 U.S.C. § 922(g)(1). On October 19, 2006, he pled guilty. The 19 United States Probation Office prepared a presentence 20 investigation report ("PSR") recommending that Mills be sentenced 21 under the ACCA because he had three prior convictions for a 22 violent felony or serious drug offense. Mills objected, arguing 23 that one of the three predicate offenses identified in the PSR, 3 1 first-degree escape in violation of Conn. Gen. Stat. § 53a-169, 2 was not a violent felony.1 1 In 1997 the statute provided, in pertinent part: A person is guilty of escape in the first degree (1) if he escapes from a correctional institution or (2) if he escapes from any public or private, nonprofit halfway house, group home or mental health facility or community residence to which he was transferred pursuant to subsection (e) of section 18-100 and he is in the custody of the Commissioner of Correction or is required to be returned to the custody of said commissioner upon his release from such facility or (3) if he escapes from a work detail or school on the premises of the correctional institution or (4) if he fails to return from a furlough . . . or (5) if he fails to return from work release or education release as authorized under sections 18-90a and 18-100 or (6) if he escapes from a hospital for mental illness in which he has been confined . . . or (7) if, while under the jurisdiction of the Psychiatric Security Review Board, but not confined to a hospital for mental illness, he leaves the state without authorization of the board. Conn. Gen. Stat. § 53a-169(a). Connecticut law further provides: If the Commissioner of Correction deems that the purposes of this section may thus be more effectively carried out, the commissioner may transfer any person from one correctional institution to another or to any public or private nonprofit halfway house, group home or mental health facility or, after satisfactory participation in a residential program, to any approved community or private residence. Any inmate so transferred shall remain under the jurisdiction of said commissioner.
Conn. Gen. Stat. § 18-100(e). 4 1 At an evidentiary hearing in the district court, 2 defense counsel established the circumstances of Mills's 3 conviction in state court for first-degree escape. On July 15, 4 1997, Mills was released from prison and placed in "transitional 5 supervision," under which he was authorized to reside in a 6 private residence. By statute, however, he remained under the 7 jurisdiction of the Connecticut Commissioner of Correction, see 8
Conn. Gen. Stat. § 18-100(e), and was required to satisfy 9 conditions similar to those required of parolees, including 10 reporting regularly to a community enforcement officer. 11 On July 16, 1997, the day after his release, Mills 12 reported as scheduled to his community enforcement officer. He 13 was required to do so thereafter on a weekly basis. Following 14 that appointment, however, he failed to appear for the meetings. 15 When Mills missed his next appointment, the enforcement 16 officer attempted to find Mills by visiting the private residence 17 in which he had been authorized to reside. Mills was not there. 18 In light of Mills's continued missed appointments and the 19 officer's continued inability to locate him, Mills was charged 20 with first-degree escape in violation of Conn. Gen. Stat. § 53a- 21 169(a). On June 2, 1998, he was convicted of this crime. The 22 PSR relied on this conviction as a predicate violent felony 23 conviction in recommending that Mills be sentenced under the 24 ACCA. 25 At a sentencing hearing held on January 22, 2007, the 26 district court rejected Mills's objection to the classification 5 1 of this offense as a violent felony for purposes of sentencing 2 him under the ACCA. Employing the "categorical approach," see 3 Taylor v. United States,
495 U.S. 575, 602 (1990), and relying on 4 United States v. Jackson,
301 F.3d 59, 63 (2d Cir. 2002) (holding 5 that escape is categorically a violent felony under the ACCA), 6 the court concluded that it was required to classify Mills's 7 conviction for escape as a violent felony and sentence him 8 accordingly under the ACCA. As a result, the court concluded 9 that the statutory mandatory minimum sentence was 180 months and 10 the advisory sentencing range under the United States Sentencing 11 Guidelines was 188 to 235 months. 12 Defense counsel argued for a below-Guidelines sentence 13 equal to the mandatory minimum, 180 months, based on the non- 14 violent nature of Mills's "escape" and his "extraordinary 15 rehabilitation" while incarcerated prior to sentencing. Mills 16 also filed a sentencing memorandum setting forth two additional 17 grounds for a below-Guidelines sentence: the restrictive 18 conditions of his confinement while in state custody under a 19 federal detainer and "the profound effect upon Mr. Mills during 20 his formative years" of the suicides of his sister and godfather. 21 The district court explicitly discussed the sentencing 22 factors enumerated in
18 U.S.C. § 3553(a). "The credit you are 23 entitled to," the district judge said, "includes an accommodation 24 for the fact that you have manifested a redirection of your 25 life . . . and I think you're entitled to some credit for that, 26 but on the other hand, the seriousness of the offense . . . is 6 1 something I cannot ignore. . . . I am not inclined to think that 2 in reaching for what is a reasonable sentence, that going below 3 the [G]uideline range is warranted." Transcript of January 22, 4 2007, Sentencing Hr'g (page unnumbered); Government Appendix at 5 126-27. The court therefore imposed a sentence of 188 months, 6 which was at the bottom of the Guidelines range and eight months 7 above the mandatory minimum sentence under the ACCA. 8 DISCUSSION 9 I. Applicability of the ACCA 10 A. Standard of Review 11 "We review de novo the district court's determination 12 of whether a prior offense is a 'violent felony' under the ACCA." 13 United States v. Lynch,
518 F.3d 164, 168 (2d Cir. 2008). 14 B. Analysis 15 Mills was convicted in state court of escape in the 16 first degree under Conn. Gen Stat. § 53a-169, the text of which 17 is set forth in the margin at note 1 above. A person is guilty 18 of this crime if, inter alia, he or she "escapes from a 19 correctional institution," Conn. Gen Stat. § 53a-169(a)(1), or 20 "escapes from any public or private, nonprofit halfway house, 21 group home or mental health facility or community residence to 22 which he was transferred pursuant to subsection (e) of section 23 18-100 and he is in the custody of the Commissioner of Correction 24 or is required to be returned to the custody of said commissioner 25 upon his release from such facility," id. at § 53a-169(a)(2). 26 The Connecticut Supreme Court has interpreted "escape" within the 7 1 meaning of Section 53a-169 to mean any "unauthorized departure 2 from, or failure to return to, whatever may be designated as [the 3 defendant's] place of incarceration or confinement." State v. 4 Lubus,
581 A.2d 1045, 1048 (Conn. 1990). 5 "In Taylor[,] . . . the [Supreme] Court endorsed a 6 'categorical approach' to determining whether a prior conviction 7 qualifies as a 'violent felony' under the ACCA. The sentencing 8 court generally must 'look only to the fact of conviction and the 9 statutory definition of the prior offense.'" United States v. 10 Rosa,
507 F.3d 142, 151 (2d Cir. 2007) (quoting Taylor,
495 U.S. 11at 602). But where, as in Taylor, Rosa, and the instant case, 12 "the statutory definition of the state crime of conviction 13 encompasses both crimes that would qualify as a 'violent felony' 14 and crimes that would not, . . . the Taylor Court concluded that 15 a broader inquiry is permissible."
Id.When a statute 16 encompasses both violent and non-violent felonies, as Conn. Gen 17 Stat. § 53a-169 does, we make a limited inquiry into which part 18 of the statute the defendant was convicted of violating. 19 The inquiry is an easy one here. The government 20 concedes that Mills's prior conviction for escape was pursuant to 21 Conn. Gen Stat. § 53a-169(a)(2). The Connecticut Supreme Court 22 has made clear that a violation of this section of the statute is 23 consistent with both an affirmative escape from custody and a 24 mere failure to return. See Lubus, 581 A.2d at 1048 ("We 25 conclude . . . that § 53a-169(a)(2) employs the term 'escape' to 26 contemplate an unauthorized departure from, or failure to return 8 1 to, a 'community residence.'"). Moreover, the government also 2 concedes that, having the burden of proof on the issue, see Rosa, 3
507 F.3d at 151, it "did not establish, pursuant to [Shepard v. 4 United States,
544 U.S. 13, 26 (2005) (limiting court's review to 5 specific documents when deciding under which provision of a 6 statute encompassing both violent and non-violent crimes a 7 defendant was convicted)], that the defendant had been convicted 8 of an affirmative escape from custody rather than a failure to 9 return." Government's Supplemental Letter Br. 2 (Feb. 4, 2009). 10 The government therefore concluded: 11 For this reason, the record would not 12 support, in the wake of Chambers, a 13 conclusion that the defendant had been 14 convicted in state court of an "escape" crime 15 that generically qualifies as a violent 16 felony under § 924(e) . . . . 17 [E]ven the facts outside the scope of 18 Shepard, if they could have been considered, 19 would have narrowed Mills'[s] conviction only 20 to either a failure to report or a walkaway 21 escape from a non-secure facility . . . . 22 [T]he Government concedes that a simple 23 walkaway escape from a nonsecure community 24 residence does not constitute the sort of 25 purposeful, aggressive and violent behavior 26 that is required . . . to constitute a 27 "violent felony" for the purposes of § 28 924(e). 29 Id. at 2-3. 30 We need not address whether a "walkaway escape" is, as 31 the government says, not a violent felony for these purposes 32 under Chambers. Cf. Jackson,
301 F.3d at 63(holding, prior to 33 Chambers, that a walkaway escape is categorically a violent 34 felony). For the purpose of deciding this appeal, it is 9 1 sufficient to note our agreement with the government that after 2 Chambers, a failure to report or failure to return is not a 3 violent felony under the ACCA, and that the government concedes 4 it has not proved -- and cannot prove -- that Mills was convicted 5 of anything more than a failure to return. See Chambers, 129 S. 6 Ct. at 693 ("[W]e conclude that the crime here at issue [failure 7 to report to a penal institution, in violation of Ill. Comp. 8 Stat., ch. 720, § 5/31-6(a)] falls outside the scope of ACCA's 9 definition of 'violent felony.'"); see also id. at 691 ("we 10 believe that a failure to report (as described in the statutory 11 provision's third, fourth, fifth, and sixth phrases)[, including, 12 (3) failing to report to a penal institution, (4) failing to 13 report for periodic imprisonment, (5) failing to return from 14 furlough, (6) failing to return from work and day release,] is a 15 separate crime, different from escape (the subject matter of the 16 statute's first and second phrases)[, including (1) escape from a 17 penal institution and (2) escape from the custody of an employee 18 of a penal institution]"). 19 Mills's sentencing was thus improper, if understandably 20 so. The district court's determination that Mills was an armed 21 career criminal under the ACCA had two effects on his sentencing: 22 (1) it required a mandatory minimum sentence of 180 months under 23
18 U.S.C. § 924(e)(1); and (2) it changed Mills's base offense 24 level from 24 to 33 pursuant to U.S.S.G. § 4B1.4(b)(3)(B), which 25 led to a Guidelines imprisonment range of 188 to 235 months. As 26 noted, the district court sentenced Mills to a term of 188 10 1 months, at the bottom of this range. Because the district 2 court's calculation of the applicable Guidelines range was 3 affected by its determination -- which, in light of Chambers, we 4 now recognize was incorrect -- that Mills was an armed career 5 criminal under the ACCA, we remand to the district court to 6 vacate the sentence and to resentence Mills.2 Cf. United States 7 v. Fagans,
406 F.3d 138, 141 (2d Cir. 2005) ("In many 8 circumstances, an incorrect calculation of the applicable 9 Guidelines range will taint . . . [a sentence that] may have been 10 explicitly selected with what was thought to be the applicable 11 Guidelines range as a frame of reference."). 12 II. Whether Mills's Sentence 13 Was Procedurally Unreasonable 14 We doubt that Mills's sentence was imposed in a 15 procedurally unreasonable manner. See Rita v. United States, 127
16 S. Ct. 2456, 2468 (2007) ("The sentencing judge should set forth 17 [reasoning] enough to satisfy the appellate court that he has 18 considered the parties' arguments and has a reasoned basis for 19 exercising his own legal decisionmaking authority."); see also 20 United States v. Villafuerte,
502 F.3d 204, 210 (2d Cir. 2007) 21 (stating that although "[n]on-frivolous arguments for a 22 non-Guidelines sentence" may require some discussion, "we do not 23 insist that the district court address every argument the 2 We intimate no view as to the appropriate course of action when an improper application of the ACCA does not affect the district court's calculation of the applicable sentencing range. 11 1 defendant has made or discuss every § 3553(a) factor 2 individually"). Inasmuch as we are remanding for resentencing, 3 however, this is not an issue we need resolve. 4 CONCLUSION 5 For the foregoing reasons, we remand to the district 6 court to vacate the sentence and to resentence Mills. 12
Document Info
Docket Number: 07-0308-cr
Filed Date: 6/26/2009
Precedential Status: Precedential
Modified Date: 9/17/2015