United States v. Michael Helmick , 424 F. App'x 373 ( 2011 )


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  •      Case: 10-50579 Document: 00511473935 Page: 1 Date Filed: 05/11/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    May 11, 2011
    No. 10-50579                         Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    MICHAEL WAYNE HELMICK,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 7:09-CR-333-1
    Before REAVLEY, GARZA, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Appellant Michael Wayne Helmick pleaded guilty to being a convicted
    felon in possession of a firearm, in violation of 
    18 U.S.C. § 922
    (g). At Helmick’s
    sentencing, the District Court enhanced Helmick’s sentence pursuant to the
    Armed Career Criminal Act, which imposes a 15-year mandatory minimum
    prison sentence on a person convicted under § 922(g)(1) if the person has “three
    previous convictions . . . for a violent felony or a serious drug offense, or both,
    committed on occasions different from one another[.]” § 924(e)(1). The District
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    Case: 10-50579 Document: 00511473935 Page: 2 Date Filed: 05/11/2011
    No. 10-50579
    Court classified Helmick’s 1998 Utah conviction for the third degree felony of
    Escape from Custody as a violent felony.         Helmick appeals the sentence
    enhancement based on that conviction. We affirm.
    We review de novo the District Court’s determination that the Utah escape
    statute under which Helmick was convicted qualifies as a crime of violence for
    the purposes of the Act. United States v. Harrimon, 
    568 F.3d 531
    , 533 (5th Cir.
    2009). In order for a crime to be considered a violent felony under the Act, it
    must first be a “crime punishable by imprisonment for a term exceeding one
    year,” and not be classified by the state as a misdemeanor. §§ 921(a)(20);
    924(e)(2)(B). Utah classifies its escape statute as a felony, and even the third
    degree version of the felony may be punishable by up to five years. U TAH C ODE
    76-3-203(3) (1998).
    Next, the crime for which Helmick was convicted must either: (i) “ha[ve]
    as an element the use, attempted use, or threatened use of physical force against
    the person of another,” or (ii) be “burglary, arson, or extortion, involve[] use of
    explosives, or otherwise involve[] conduct that presents a serious potential risk
    of physical injury to another.” § 924(e)(2)(B). Helmick’s conviction for escape
    falls into the second option. The 1998 version of the Utah statute reads in
    relevant part: “A prisoner is guilty of escape if he leaves official custody without
    authorization.” U TAH C ODE § 76-8-309(1) (1998). An escape from police custody
    without the use of a dangerous weapon or causing serious bodily injury to
    another is classified as a third degree felony. § 76-8-309(2)-(5) (1998). The Utah
    escape statute defines “official custody” as “arrest, whether with or without
    warrant, or confinement in a state prison, jail, institution for secure confinement
    of juvenile offenders, or any confinement pursuant to an order of the court or
    sentenced and committed and the sentence has not been terminated or voided
    or the prisoner is not on parole.” § 76-8-309(7)(b) (1998).
    2
    Case: 10-50579 Document: 00511473935 Page: 3 Date Filed: 05/11/2011
    No. 10-50579
    Crimes falling under subsection (ii) of the Act are “crimes that are roughly
    similar, in kind as well as in degree of risk posed, to the examples themselves.”
    Begay v. United States, 
    553 U.S. 137
    , 143, 
    128 S. Ct. 1581
    , 1585 (2008). “The
    listed crimes all typically involve purposeful, ‘violent,’ and ‘aggressive’ conduct.”
    
    Id.
     at 144–45, 
    128 S. Ct. at 1586
    . In determining whether the Utah escape
    statute under which Helmick was charged is a violent felony, we look to whether
    the offense of escape from custody—not from a place of confinement and not
    involving use of a deadly weapon or harm to another—is generally purposeful,
    violent and aggressive, rather than at the specific facts of Helmick’s case. 
    Id. at 141
    , 
    128 S. Ct. at 1584
    . The purposeful, aggressive, and violent nature inherent
    in the act of fleeing the custody of a police officer covered by the Utah statute
    qualifies as a crime of violence under § 924. See United States v. Hughes, 
    602 F.3d 669
    , 677 (5th Cir. 2010) (“[E]scape 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.”); Harrimon, 
    568 F.3d at 536
     (“[W]e think that, in the typical case, an offender fleeing from an
    attempted stop or arrest will not hesitate to endanger others to make good his
    or her escape.”).
    AFFIRMED.
    3
    

Document Info

Docket Number: 10-50579

Citation Numbers: 424 F. App'x 373

Judges: Reavley, Garza, Southwick

Filed Date: 5/11/2011

Precedential Status: Non-Precedential

Modified Date: 10/19/2024