United States v. Emmanuel Hart ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3395
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E MMANUEL L. H ART,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 344—James B. Zagel, Judge.
A RGUED A PRIL 9, 2008—D ECIDED A UGUST 25, 2009
Before P OSNER, R IPPLE and M ANION, Circuit Judges.
R IPPLE, Circuit Judge. Emmanuel Lewis Hart pleaded
guilty to one count of bank robbery in violation of 18 U.S.C.
§ 2113(a). The district court sentenced him to 156 months’
imprisonment and three years of supervised release
under the career offender Guideline, U.S.S.G. § 4B1.1.
We now vacate Mr. Hart’s sentence and remand his
case to the district court for resentencing in light of this
opinion.
2 No. 07-3395
I
BACKGROUND
On May 13, 2006, Mr. Hart entered a Chicago bank
carrying a small black bag and a robbery note. He handed
a teller the note, which read: “There is a bomb in this bag
give me the 100.00, 50.00, & 20.00 with no dye pack’s & no
cops or I’ll blow this motherf[—]ker up its up to you
if anybody get hurt.” R.15. The teller gave Mr. Hart
$2,400, and he left the bank. On his way out, he set the
black bag on a table; there was no bomb in the bag. The
police apprehended Mr. Hart the same day.
On November 20, 2006, Mr. Hart pleaded guilty to one
count of bank robbery in violation of 18 U.S.C. § 2113(a).
The presentence investigation report (“PSR”) concluded
that Mr. Hart was a career offender under section 4B1.2
of the United States Sentencing Guidelines. This deter-
mination was based on his two prior convictions for
crimes of violence: a bank robbery conviction in 1998
and a conviction for escape in 2005. Applying the
career offender Guideline, the PSR calculated Mr. Hart’s
advisory sentencing range at 151 to 188 months and
recommended a sentence of 168 months. The PSR also
opined that there was no basis for a sentence below
the guidelines range.
Mr. Hart raised two objections to the PSR. He first
argued that his escape conviction was not a crime of
violence because it was a “walkaway” escape; that is, a
non-violent departure from nonsecure custody. The
Government agreed that his escape was of the walkaway
variety. The parties agree that at the time of his escape
No. 07-3395 3
in June 2004, Mr. Hart was serving the last portion of his
sentence for the 1988 bank robbery in a nonsecure half-
way house run by the Salvation Army. One day, he re-
ceived a two-hour pass permitting him to leave the
facility to go shopping at a local grocery store. He
returned late, apparently because he mistakenly be-
lieved he had a four-hour pass. The Salvation Army
required residents who returned late to submit to a
blood test, but rather than do so, Mr. Hart left the facil-
ity. Shortly thereafter, the police found him sleeping on a
park bench and took him back into custody with-
out incident. Based on these facts, Mr. Hart argued at
his sentencing hearing in this case that the escape
should not be treated as a crime of violence for sen-
tencing purposes because it did not create a serious risk
of physical injury to anyone.
Mr. Hart also submitted that a below-guidelines sen-
tence was appropriate in his case because of his long
history of mental illness. Mr. Hart is a diagnosed schizo-
phrenic; symptoms of his illness, including delusions
and auditory hallucinations, began when he was six
years old and continue to this day. Over the years,
Mr. Hart has been treated with various antipsychotic
medications and has participated in several mental
health programs. Prior to sentencing, he was examined
by Dr. Bernard Rubin, a forensic psychiatrist. Dr. Rubin
concluded that Mr. Hart was suffering from moderately
severe schizophrenia at the time of the robbery, and
that he knew his conduct was criminal, but could not
control his behavior because it was driven by “psychotic
and disordered thinking with a resultant lack of judg-
4 No. 07-3395
mental control.” R.45 at 4. Mr. Hart contended at sen-
tencing that a below-guidelines sentence was appro-
priate in his case because he would not receive the neces-
sary psychiatric treatment while he was in prison.
The district court agreed with the PSR’s conclusion that
both Mr. Hart’s bank-robbery and escape convictions
were crimes of violence and that he therefore should be
sentenced as a career offender under U.S.S.G. § 4B1.1.
The court declined to impose a below-guidelines sen-
tence based on Mr. Hart’s mental illness. Although
the district court was convinced that Mr. Hart had legiti-
mate mental problems, it concluded that a below-guide-
lines sentence was not appropriate. Among other
things, the court determined that, because of finan-
cial limitations, Mr. Hart would not receive adequate
psychiatric treatment outside of prison and that he
would continue to present “a danger to himself and a
danger to others.” R. 38 at 11. The court concluded that
it would be best for Mr. Hart and for society if he were
incarcerated for a period of time consistent with his
guidelines range. The court reasoned that prison
would provide Mr. Hart with much-needed structure
and that he would be less of a threat to himself and
others upon release because he would be older. Accord-
ingly, the court sentenced Mr. Hart to a within-guidelines
term of 156 months’ imprisonment, to be followed by
three years of supervised release.
Mr. Hart sought review of his sentence in this court,
challenging both the district court’s classification of his
escape as a crime of violence and its refusal to impose a
No. 07-3395 5
below-guidelines sentence. At the time this appeal was
briefed and argued, our precedent made it clear that
escape was categorically a crime of violence.1 On April 16,
2008, however, the Supreme Court of the United States
issued its decision in Begay v. United States, 128 S. Ct. 1581(2008), which cast doubt on our previous approach for
evaluating whether a particular crime is a crime of vio-
lence. On April 21, the Supreme Court granted certiorari
to review our decision in United States v. Chambers, 473
F.3d 724 (7th Cir. 2007), in which we had held that
failure to report to a penal institution also constitutes
a crime of violence. Then, on September 9, this court
announced its decision in United States v. Templeton, 543
F.3d 378 (7th Cir. 2008). In Templeton, we reconsidered
our previous holdings in light of Begay and concluded
that, contrary to our prior holdings, “walkaway” es-
capes—that is, escapes from nonsecure detention facili-
ties—are not crimes of violence for sentencing purposes.
On November 21, 2008, we issued an order deferring our
decision in this case until after the Supreme Court ren-
dered its decision in Chambers. We also directed the
parties to file supplemental memoranda within twenty
days of the Supreme Court’s decision. The Supreme
Court issued its decision in Chambers v. United States, 129
S. Ct. 687 (2009), on January 13, 2009. The Court
reversed our earlier decision and held that a conviction
1
See United States v. Chambers, 473 F.3d 724 (7th Cir. 2007);
United States v. Golden, 466 F.3d 612, 614-15 (7th Cir. 2006);
United States v. Bryant, 310 F.3d 550, 553-54 (7th Cir. 2002).
6 No. 07-3395
for failure to report under Illinois’ escape statute is not
a crime of violence for sentencing purposes.
The parties in this case have filed their supplemental
memoranda; they agree that Mr. Hart’s sentence should
be vacated and his case remanded for resentencing.2
II
DISCUSSION
Mr. Hart submits that the district court erred in sen-
tencing him as a career offender because it incorrectly
treated his escape conviction as a “crime of violence”
under U.S.S.G. § 4B1.2. He also contends that the district
court failed to address adequately his argument that
a below-guidelines sentence was appropriate in light of
his mental illness.
2
In its supplemental memorandum to the court, the Govern-
ment states:
[T]he government now concedes that in light of the Su-
preme Court’s decision in Chambers, walkaway escapes
no longer qualify as crimes of violence under the Guide-
lines. The government, however, expressly preserves for
future litigation the issue of whether other forms of escape
should continue to be treated as crimes of violence and
violent felonies, to wit, jailbreaks, unauthorized departures
from secure custody or from the presence of a law en-
forcement officer, and other similar forms of criminal
conduct that involve violations of fleeing-and-eluding
statutes.
No. 07-3395 7
The Guidelines prescribe longer sentences for defendants
whose criminal histories qualify them as “career offend-
ers.” Section 4B1.1(a) of the Guidelines defines the term
“career offender” as follows:
A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time the defen-
dant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior
felony convictions of either a crime of violence or
a controlled substance offense.
U.S.S.G. § 4B1.1(a). Section 4B1.2 defines the term “crime
of violence”:
The term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for
a term exceeding one year, that—
(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. Mr. Hart does not dispute that his
offense of conviction in this case, bank robbery, is a
felony and a crime of violence. Nor does he dispute that
his prior bank robbery was a crime of violence. He
takes issue, however, with the district court’s conclusion
8 No. 07-3395
that his escape in 2005 was a crime of violence. Escape is
not one of the crimes enumerated in section 4B1.2; the
question, therefore, is whether it falls within that
section’s “residual clause,” which describes crimes that
“otherwise involve[] conduct that presents a serious
potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2.
At the time Mr. Hart was sentenced, we consistently
had concluded that all escapes, even non-violent ones
such as walkaways and failures to report, were crimes
of violence for purposes of career-offender sentencing.3
We reached this conclusion primarily by reasoning that
all escapes, even walkaways and failures to report,
create a serious potential risk of injury when the escapee
is re-apprehended. We ultimately came to doubt the
wisdom of this conclusion, but, by that point, we
believed that stare decisis required that we follow our
precedent. See Chambers, 473 F.3d at 726 (“We shall
3
See Chambers, 473 F.3d 724 (holding that a walkaway escape
was a violent felony under 18 U.S.C. § 924(e)); Golden, 466
F.3d at 614-15 (holding that a failure to report was a violent
felony under 18 U.S.C. § 924(e)); Bryant, 310 F.3d at 553-54(holding that a failure to report was a crime of violence
under the Guidelines). Much of the case law in this area
has developed in the context of determining what counts as
a “violent felony” for purposes of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e). ACCA “defines ‘violent
felony’ in the same way as § 4B1.2 defines ‘crime of violence,’
and we interpret § 4B1.2 in the same way as § 924(e).”
United States v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008).
No. 07-3395 9
adhere to the precedents for now. But it is an embarrass-
ment to the law when judges base decisions of con-
sequence on conjectures, in this case a conjecture as to the
possible danger of physical injury posed by criminals
who fail to show up to begin serving their sentences or
fail to return from furloughs or to halfway houses.”).
The Supreme Court’s decision in Begay v. United States,
128 S. Ct. 1581 (2008), however, caused us to reconsider
our conclusion that all escapes necessarily are crimes of
violence. In Begay, the Supreme Court clarified that the
residual clause does not cover all crimes that present a
serious risk of injury; rather, it includes only those
crimes that “are roughly similar, in kind as well as in
degree of risk posed,” to the enumerated examples:
burglary, arson, extortion and use of explosives. Id. at
1585. Accordingly, the Court held that, although drunk
driving does create a risk of injury to others, it is not a
violent felony within the meaning of the residual
clause because the crime itself involves conduct that is
fundamentally different in kind from the conduct
involved in crimes like burglary and arson.
In United States v. Templeton, 543 F.3d 378 (7th Cir. 2008),
we revisited our characterization of escape as invariably
a crime of violence. The defendant in Templeton had been
sentenced as a career offender based in part on a prior
conviction for escape in Wisconsin. The defendant urged
us to reconsider our precedent in light of Begay. He
also presented statistical data indicating that 11% to 15%
of escapes involved physical resistance to recapture by
the escapee. Templeton, 543 F.3d at 381. Although we
10 No. 07-3395
rejected the defendant’s contention that those data illus-
trated a low risk of injury to others, we noted that the
data reflected all escapes, not just walkaways. We then
focused on other data indicating that, although escapes
from secure custody produced a significant risk of injury
to guards and civilians, walkaways produced almost
none. Templeton, 543 F.3d at 382. We noted that escapes
from secure custody present a serious risk of physical
confrontation with guards or police, a risk that is very
similar to that presented when someone breaks into
a building to commit burglary. Walkaways from
nonsecure custody and failures to report, on the other
hand, present little or no such risk. Accordingly, we
concluded that walkaway escape should be treated as
a distinct category of crime and should not be considered
a crime of violence for the purposes of section 4B1.2.
Turning to the Wisconsin statute that the defendant
had been convicted of violating, Wis. Stat. § 946.42, we
concluded that it criminalized both categories of es-
cape.4 Because the record did not include the charging
documents for the defendant’s state-law conviction, we
remanded the case to allow the district court to deter-
mine whether the defendant had been charged and con-
4
Section 946.42 of the Wisconsin Statutes criminalizes escape
from custody. It defines “custody” to include both “actual
custody” by the police or correctional personnel and “the
constructive custody of persons placed on supervised release . . .
[or] temporarily outside the institution whether for the
purpose of work, school, medical care, a leave granted under
s. 303.068, a temporary leave or furlough granted to a juvenile,
or otherwise.” Wis. Stat. 946.42.
No. 07-3395 11
victed of a walkaway escape or an escape from secure
custody. If it was a walkaway escape, or if the answer
was not apparent from the charging papers, we directed
the district court not to classify the defendant’s escape
as a crime of violence.
A few months after our decision in Templeton, the
Supreme Court announced its decision in Chambers v.
United States, 129 S. Ct. 687 (2009). In Chambers, the Court
held that failure to report to a penal institution was not
a violent crime for sentencing purposes. In doing so, the
Court applied an approach that was similar to our ap-
proach in Templeton.
The defendant in Chambers had been sentenced as a
career offender based on a conviction for failing to report
to a penal institution in violation of Illinois law.5 The
defendant argued that this conviction should not be
5
The statute at issue in Chambers reads as follows:
§ 31-6. Escape; failure to report to a penal institution or to
report for periodic imprisonment.
(a) A person convicted of a felony . . . or charged with
the conviction of a felony who intentionally escapes
from any penal institution or from the custody of an
employee of that institution commits a Class 2 felony;
however, a person convicted of a felony . . . who know-
ingly fails to report to a penal institution or to report for
periodic imprisonment at any time or knowingly fails
to return from furlough or from work and day release
or who knowingly fails to abide by the terms of home
confinement is guilty of a Class 3 felony.
720 ILCS 5/31-6.
12 No. 07-3395
considered a violent felony for sentencing purposes.
The district court concluded that it was a violent felony
and we affirmed on appeal. The Supreme Court granted
certiorari and reversed. In its decision, the Court began
its review of the case with the Illinois statute, which it
interpreted as actually describing more than one
distinct crime:
The Illinois statute now before us . . . places together
in a single numbered statutory section several dif-
ferent kinds of behavior. It separately describes those
behaviors as (1) escape from a penal institution,
(2) escape from the custody of an employee of a penal
institution, (3) failing to report to a penal institution,
(4) failing to report for periodic imprisonment,
(5) failing to return from furlough, (6) failing to
return from work and day release, and (7) failing to
abide by the terms of home confinement.
...
Unlike the lower courts, we believe that a failure to
report (as described in the statutory provision’s third,
fourth, fifth, and sixth phrases) is a separate crime,
different from escape (the subject matter of the stat-
ute’s first and second phrases), and from the poten-
tially less serious failure to abide by the terms of home
confinement (the subject of the final phrase). The
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. Moreover, the
statute itself not only lists escape and failure to
No. 07-3395 13
report separately (in its title and its body) but also
places the behaviors in two different felony classes
(Class Two and Class Three) of different degrees
of seriousness.
At the same time, we believe the statutory phrases
setting forth various kinds of failure to report (or to
return) describe roughly similar forms of behavior.
Each is characterized by a failure to present oneself
for detention on a specified occasion. All amount to
variations on a single theme. We consequently treat
the statute for ACCA purposes as containing at least
two separate crimes, namely escape from custody on
the one hand, and a failure to report on the other.
Failure to abide by home confinement terms—poten-
tially the least serious of the offenses—is not at issue
here.
Chambers, 129 S. Ct. at 691 (citations omitted). Having
decided that failure to report constitutes a distinct class
of crime under Illinois law, the Court then asked
whether it presented a sufficiently serious risk, and was
similar enough to the enumerated offenses, to qualify as
a violent felony under the residual clause. In making
this determination, the Court was heavily influenced by
a report, published by the United States Sentencing
Commission in November 2008, that compiled data on
federal escape offenses for the previous two years. The
Commission’s data revealed that failures to report
almost never result in a risk of injury to anyone. Out of
160 cases in which a federal prisoner either failed to
report to prison or failed to return from temporary
14 No. 07-3395
release, not a single case resulted in injury or the use of
force, and only five cases, or 3.1 percent, involved posses-
sion of a dangerous weapon. Id. at 693 App. B. In the
Court’s view, this data “strongly support[ed] the
intuitive belief that failure to report does not involve a
serious potential risk of injury.” Id. at 692. The Court also
distinguished the crime of failure to report from the
types of crime specified in the residual clause, noting that
“[c]onceptually speaking, the crime amounts to a form
of inaction, a far cry from the ‘purposeful, violent, and
aggressive conduct’ potentially at issue when an offender
uses explosives against property, commits arson, burgles
a dwelling or residence, or engages in certain forms of
extortion.” Id. at 692 (quoting Begay, 128 S. Ct. at 1586).
Accordingly, the Court reversed our decision and held
that failure to report is not a violent felony for sen-
tencing purposes.
After the Chambers decision, it appeared that a three-
step inquiry was indicated for determining whether a
conviction under a broadly-worded escape statute was
a crime of violence. First, we would look to the language
of the statute to determine whether the statute was divisi-
ble—that is, whether it punished more than one category
of crime. If it did, then we would determine whether any
of the crimes within the scope of the statute was not a
crime of violence as defined in the residual clause. If we
determined that the statute punished one or more non-
violent crimes, we then would determine whether the
crime of which the defendant was convicted fell into one
of the non-violent categories.
No. 07-3395 15
This approach is now foreclosed to us, however. In
United States v. Woods, No. 07-3851, 2009 WL 2382700 (7th
Cir. 2009), we revisited our approach to determining
whether a statute is divisible for career-offender-
sentencing purposes. In Templeton, we had asked
whether the same statute punished two or more distinct
types of conduct. In Woods, however, we repudiated that
approach in favor of a strictly formal approach. Now, a
statute is divisible only if it “expressly identifies several
ways in which a violation may occur.” Woods, slip op. at
14 (emphasis added). Thus, a statute that said “anyone
who escapes from custody, whether by jailbreak, walk-
away, or failure to report, has committed a felony,” would
be treated by this court as divisible,6 while a statute
that simply said “anyone who escapes from custody
has committed a felony” would be treated as indivisible,7
even if the two statutes covered exactly the same range
of conduct.
6
See United States v. Woods, No. 07-3851, 2009 WL 2382700 (7th
Cir. 2009), slip op. at 13 (quoting Nijhawan v. Holder, 129 S. Ct.
2294, 2299 (2009), in which the Supreme Court noted that a
statute that criminalized breaking into a “building, ship, vessel
or vehicle” was divisible for purposes of determining
whether the defendant was convicted of breaking into a
building—a categorically violent crime—or into a vessel—a
categorically non-violent crime).
7
See id. at 11-14 (rejecting Templeton’s holding that the Wis-
consin escape statute, which defined escape as “leav[ing]
custody in any manner without lawful permission or author-
ity,” was divisible for career-offender-sentencing purposes).
16 No. 07-3395
With these considerations in mind, we turn to the
federal escape statute under which Mr. Hart was con-
victed, 18 U.S.C. § 751(a). It reads, in relevant part, as
follows:
Whoever escapes or attempts to escape from the
custody of the Attorney General or his authorized
representative, or from any institution or facility in
which he is confined by direction of the Attorney
General, or from any custody under or by virtue of
any process issued under the laws of the United
States by any court, judge, or magistrate judge, or
from the custody of an officer or employee of the
United States pursuant to lawful arrest, shall, if the
custody or confinement is by virtue of an arrest on
a charge of felony, or conviction of any offense, be
fined under this title or imprisoned not more than
five years, or both . . . .
18 U.S.C. § 751(a). The statute does not define the term
“escape,” but “courts and commentators are in general
agreement that it means absenting oneself from custody
without permission.” United States v. Bailey, 444 U.S. 394,
407 (1980) (collecting sources). It is clear from our cases
that the statute prohibits not only escapes from secure
custody, but also walkaways from nonsecure custody
and failures to report at the end of an authorized period
of freedom. See, e.g., United States v. Rivera, 463 F.3d 598,
600 (7th Cir. 2006) (walkaway); United States v. Bryant,
310 F.3d 550, 552 (7th Cir. 2002) (failure to report).
Thus, the federal escape statute covers a wide range of
conduct, from violent jailbreaks to quiet walkaways to
No. 07-3395 17
passive failures to report. It does not, however,
enumerate explicitly the different ways in which the
statute can be violated. Under Woods, therefore, it is an
indivisible statute. Accordingly, the categorical ap-
proach requires us to determine whether escape under
the federal statute, as a general matter, is “roughly
similar, in kind as well as in degree of risk posed,” to the
crimes of burglary, arson, extortion and use of explosives.
Begay, 128 S. Ct. at 1585. Put another way, we must ask
whether federal escape is an offense “of a type that, by
its nature, presents a serious potential risk of injury to
another.” James v. United States, 550 U.S. 192, 209 (2007).
But what is the “nature” of a crime that can be com-
mitted in so many different ways? In Chambers, the Su-
preme Court took notice of statistics compiled by the
United States Sentencing Commission detailing the
incidence of violence during escapes from federal custody.
Those statistics revealed that prisoners who escaped
from secure custody—what might be called a “jail-
break”—possessed dangerous weapons 31.3% of the
time. Chambers, 129 S. Ct. at 693 App. B. This unquestion-
ably created a significant risk of injury to others. Prisoners
who walked away from nonsecure custody, however,
or failed to report, had weapons only rarely: a mere 2.7%
of the time. Id. Adding all of the escape offenses together
reveals that dangerous weapons were present in about
7% of all escapes. Id. This is, perhaps, not a shockingly
high figure, but neither is it an insignificant one.
We mention these figures not because there is some
statistical cutoff separating violent from non-violent
18 No. 07-3395
crimes—we do not read Chambers to suggest any such
thing—but simply to elucidate the difficulties inherent in
attempting to ascribe a single violent or non-violent
“nature” to crimes committed under such a broadly
applicable statute. In this case, however, it is enough
to note that, unlike the offenses enumerated in section
4B1.2 of the Guidelines, one can commit escape under
the federal statute without putting oneself, or anyone
else, in harm’s way. Burglary of a dwelling requires the
perpetrator to enter the home of another person; if
that person happens to be home, or to come home, a con-
frontation is likely. Arson requires the perpetrator to set
fire to a building, creating a grave risk to anyone who
might be in, or near, the building. By contrast, one can
commit “escape” under the federal statute simply by
staying home on the day one is supposed to surrender.
Accordingly, we hold that a violation of 18 U.S.C. § 751(a),
as a categorical matter, is not a crime of violence under
the Sentencing Guidelines. Mr. Hart’s sentence there-
fore must be vacated and his case remanded for
resentencing by the district court.8
8
Because we are remanding Mr. Hart’s case for resentencing,
we need not address his argument that his original sentence
was unreasonable.
No. 07-3395 19
Conclusion
Accordingly, we vacate Mr. Hart’s sentence and
remand his case to the district court for proceedings
consistent with this opinion.
V ACATED AND R EMANDED
8-25-09