United States v. Jordon Simmons , 782 F.3d 510 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10459
Plaintiff-Appellee,
DC No.
v. 1:10 cr-0789
JMS
JORDON SIMMONS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted
October 8, 2014—University of Hawaii William S.
Richardson School of Law
Honolulu, Hawaii
Filed April 3, 2015
Before: A. Wallace Tashima, Johnnie B. Rawlinson,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Tashima
2 UNITED STATES V. SIMMONS
SUMMARY*
Criminal Law
Vacating a sentence for drug and firearm offenses, the
panel held that the defendant’s prior conviction for second
degree escape in violation of Hawaii Revised Statutes § 710-
1021 was not a “crime of violence” under the career offender
guideline U.S.S.G. § 4B1.1(a).
The panel held that because § 710-1021 includes both
active and passive forms of escape, the district court properly
concluded that a conviction under that statute is not a
categorical crime of violence.
The panel applied Descamps v. United States, 133 S. Ct.
2276 (2013), which was decided after sentencing in this case,
to address whether the modified categorical approach can be
applied to determine whether the defendant’s conviction
qualifies as a crime of violence. The panel assumed, without
deciding, that § 710-1021 is, as agreed by the parties,
divisible into three separate crimes. The panel also accepted,
as the parties agreed, that application of the modified
categorical approach demonstrates that the defendant was
convicted of the “escape from custody” version of the crime.
The panel rejected the government’s argument that escape
from custody may be further subdivided into three additional,
distinct offenses. Comparing the elements of the crime of
conviction with the elements of the generic crime, the panel
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. SIMMONS 3
held that the crime of escape from custody is not a crime of
violence under § 4B1.1(a) because it does not have as an
element the use, attempted use, or threatened use of force; it
is not burglary, arson, or extortion; it does not involve the use
of explosives; it does not present a serious potential risk of
physical injury to another; and the risk involved in the offense
is not roughly similar, in kind or in degree of risk posed, to
any of the enumerated offenses set forth in U.S.S.G.
§ 4B1.2(a).
COUNSEL
Peter C. Wolff, Jr. (argued), Federal Public Defender,
Honolulu, Hawaii, for defendant-appellant.
Florence T. Nakakuni, United States Attorney, Jonathan M.
F. Loo (argued), Assistant U.S. Attorney, Honolulu, Hawaii,
for plaintiff-appellee.
OPINION
TASHIMA, Circuit Judge:
Appellant Jordan Simmons (“Simmons”) appeals from the
judgment of the district court sentencing him to 168 months’
imprisonment. He contends that the district court erred in
sentencing him as a career offender because it erroneously
concluded that his prior conviction for second degree escape
in violation of Hawaii Revised Statutes § 710-1021 was a
“crime of violence” as that term is defined by U.S.
Sentencing Guidelines (“Sentencing Guidelines” or
4 UNITED STATES V. SIMMONS
“U.S.S.G.”) § 4B1.1(a). We agree. We therefore vacate
Simmons’ sentence and remand for resentencing.
I.
Simmons pleaded guilty, without a plea agreement, to six
drug and firearm offenses. He was sentenced to 204 months’
imprisonment, followed by four years of supervised release.1
Simmons’ sentence was based, in part, on the district court’s
determination that Simmons was a “career offender” under
U.S.S.G. § 4B1.1(a). Application of the career offender
guidelines raised Simmons’ criminal history category from
category III to category VI, which increased his advisory
Guidelines sentencing range from 135–168 months’
imprisonment to 188–235 months’ imprisonment.
U.S.S.G. § 4B1.1 provides, in relevant part, that “[a]
defendant is a career offender if . . . 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).
Simmons had previously been convicted in Hawaii state court
of one count of second degree assault, in violation of Hawaii
Revised Statutes § 707-711, and one count of second degree
escape, in violation of Hawaii Revised Statutes § 710-1021.
The district court concluded that both prior convictions were
“crimes of violence” under § 4B1.1(a). Simmons timely
1
This sentence was subsequently reduced to 168 months’ imprisonment
pursuant to the government’s motion under Fed. R. Crim. P. 35(b), based
on Simmons’ substantial assistance in the prosecution of another. This
sentence reduction does not affect our analysis of the issue before us.
UNITED STATES V. SIMMONS 5
appealed, asserting that his second degree escape conviction
is not a “crime of violence.”2
II.
We review de novo a district court’s determinations under
the Sentencing Guidelines, including the district court’s
assessment of whether a prior conviction qualifies as a “crime
of violence.” See United States v. Gomez, 757 F.3d 885,
891–92 (9th Cir. 2014).
III.
28 U.S.C. § 994(h) “directs the [Sentencing] Commission
to ‘assure’ that the guidelines specify a sentence ‘at or near’
the statutory maximum” for career offenders. United States
v. Stewart, 761 F.3d 993, 996 (9th Cir. 2014) (quoting
28 U.S.C. § 994(h)). “Carrying out this mandate, the
Commission promulgated the career offender guidelines,
which categorize an adult defendant as a ‘career offender’
when the defendant (1) is convicted of ‘a felony that is either
a crime of violence or a controlled substance offense’ and
(2) ‘has at least two prior felony convictions of either a crime
of violence or a controlled substance offense.’” Id. at 996–97
(quoting U.S.S.G. § 4B1.1(a)).
To determine whether a “prior felony conviction”
qualifies as a crime of violence under § 4B1.1(a), we apply
“the ‘categorical approach’ and ‘modified categorical
approach’ set forth in Taylor v. United States, 495 U.S. 575(1990).” United States v. Lee, 704 F.3d 785, 788 (9th Cir.
2
Simmons does not dispute that his second degree assault conviction is
a crime of violence.
6 UNITED STATES V. SIMMONS
2012). Under this approach, “we look only to the statute of
conviction,” and “compare the elements of the statutory
definition of the crime of conviction with a federal definition
of the crime to determine whether conduct proscribed by the
statute is broader than the generic federal definition.” Id.(citation and internal quotation marks omitted). “If the
statute of conviction ‘sweeps more broadly than the generic
crime, a conviction under that law cannot count as a
qualifying predicate, even if the defendant actually
committed the offense in its generic form.’” United States v.
Caceres-Olla, 738 F.3d 1051, 1054 (9th Cir. 2013) (quoting
Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)
(brackets omitted)). If the statute of conviction is not a
categorical crime of violence, sentencing courts may, in a
“narrow range of cases,” apply the “modified categorical
approach,” and “look beyond the statutory elements to the
charging paper and jury instructions to determine whether the
defendant’s conviction necessarily involved facts
corresponding to the generic federal offense.” Id. at 1054 n.2
(quoting Descamps, 133 S. Ct. at 2283–84) (internal
quotation marks omitted)).
A.
Because § 710-1021 includes both active and passive
forms of escape, the district court properly concluded that a
conviction under that statute is not a categorical crime of
violence. See Chambers v. United States, 555 U.S. 122,
126–27 (2009).3 It then proceeded to apply the modified
3
Although Chambers considered whether a defendant’s prior crime of
conviction was a “violent felony” for purposes of the Armed Career
Criminal Act (“ACCA”), we make no distinction between the terms
“violent felony,” as that term is defined in the ACCA, and “crime of
UNITED STATES V. SIMMONS 7
categorical approach and, after reviewing Simmons’ state
court plea colloquy (among other documents), concluded that
Simmons’ crime, as committed, constituted a crime of
violence. Specifically, the district court relied upon
Simmons’ admission that he “ran away from a police car” to
conclude that this prior offense created a serious risk of
injury; therefore, that it was a crime of violence under the
modified categorical approach.
At the time of Simmons’ sentencing, the district court’s
application of the modified categorical approach was correct
under our then-controlling decision, United States v. Aguila-
Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc),
abrogated by Descamps, 133 S. Ct. at 2286–91. In Aguila-
Montes de Oca, we held that, in applying the modified
categorical approach, sentencing courts may “look beyond the
statute of conviction to determine whether the facts proven at
trial or admitted by the defendant as part of his guilty plea
establish that the defendant was convicted of all of the
elements of the relevant federal generic offense.” Sanchez-
Avalos v. Holder, 693 F.3d 1011, 1014–15 (9th Cir. 2012)
(citing Aguila-Montes de Oca, 655 F.3d at 921). If the prior
conviction “necessarily rested” on certain facts, and those
facts “satisf[ied] the elements of the generic offense,” then
the prior conviction was a qualifying offense. Aguila-Montes
de Oca, 655 F.3d at 936. The district court applied this
methodology here because Simmons’ prior conviction
“necessarily rested” on his escape from a police car, and
violence,” as that term is defined in the Sentencing Guidelines. See
United States v. Crews, 621 F.3d 849, 852 n.4 (9th Cir. 2010). Cases
addressing the ACCA’s violent felony provision are, therefore, relevant
to assessing whether a crime qualifies as a crime of violence under the
Sentencing Guidelines. See id.8 UNITED STATES V. SIMMONS
because the act of escaping from a police car satisfied the
generic definition of a “crime of violence” under Aguila-
Montes de Oca, the district court held that Simmons’ second
degree escape conviction was a crime of violence under
U.S.S.G. § 4B1.1(a).
As part of our decision in Aguila-Montes de Oca, we
concluded that the modified categorical approach applied not
only to “divisible” statutes – that is, statutes that “list[]
multiple, alternative elements, and so effectively create[]
several different . . . crimes,” Descamps, 133 S. Ct. at 2285(citation and internal quotation marks omitted) – but also to
“indivisible” statutes – that is, statutes that set forth “a single,
indivisible set of elements,” id. at 2286. Aguila-Montes de
Oca, 655 F.3d at 926. We reasoned that “[t]he only
conceptual difference between a divisible statute and a non-
divisible statute is that the former creates an explicitly finite
list of possible means of commission, while the latter creates
an implied list of every means of commission that otherwise
fits the definition of a given crime.” Aguila-Montes de Oca,
655 F.3d at 927. To illustrate our point, we provided the
following example: “[A] statute that requires use of a
‘weapon’ is not meaningfully different from a statute that
simply lists every kind of weapon in existence. Using the
word ‘weapon’ as an element is not analytically different
from creating a list of all conceivable weapons (‘gun, axe,
sword, baton, slingshot, knife, machete, bat,’ and so on).” Id.After Simmons was sentenced, however, the Supreme
Court abrogated this approach in Descamps. There, the Court
clarified that the modified categorical approach could only be
employed if the statute of conviction was divisible, and that
the modified categorical approach had “no role to play” for
indivisible statutes. 133 S. Ct. at 2285. The modified
UNITED STATES V. SIMMONS 9
categorical approach could only be applied to divisible
statutes, the Court held, because it was an “elements-based
inquiry.” Id. at 2287. As the Court explained, “when a state
statute punishes a broader range of conduct than a federal,
generic crime, ‘only divisible statutes enable a sentencing
court to conclude that a jury (or judge at a plea hearing) has
convicted the defendant of every element of the generic
crime.’” Rendon v. Holder, 764 F.3d 1077, 1085 (9th Cir.
2014) (quoting Descamps, 133 S. Ct. at 2290). “That is
because ‘a prosecutor charging a violation of a divisible
statute must generally select the relevant element from its list
of alternatives. And the jury, as instructions in the case will
make clear, must then find that element, unanimously and
beyond a reasonable doubt.’” Id. (quoting Descamps, 133 S.
Ct. at 2290 (brackets omitted)).
By contrast, a conviction of an indivisible statute carries
no such requirement of jury unanimity. See id. (“While the
jury faced with a divisible statute must unanimously agree on
the particular offense of which the petitioner has been
convicted (and thus, the alternative element), the opposite is
true of indivisible statutes; the jury need not so agree.”).
Thus, our conclusion that “a statute that requires use of a
‘weapon’ is not meaningfully different from a statute that
simply lists every kind of weapon in existence,” Aguila-
Montes de Oca, 655 F.3d at 927, was incorrect. As the
Supreme Court explained: “As long as the statute itself
requires only an indeterminate ‘weapon,’ that is all the
indictment must (or is likely to) allege and all the jury
instructions must (or are likely to) mention. And, most
important, that is all the jury must find to convict the
defendant.” Descamps, 133 S. Ct. at 2290. Moreover, “even
if in many cases, the jury could have readily reached
consensus on the weapon used, a later sentencing court
10 UNITED STATES V. SIMMONS
cannot supply the missing judgment.” Id. As we have
subsequently observed:
Descamps held that indivisible statutes are
indivisible precisely because the jury need not
agree on anything past the fact that the statute
was violated. As long as the defendant’s
conduct violates the statute, the jury can
disagree as to how, and a later sentencing
court cannot conclude that the jury in fact
agreed on the particular means of
commission.
Rendon, 764 F.3d at 1085.
Properly understood, then, the purpose of the modified
categorical approach is not to determine – as the district court
did here – whether a crime as committed constitutes a crime
of violence, but rather “to identify, from among several
alternatives, the crime of conviction so that the court can
compare it to the generic offense.” Descamps, 133 S. Ct. at
2285. If the statute under which the defendant is convicted is
divisible, the modified categorical approach permits
sentencing courts to consult a limited set of documents
(including the charging documents and jury instructions) to
determine which alternative form of the offense the defendant
committed. Id. at 2281. Once this analysis is complete, the
sentencing court “can then do what the categorical approach
demands: compare the elements of the crime of conviction
(including the alternative element used in the case) with the
elements of the generic crime.” Id. “If the elements of the
statutory alternative under which the defendant was convicted
are broader than the generic crime, the prior conviction
‘cannot count as a qualifying predicate.’” United States v.
UNITED STATES V. SIMMONS 11
Quintero-Junco, 754 F.3d 746, 751 (9th Cir. 2014) (quoting
Descamps, 133 S. Ct. at 2283 (brackets omitted)).
B.
The parties agree that the district court’s approach was
erroneous in light of Descamps. They disagree, however,
whether, after Descamps, Simmons’ second degree escape
conviction qualifies as a crime of violence under the modified
categorical approach. Because we may “affirm the district
court’s sentencing decision on any basis supported by the
record,” United States v. Polanco, 93 F.3d 555, 566 (9th Cir.
1996), we must address whether, after Descamps, the
modified categorical approach can be applied to Hawaii
Revised Statutes § 710-1021 in order to determine whether it
qualifies as a “crime of violence” under U.S.S.G. § 4B1.1(a).
1.
Section 710-1021 provides, in relevant part, that “[a]
person commits the offense of escape in the second degree if
the person intentionally escapes from a correctional or
detention facility or from custody.” Haw. Rev. Stat. § 710-
1021(1). The parties agree that the statute is divisible into
three distinct offenses: (1) escape from a correctional
facility; (2) escape from a detention facility; and, (3) escape
from custody. The parties further agree that, when the statute
is so subdivided, Simmons was convicted of the third version:
escape from custody. Because, as we discuss below, the
crime of escape from custody is not a crime of violence under
§ 4B1.1(a), we assume, without deciding, that § 710-1021 is
divisible into the three crimes agreed upon by the parties.
12 UNITED STATES V. SIMMONS
Perhaps anticipating our conclusion that the crime of
escape from custody does not qualify as a crime of violence
under § 4B1.1(a), the government argues that escape from
custody may be further subdivided into three additional,
distinct offenses. The government points to Hawaii Revised
Statutes § 710-1000(3), which defines “custody” as “restraint
by a public servant pursuant to arrest, detention, or order of
a court.” Haw. Rev. Stat. § 710-1000(3) (emphasis added).
Relying on this definition, the government argues that the
crime of escape from custody can be further subdivided into
three separate crimes: (1) escape from restraint by a public
servant pursuant to arrest; (2) escape from detention; and
(3) escape from order of a court.
We find this argument unavailing. Indeed, we recently
rejected an almost identical argument in United States v.
Cabrera-Gutierrez, 756 F.3d 1125 (9th Cir. 2014) as
amended. In Cabrera-Gutierrez, we considered whether an
Oregon sexual abuse statute was divisible. Id. at 1135. The
statute at issue provided that a person commits sexual abuse
in the second degree “when that person subjects another
person to [certain sexual acts] and the victim does not consent
thereto.” Id. at 1133 (quoting Or. Rev. Stat. § 163.425). The
government there asserted that the statute was divisible
because another section of the state’s criminal code listed
four types of legal incapacity to consent. See id. at 1135
(citing Or. Rev. Stat. § 163.315). According to the
government, “the listing of several alternative modes of non-
consent in Or. Rev. Stat. § 163.315 render[ed] Or. Rev. Stat.
§ 163.425 divisible.” Id. (internal quotation marks omitted).
We rejected this contention “for the simple reason that
[the defendant] was convicted of violating § 163.425, not
§ 163.315.” Id. We explained that, “under Descamps, what
UNITED STATES V. SIMMONS 13
must be divisible are the elements of the crime, not the mode
or means of proving an element,” id. at 1137 n.16, and that,
“[t]o constitute an element of a crime, the particular factor in
question needs to be a constituent part of the offense that
must be proved by the prosecution in every case to sustain a
conviction under a given statute.” Id. at 1135 (quoting United
States v. Beltran-Munguia, 489 F.3d 1042, 1045 (9th Cir.
2007) (internal quotation marks and brackets omitted)).
Because, under Oregon law, none of the four modes set forth
in § 163.315 needed to be proven in order to sustain a
conviction under § 163.425, none was an element of the
crime of sexual assault. Id. Accordingly, we concluded that
§ 163.425 was not divisible. Id.
Here, as in Cabrera-Gutierrez, we reject the
government’s argument for the simple reason that Simmons
was convicted for violating § 710-1021, not § 710-1000(3).
There is no support for the government’s argument that
§ 710-1000(3) sets forth “elements” that the prosecution must
prove in order to sustain a conviction under § 710-1021:
Hawaii law makes clear that none of the three “modes” of
custody set forth in § 710-1000(3) needs to be proven in order
to convict a defendant of second degree escape. See, e.g.,
State v. Smith, 583 P.2d 337, 343 (Haw. 1978) (concluding
that the custody element of escape was satisfied when the
defendant was released on furlough and legally bound by the
restrictions of the furlough). Accordingly, none of the modes
of custody set forth in § 710-1000(3) is an element of the
crime of escape from custody. See Cabrera-Gutierrez,
756 F.3d at 1135.
Moreover, the government’s position is directly contrary
to the Supreme Court’s reasoning in Descamps. Under
Hawaii law, the only thing that a “jury must find to convict
14 UNITED STATES V. SIMMONS
the defendant” of second degree escape is that the defendant
was in custody. Descamps, 133 S. Ct. at 2290. Hawaii
“juries are not instructed that they must agree unanimously
and beyond a reasonable doubt on whether the defendant”
escaped from restraint by a public servant pursuant to arrest,
detention, or order of a court; “rather, it is enough that each
juror agree only that one of the [three] occurred, without
settling on which.” Rendon, 764 F.3d at 1087 (quoting
United States v. Royal, 731 F.3d 333, 341 (4th Cir. 2013)
(internal quotation marks omitted)); see State v. Nakoa,
817 P.2d 1060, 1065 (Haw. 1991) (affirming a trial court’s
use of a jury instruction that read, “[u]nder our law ‘custody’
means restraint by a public servant pursuant to arrest or
detention.” (emphasis added)). Because § 710-1021 “requires
the jury to find only” that the defendant was in custody, the
“jurors need not all agree on whether the defendant” was
being restrained pursuant to arrest, detention, order of a court,
or some other form of custody. Descamps, 133 S. Ct. at
2290. And, because the jury need not find “unanimously and
beyond a reasonable doubt” which mode of custody a
defendant escaped in order to sustain a conviction under
§ 710-1021, under Descamps, the crime of “escape from
custody” is not divisible. Id.
In sum, while we accept the parties’ agreement that
§ 710-1021 is divisible into three separate crimes, we reject
the government’s entreaty further to subdivide the crime of
“escape from custody.” To do so would violate both the
holding and reasoning of Descamps.
2.
Although we reject the government’s argument that the
crime of “escape from custody” is divisible, our inquiry is not
UNITED STATES V. SIMMONS 15
at its end. As we noted above, the parties agree, and we
accept, that § 710-1021 is divisible into three distinct offenses
(escape from a correctional facility, escape from a detention
facility, and escape from custody). Moreover, the parties
agree, and we accept, that application of the modified
categorical approach demonstrates that Simmons was
convicted of the “escape from custody” version of the crime.
In order to determine whether the crime of “escape from
custody” is a “crime of violence” as that term is defined in
§ 4B1.1(a), we must now “do what the categorical approach
demands: compare the elements of the crime of conviction
(including the alternative element used in the case) with the
elements of the generic crime.” Descamps, 133 S. Ct. at
2281.
An offense is a “crime of violence” under the Sentencing
Guidelines if it is “punishable by imprisonment for a term
exceeding one year” and is an offense 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(a). The offense of escape from custody
does not have as an element the use, attempted use, or
threatened use of force; it is not burglary, arson, or extortion;
and it does not involve the use of explosives. See Haw. Rev.
Stat. § 710-1021. Thus, the crime of escape from custody can
16 UNITED STATES V. SIMMONS
qualify as a crime of violence only if it falls into the last
clause – the so-called “residual” or “catchall” provision – of
U.S.S.G. § 4B1.2(a)(2). See United States v. Piccolo,
441 F.3d 1084, 1086 (9th Cir. 2006).
To qualify as a crime of violence under the residual clause
of § 4B1.2(a), two criteria must be satisfied. “First, the
‘conduct encompassed by the elements of the offense, in the
ordinary case,’ must ‘present[] a serious potential risk of
physical injury to another.’” United States v. Park, 649 F.3d
1175, 1177–78 (9th Cir. 2011) (quoting James v. United
States, 550 U.S. 192, 208 (2007)) (alteration in original).
Second, the prior offense must be “‘roughly similar, in kind
as well as in degree of risk posed’ to those offenses
enumerated at the beginning of the residual clause – burglary
of a dwelling, arson, extortion, and crimes involving
explosives.” Id. at 1178 (quoting Begay v. United States,
553 U.S. 137, 143 (2008)). The crime of escape from
custody satisfies neither criterion.
First, the crime of escape from custody does not “present
a serious potential risk of [physical] injury to another.”
James, 550 U.S. at 208. In order to sustain an escape from
custody conviction, the prosecution must prove two elements
beyond a reasonable doubt: first, that the defendant escaped
from custody; and second, that he or she did so intentionally.
Haw. Crim. Jury Instr. § 12.04; see also Haw. Rev. Stat.
§ 710-1021; Smith, 583 P.2d at 342. Proving that a defendant
“escape[d] from custody” “does not require proof of any
actual or potential risk of harm to others for a conviction.”
United States v. Jennings, 515 F.3d 980, 992 (9th Cir. 2008).
State law makes clear that a defendant may violate § 710-
1021 in a way that poses no risk of physical injury to others.
See Smith, 583 P.2d at 342. For example, a defendant may be
UNITED STATES V. SIMMONS 17
convicted of escape from custody based on his “intentional
failure to return to physical confinement.” Id.; see also id. at
340 (affirming a defendant’s conviction for escape from
custody when he left the youth correctional facility at which
he was confined on a pass that allowed him to remain off the
facility from 8 a.m. to 7 p.m. and did not return until 3:30
a.m.). Because Simmons “could have been convicted on the
basis of conduct that did not present a serious potential risk
of physical injury to another,” his offense cannot be classified
as a “crime of violence.” United States v. Kelly, 422 F.3d
889, 893 (9th Cir. 2005); see also Chambers, 555 U.S. at127–30 (noting that failure to report is not a violent felony
under the ACCA because it does not involve the risk of
physical harm inherent in active escapes); Piccolo, 441 F.3d
at 1089–90 (holding that escape is not categorically a crime
of violence because it can be effectuated in ways that do not
pose a danger to others, such as failure-to-report).
Moreover, the risk involved in the offense of escape from
custody is not roughly similar, in kind or in degree of risk
posed, to any of the enumerated offenses set forth in U.S.S.G.
§ 4B1.2(a). See Park, 649 F.3d at 1178. First, the risk
involved in the crime of escape from custody is not similar in
kind to burglary, arson, extortion, or the use of explosives.
Unlike arson or the use of explosives, the crime of escape
from custody does not necessarily involve the “intentional
release of a destructive force dangerous to others.” Sykes v.
United States, 131 S. Ct. 2267, 2273 (2011). Unlike burglary,
the crime of escape from custody does not involve the
“invasion of victims’ homes or workplaces” and the attendant
risks of confrontation that inhere in those invasions. See
James, 550 U.S. at 225–26 (quoting Taylor, 495 U.S. at 581);
see also United States v. Chandler, 743 F.3d 648, 654 (9th
Cir. 2014) (“The real danger of burglary, like robbery, is ‘the
18 UNITED STATES V. SIMMONS
possibility of a face-to-face confrontation’ with the victim or
an intervener.” (quoting James, 660 U.S. at 203)). Finally,
unlike extortion, the crime of escape from custody does not
include “the wrongful use of force, fear, or threats.”
Chandler, 743 F.3d at 654 (quoting Scheidler v. Nat’l Org.
for Women, Inc., 537 U.S. 393, 409 (2003)). Accordingly,
the crime of escape from custody is not similar in kind to any
of the enumerated offenses.
Nor does the crime of escape from custody pose a similar
degree of risk as those crimes enumerated in § 4B1.2(a). As
noted above, escape from custody can be completed in a
manner that poses no risk of physical injury to others. See
Smith, 583 P.2d at 342. Escaping from custody does not
inherently involve risk to another or, in the ordinary course,
present such a risk. See Piccolo, 441 F.3d at 1089–90. The
same cannot be said of the enumerated offenses. See United
States v. Spencer, 724 F.3d 1133, 1140–41 (9th Cir. 2013)
(recognizing that the enumerated offenses involve a
substantial risk of causing physical injury to another); United
States v. Mayer, 560 F.3d 948, 960 (9th Cir. 2009) (noting
that “Congress singled out the enumerated offenses because
. . . they often created a significant risk of bodily injury”).
Because the risk involved in committing the crime of escape
from custody is less than the risk involved in any of the
offenses enumerated in § 4B1.2, it is not a crime of violence.
See James, 550 U.S. at 203 (noting that the enumerated
offenses serve as a baseline for assessing whether a crime
presents a serious risk of physical injury to another).
IV.
We conclude that the district court erred in holding that
Simmons’ conviction under Hawaii Revised Statutes § 710-
UNITED STATES V. SIMMONS 19
1021 is a “crime of violence” for purposes of U.S.S.G.
§ 4B1.1(a). Accordingly, we vacate Simmons’ sentence and
remand for resentencing.
VACATED and REMANDED.