United States v. Piccolo ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10577
Plaintiff-Appellee, D.C. No.
v.  CR-04-00083-LRH/
FRAZER SCOTT PICCOLO, PAL
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
September 15, 2005—San Francisco, California
Filed April 3, 2006
Before: Betty B. Fletcher, John R. Gibson,* and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge B. Fletcher
*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
3655
3658 UNITED STATES v. PICCOLO
COUNSEL
Franny A. Forsman, Las Vegas, Nevada, and Arthur L. Allen,
Las Vegas, Nevada, for the appellant.
Daniel G. Bogden, Las Vegas, Nevada, and Patrick Walsh,
Las Vegas, Nevada, for the appellee.
OPINION
B. FLETCHER, Circuit Judge:
Appellant Frazer Scott Piccolo appeals the district court’s
determination that his conviction for walkaway escape from
a halfway house is a “crime of violence” under United States
Sentencing Guidelines (“Sentencing Guidelines” or
“U.S.S.G.”) § 4B1.1 and that he is accordingly a “career
offender” under that provision. Because we hold that the dis-
trict court erred in determining that any escape is a crime of
violence, we reverse and remand for resentencing.
I
On April 9, 2003, Piccolo, while residing at the Clark Com-
munity Corrections Center, a non-secure halfway house in
Las Vegas, Nevada, left to attend a drug treatment meeting
and did not return.1 He voluntarily turned himself in on Febru-
1
At that time, he was serving the remaining months of a 63-month sen-
tence after pleading guilty to one count of bank robbery under 18 U.S.C.
UNITED STATES v. PICCOLO 3659
ary 25, 2004, and was charged with escape under 18 U.S.C.
§ 751(a). Piccolo entered a guilty plea.
The Presentence Investigation Report categorized Piccolo’s
walkaway escape as a crime of violence, subjecting him to the
career-offender provision of the Sentencing Guidelines in
light of his prior convictions for crimes of violence. That pro-
vision, U.S.S.G. § 4B1.1, provides that a defendant is a career
offender if:
(1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense
of conviction; (2) the instant offense of conviction is
a felony that is either a crime of violence or a con-
trolled substance offense; and (3) the defendant has
at least two prior felony convictions of either a crime
of violence or a controlled substance offense.
Piccolo did not contest the designations regarding the prior
crimes in district court.2 Rather, he claimed that § 4B1.1 is not
applicable to him because walkaway escape, the instant
offense, is not a crime of violence.
The district court expressed doubt whether Piccolo’s escape
could be deemed a crime of violence, noting, “I don’t view a
walk away from the Clark Center as in the same category as
classic escapes obviously.” The district court also stated, “the
facts of Mr. Piccolo’s case are about as far removed from a
crime of violence of any — as any crime of violence I’ve per-
sonally had in front of me . . . . It’s — this is a halfway house,
§ 2113(a).
2
These included a 1994 conviction for burglary under Nevada Revised
Statutes 205.060; a 1995 conviction for attempted burglary under Nevada
Revised Statutes 205.060 (burglary) and 193.330 (attempt); and the 1998
federal conviction for Bank Robbery in violation of 18 U.S.C. § 2113(a),
for which Piccolo was confined at the time of his escape.
3660 UNITED STATES v. PICCOLO
he did walk away, there was no threat to anyone . . . .” Ulti-
mately, however, the district court ruled that under the analy-
sis set forth in Taylor v. United States, 495 U.S. 575 (1990),
all escapes, as a matter of law, constitute crimes of violence.
Piccolo was sentenced as a career offender to 37 months
under the enhanced Sentencing Guidelines range. This timely
appeal followed.3
II
We review the district court’s interpretation of the Sentenc-
ing Guidelines de novo. United States v. Cantrell, 433 F.3d
1269, 1279 (9th Cir. 2006). We also review de novo the deter-
mination of career-offender status under U.S.S.G. § 4B1.1.
United States v. Kelly, 422 F.3d 889, 891-92 (9th Cir. 2005).
Under U.S.S.G. § 4B1.2, a “crime of violence” is defined
as 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 per-
son of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious poten-
tial risk of physical injury to another.
Because escape is neither specifically enumerated under
U.S.S.G. § 4B1.2 nor has as “an element the use, attempted
use, or threatened use of physical force against the person of
3
In the proceedings before the district court, defense counsel asserted
that, had Piccolo not been deemed a career offender, his Sentencing
Guidelines range would have been 15 to 21 months, including a four-level
reduction for escape from a non-secure community-correction center. See
U.S.S.G. § 2P1.1(b)(3).
UNITED STATES v. PICCOLO 3661
another,” the offense, to qualify as a crime of violence, must
fall within the “catchall” provision of § 4B1.2(a)(2) for “con-
duct that presents a serious potential risk of physical injury to
another.”
[1] The “categorical approach” outlined in Taylor governs
our inquiry of the question whether a particular conviction
satisfies the specified elements of a sentence-enhancement
provision. Under the categorical approach, we “do not exam-
ine the facts underlying the prior offense, but ‘look only to the
fact of conviction and the statutory definition of the prior
offense.’ ” United States v. Corona-Sanchez, 291 F.3d 1201,
1203 (9th Cir. 2002) (en banc) (quoting Taylor, 495 U.S. at
602). We then “determine whether ‘the fact of conviction and
the statutory definition of the prior offense’ demonstrate that
[the defendant] could not have been convicted of an offense
outside the guideline definition.” United States v. Shumate,
329 F.3d 1026, 1029 (9th Cir. 2003) (citing Corona-Sanchez,
291 F.3d at 1203).4 If we find that the relevant statute would
support a conviction not defined as a crime of violence under
§ 4B1.2, the prior “conviction does not qualify as a predicate
offense.” Corona-Sanchez, 291 F.3d at 1203.
[2] We apply the categorical approach “in a variety of sen-
tencing contexts.” United States v. Rivera-Sanchez, 247 F.3d
905, 908 (9th Cir. 2001) (en banc). Moreover — and crucial
to this case — we apply it without regard to whether the given
offense is a prior offense or the offense of conviction.
In United States v. Amparo, 68 F.3d 1222, 1224-26 (9th
Cir. 1995), we applied the categorical approach to a current
4
In the limited circumstances where such materials prove insufficient to
make that determination, we adopt a modified categorical approach and
expand the inquiry to include “the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any explicit fac-
tual finding by the trial judge to which the defendant assented.” Shepard
v. United States, 125 S. Ct. 1254, 1257, 1263 (2005); see also Kelly, 422
F.3d at 895.
3662 UNITED STATES v. PICCOLO
conviction under 18 U.S.C. § 924(c)(3)(B) to hold that pos-
session of an unregistered sawed-off shotgun is a crime of
violence. Amparo noted that, when determining questions of
law, we adopt a categorical approach in lieu of “the circum-
stantial or case-by-case method that requires the district court
to inquire into the facts of the particular case.” Id. at 1225
(quoting United States v. Mendez, 992 F.2d 1488, 1490 (9th
Cir. 1993) (internal quotation marks omitted)). Moreover, in
the context of crime-of-violence determinations under
§ 924(c), our categorical approach applies regardless of
whether we review a current or prior crime. See Amparo, 68
F.3d at 1224-26; see also Mendez, 922 F.2d at 1489-91
(applying categorical approach to hold that current offense of
conspiracy to rob under 18 U.S.C. § 1951 is a crime of vio-
lence under § 924(c)(3)(B)); United States v. Springfield, 829
F.2d 860, 862-63 (9th Cir. 1987) (same with respect to
involuntary-manslaughter conviction). We considered the
possibility of using a case-by-case approach when reviewing
the instant crime of conviction but declined to do so in light
of our general commitment to deciding rules of law on cate-
gorical grounds. Amparo, 68 F.3d at 1225-26. Although the
categorical analysis is driven in part by a policy decision to
“avoid ‘ad-hoc mini-trials regarding an individual’s prior
convictions’ during sentencing hearings,” Amparo, 68 F.3d at
1225 (emphasis added) (citing United States v. Sherbondy,
865 F.2d 996, 1008 (9th Cir. 1988)), the absence of that par-
ticular problem did not preclude us from adopting the categor-
ical approach.5
5
It is by no means certain that other “practical difficulties” with a case-
by-case approach would not equally complicate adjudications of current
offenses. For instance, in the situation where a defendant pleads guilty,
there may be insufficient facts available to determine whether the offense
was a violent felony. See Taylor, 495 U.S. at 601. Moreover, it would be
unfair to impose an enhancement in a situation where the facts indicated
a violent felony but the defendant had pleaded guilty to a lesser, non-
violent charge. Id. at 601-02.
 UNITED STATES v. PICCOLO 3663
[3] We have consistently applied categorical analysis in
determining whether a prior offense satisfies a sentence-
enhancement provision of the Sentencing Guidelines. See,
e.g., United States v. Pimentel-Flores, 339 F.3d 959, 967-68
(9th Cir. 2003) (holding that the question whether defendant’s
prior conviction is a crime of violence for purposes of
U.S.S.G. § 2L1.2(b)(1) is subject to categorical approach);
Shumate, 329 F.3d at 1029 (same with respect to career-
offender status under U.S.S.G. § 4B1.2). The logic of Amparo
dictates that we do the same with respect to current offenses.
Accordingly, the crime-of-violence determination under
U.S.S.G. § 4B1.2, a legal question, is properly decided under
Taylor’s categorical analysis in cases of both prior and current
offenses.6
III
[4] As previously noted, the definition of “crime of vio-
lence” under U.S.S.G. § 4B1.2 does not specifically mention
“escape.” Moreover, an escape under § 751(a) does not have
as “an element the use, attempted use, or threatened use of
physical force against the person of another.” Thus, we decide
whether the “catchall phrase” of U.S.S.G. § 4B1.1 applies to
the crime of escape.
[5] The general escape statute provides in pertinent part,
“Whoever escapes or attempts to escape from . . . any institu-
6
The Fourth Circuit applies the categorical approach to an instant
offense in determining whether that offense qualifies as a crime of vio-
lence under the Sentencing Guidelines. See United States v. Martin, 215
F.3d 470, 472-75 (4th Cir. 2000) (concluding that a current bank-larceny
offense is not a crime of violence for purposes of U.S.S.G. § 4B1.1);
United States v. Johnson, 953 F.2d 110, 114 (4th Cir. 1992) (rejecting dis-
tinction between prior offenses and the instant offense for purposes of cat-
egorical analysis). The Tenth Circuit takes the opposite approach. See
United States v. Riggans, 254 F.3d 1200, 1203-04 (10th Cir. 2001) (reject-
ing the categorical approach in favor of “a conduct-specific inquiry” when
considering the instant offense of conviction).
3664 UNITED STATES v. PICCOLO
tion or facility in which he is confined by direction of the
Attorney General . . . shall, if the custody or confinement is
by virtue of . . . [a] 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 differentiate
between violent and non-violent escapes; the statutory defini-
tion of the crime runs the gamut from maximum-security
facilities to non-secure halfway houses.
[6] We think that the circumstances apparent in a walkaway
escape are of an entirely different order of magnitude than
escapes from jails and prisons. Residents of halfway houses
have certain privileges of ingress and egress, do not live
behind concrete walls and barbed wire, and are not under
constant surveillance by armed guards. Those who leave with-
out returning do not pose an automatic risk of danger and
therefore do not categorically raise a serious potential risk of
physical harm. Thus, convictions for walkaway escape could
clearly take place “on the basis of conduct that did not present
a serious potential risk of physical injury to another.” Kelly,
422 F.3d at 893.
[7] Kelly is instructive. In Kelly, we held that a prior con-
viction for attempting to elude a police vehicle did not consti-
tute a crime of violence. Id. at 893-95. The circumstances in
Kelly involved close physical confrontation under circum-
stances leading to a much greater possibility of violence than
walkaway escape. The offense in Kelly also contained an “en-
dangerment” provision not present in the escape statute at bar,
making the latter offense, by comparison, even less likely to
qualify as a “crime of violence.” We conclude that Kelly con-
trols the outcome of this case, resolving, a fortiori, that a
walkaway escape is not a crime of violence. Because 18
U.S.C. § 751(a) makes possible a conviction for “an offense
outside the guideline definition,” Shumate, 329 F.3d at 1029,
UNITED STATES v. PICCOLO 3665
it does not automatically meet the specified criteria triggering
the career-offender provision of the Sentencing Guidelines.7
A few additional points are noteworthy. First, the Sentenc-
ing Guidelines specifically call for a four-level reduction in
cases of escape from non-secure facilities. See U.S.S.G.
§ 2P1.1(b)(3). Under the government’s theory, a current con-
viction for a walkaway escape from a non-secure facility is a
crime of violence which, when coupled with two or more
prior convictions that qualify as crimes of violence, triggers
the career offender enhancement, thereby dramatically
increasing the offense level. In the absence of such priors,
however, the defendant would be entitled to a four-level
reduction in the Sentencing Guidelines range. We do not see
how these two positions can be reconciled.
The Commentary to U.S.S.G. § 4B1.2 is also informative.
It expressly states that the definition of “crime of violence”
shall not include unlawful possession of a firearm by a felon.
U.S.S.G. § 4B1.2 cmt. n.1. That Congress would explicitly
exclude this particular crime from the “catchall” clause of
U.S.S.G. § 4B1.2(a)(2), yet implicitly include a non-violent
walkaway escape of the sort at issue in this case, seems
unlikely.
A number of our sister circuits, relying on Taylor, have
held that any escape, however effected, categorically consti-
tutes a crime of violence under the Sentencing Guidelines.
See, e.g., United States v. Winn, 364 F.3d 7, 12 (1st Cir. 2004)
7
Our conclusion that a conviction for escape under § 751(a) does not
categorically qualify as a crime of violence does not preclude the govern-
ment from demonstrating, under a modified categorical approach, that a
specific conviction for escape would meet the requisite standard. See
Corona-Sanchez, 291 F.3d at 1211. Although we have previously left
open the question whether the modified categorical approach applies to
cases arising under the “catchall” provision, see Kelly, 422 F.3d at 895;
United States v. Parker, 5 F.3d 1322, 1326 (9th Cir. 1993), we see no rea-
son why it would not apply to that provision.
3666 UNITED STATES v. PICCOLO
(the “categorical approach forecloses the conclusion” that
failure to return to a halfway house would not “present a seri-
ous risk of injury to another”); United States v. Bryant, 310
F.3d 550, 554 (7th Cir. 2002) (failure to report back to half-
way house constitutes a crime of violence because “every
escape involves a serious potential risk of physical injury to
another”) (internal quotations omitted); United States v. Lus-
ter, 305 F.3d 199, 202 (3d Cir. 2002) (holding that escape
qualifies as a crime of violence); United States v. Gay, 251
F.3d 950, 954-55 (11th Cir. 2001) (per curiam) (same);
United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001)
(same); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.
1999) (same); United States v. Harris, 165 F.3d 1062, 1068
(6th Cir. 1999) (same); United States v. Mitchell, 113 F.3d
1528, 1533 (10th Cir. 1997) (same); United States v. Dicker-
son, 77 F.3d 774, 777 (4th Cir. 1996) (same). Courts have
similarly applied Taylor in analogous circumstances to rule
that an escape conviction qualifies as a “violent felony” under
the Armed Career Criminal Act. United States v. Wardrick,
350 F.3d 446, 455 (4th Cir. 2003); United States v. Franklin,
302 F.3d 722, 724 (7th Cir. 2002); United States v. Jackson,
301 F.3d 59, 62 (2d Cir. 2002); United States v. Hairston, 71
F.3d 115, 117-18 (4th Cir. 1995).
The majority of these circuits liken an escape to a “powder
keg, which may or may not explode into violence and result
in physical injury to someone at any given time, but which
always has the serious potential to do so.” United States v.
Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994); see also Winn,
364 F.3d at 11; Nation, 243 F.3d at 472. That theory appar-
ently renders all escapes, including those that take place with-
out incident, crimes of violence under the Sentencing
Guidelines.
Our view is that the powder-keg “approach taken by the
other circuits proves too much.” United States v. Thomas, 333
F.3d 280, 282 (D.C. Cir. 2003). While an escapee who flees
a secured facility or the custody of an armed guard presents
UNITED STATES v. PICCOLO 3667
a serious risk of injury to himself and others, the same cannot
be said for an escapee who leaves a halfway house with per-
mission and fails to return. See Thomas, 333 F.3d at 283 (dis-
tinguishing the case of “[a] prisoner not returning to a halfway
house,” which “may not inherently create a risk of harm to
others”); United States v. Adkins, 196 F.3d 1112, 1119 (10th
Cir. 1999) (McKay, J., concurring) (“There is a quantum dif-
ference between the assumptions about the intrinsic danger of
unauthorized departure from actual custody . . . and of failure
to return from authorized departure from actual custody.”).
We therefore decline the opportunity to join the other circuits
that have held that any escape is a crime of violence.
The record is clear that Piccolo left the unsecured facility
with permission to attend a drug treatment program. This is
a far cry from a scenario where an escapee flees a guarded
prison or the custody of an armed official. And, as mentioned
earlier, the district court noted the nonviolent nature of the
offense.8
[8] Ordinarily, following a determination that an offense
does not categorically qualify as a crime of violence, we
would turn to the modified categorical approach and examine
the conviction with reference to additional relevant evidence.
See Shepard, 125 S. Ct. at 1257, 1263. That step is unneces-
sary in this case, however, given our recognition that walk-
away escapes that involve no violence or potential for
violence — such as the one committed here by Piccolo — are
the very reason that convictions under § 751(a) sweep too
broadly to qualify as a crime of violence.
8
The district court, noting Piccolo’s “particularly egregious felony his-
tory,” seems to have assumed that when presented with “a defendant with
this kind of a criminal history the Court has to view that this particular
offense would qualify as a crime of violence.” But Piccolo’s criminal his-
tory has no bearing on the question whether the escape is a crime of vio-
lence, though it could be a factor in considering the proper sentence under
the appropriate Sentencing Guidelines range.
3668 UNITED STATES v. PICCOLO
IV
[9] Although Taylor provides the appropriate framework
for determining whether a current offense constitutes a crime
of violence, a conviction for escape under 18 U.S.C. § 751
does not necessarily “involve[ ] conduct that presents a seri-
ous potential risk of physical injury to another,” U.S.S.G.
§ 4B1.2(a)(2), and is therefore not a crime of violence under
the Sentencing Guidelines. We reverse and remand for resen-
tencing.9
REVERSED AND REMANDED.
9
Given our conclusion that the instant offense is not a crime of violence,
we need not address Piccolo’s claim that his previous offenses also do not
qualify as crimes of violence or his Sixth Amendment challenge.