United States v. Thomas, Lawrence ( 2004 )

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2003 Decided March 16, 2004
No. 02-3073
UNITED STATES OF AMERICA,
APPELLEE
v.
LAWRENCE E. THOMAS,
APPELLANT
Consolidated with
02–3121 and 03–3053
Appeals from the United States District Court
for the District of Columbia
(No. 01cr00423–01)
(No. 02cr00132–01)
(No. 99cr00399–01)
–————
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellants. With her on the briefs were A. J.
Kramer, Federal Public Defender, and Tony Axam, Jr. and
Erica J. Hashimoto, Assistant Federal Public Defenders.
Tony W. Miles, Assistant Federal Public Defender, entered
an appearance.
Suzanne Grealy Curt, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher, Barbara J.
Valliere, and Stephen J. Gripkey, Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and GARLAND and ROBERTS,
Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: The defendants in these consoli-
dated cases raise two questions under the United States
Sentencing Guidelines. The first, which is a question of first
impression in this circuit, is whether escape is a crime of
violence under Guideline § 4B1.2(a)(2) — the guideline that
defines the crimes that trigger career offender sentencing
enhancements. The second question, upon which there is
controlling precedent, is whether the district courts that
sentenced two of the defendants erred by relying on the
defendants’ arrest records in denying their motions for sen-
tencing departures pursuant to Guideline § 4A1.3.
I
On February 28, 2000, Lawrence Thomas pled guilty to one
count of bank robbery in violation of 18 U.S.C. § 2113(a). On
July 30, 2002, the United States District Court for the
District of Columbia sentenced Thomas as a ‘‘career offender’’
pursuant to U.S. SENTENCING GUIDELINES MANUAL § 4B1.1
[hereinafter U.S.S.G.].1 That provision subjects a defendant
to a substantial sentencing enhancement if, among other
1 Thomas was sentenced under the 2000 edition of the Manual;
Smith was sentenced under the 2001 edition; and Cook was sen-
tenced under the 2002 edition. The three editions were identical in
all respects relevant here.
3
things, he has two prior felony convictions for ‘‘crime[s] of
violence’’ or ‘‘controlled substance offense[s],’’ as defined in
§ 4B1.2. U.S.S.G. § 4B1.1(a); see id. cmt. n.1. In sentenc-
ing Thomas as a career offender, the district court deter-
mined that Thomas had previously been convicted of at least
two qualifying crimes of violence. The court based that
determination on Thomas’ 1977 armed robbery conviction,
and on his three prior convictions for escape: a 1987 convic-
tion for violating the District of Columbia’s former prison
breach statute, D.C. Code § 22–2601 (1973); a 1988 conviction
for violating the same statute; and a 1995 conviction for
escape from a federal facility in violation of 18 U.S.C.
§ 751(a). These past convictions, the court concluded, trig-
gered § 4B1.1, thus increasing Thomas’ guidelines offense
level from 24 to 32 and placing Thomas in criminal history
category VI. See Thomas Presentence Investigation Report
(PSR) ¶¶ 19–20, 41.2
Thomas challenged this conclusion, arguing that, although
his conviction for armed robbery concededly qualified as a
crime of violence under Guideline § 4B1.2(a), his previous
escape convictions did not. Thomas also maintained that
category VI over-represented the seriousness of his criminal
history, and urged the district court to grant a downward
departure from his guidelines sentencing range pursuant to
Guideline § 4A1.3. The district court rejected Thomas’ argu-
ments, holding that escape was a crime of violence, and
that — in light of Thomas’ record of arrests and convic-
tions — category VI did not overstate his criminal history.
The court did, however, decrease Thomas’ offense level by 3
levels for accepting responsibility for his crime, see U.S.S.G.
§ 3E1.1(a)–(b), and by another 8 levels because Thomas had
provided substantial assistance to law enforcement after his
arrest, id. § 5K1.1. Thomas Sentencing Hr’g Tr. at 46 (July
30, 2002). This resulted in an offense level of 21, which,
2 Guideline § 4B1.1(b) mandates a criminal history category of VI
for all career offenders. U.S.S.G. § 4B1.1(b). It also mandates an
offense level of (at least) 32 when the instant offense of conviction
carries a statutory maximum of between 20 and 25 years’ imprison-
ment. Id.
4
combined with a criminal history category of VI, yielded a
sentencing range of 77–96 months. U.S.S.G. ch. 5, pt. A
(sentencing table). The district court sentenced Thomas to
80 months in prison.
On March 28, 2002, Dale Smith pled guilty to one count of
possession with intent to distribute heroin, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C). He also accepted responsi-
bility for 2.5 grams of cocaine powder as conduct relevant to
that offense. At sentencing, the district court concluded —
over the defendant’s objection — that Smith was a career
offender based on two prior felony convictions: a 1993 convic-
tion for possession with intent to distribute cocaine, and a
1997 conviction for escape from an institution in violation of
the current D.C. Code escape statute, D.C. Code § 22–
2601(a)(1) (2001). The career offender designation gave
Smith an adjusted offense level of 29 (after a 3–level reduc-
tion for acceptance of responsibility), and a criminal history
category VI. That combination mandated a guideline sen-
tencing range of 151–188 months’ imprisonment, as compared
to what would have been a range of 33–41 months without the
career offender designation. Compare Smith PSR ¶¶ 28, 85,
with id. ¶¶ 25, 27, 41, and U.S.S.G. ch. 5, pt. A. Like
Thomas, Smith filed a motion for a downward departure
pursuant to Guideline § 4A1.3, claiming that, even if he
technically qualified as a ‘‘career offender’’ under § 4B1.1,
that designation significantly overstated the seriousness of his
criminal history. The district court denied the motion in light
of Smith’s history of arrests and convictions, and sentenced
Smith to a 151–month term of incarceration.
Finally, on April 4, 2002, Andrew Cook, Jr. pled guilty to
one count of a five-count indictment charging him with pos-
session of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). Although that crime generally carries a
base offense level of 14, that level increases to 24 if the
defendant has two prior felony convictions for ‘‘crime[s] of
violence’’ or controlled substance offenses, as defined ‘‘in
U.S.S.G. § 4B1.2(a).’’ U.S.S.G. § 2K2.1(a), cmt. n.5; see id.
§ 2K2.1(a). Over Cook’s objection, the district court found
that Cook had two prior convictions for crimes of violence: a
5
1970 armed robbery and a 1989 prison breach in violation of
former D.C. Code § 22–2601 (1973).3 After the district court
subtracted 5 levels for substantial assistance to law enforce-
ment and 3 levels for acceptance of responsibility, Cook’s
adjusted offense level was 16. See Cook PSR ¶¶ 16, 22, 23;
Cook Sentencing Hr’g Tr. at 21 (Dec. 16, 2002). Combined
with a criminal history category of V, the guideline sentencing
range was 41–51 months. U.S.S.G. ch. 5, pt. A. The court
sentenced Cook to 41 months in prison, the bottom of the
range.
All three defendants filed timely notices of appeal. Al-
though their crimes were unrelated, we granted the defen-
dants’ unopposed motion to consolidate their appeals because
they raised common questions of law. In Part II, we consid-
er whether escape is properly regarded as a crime of violence
under Guideline § 4B1.2(a). In Part III, we consider wheth-
er the district courts erred by relying on arrest records in
denying Thomas’ and Smith’s motions for downward depar-
tures under § 4A1.3.
II
At sentencing, each defendant objected to the enhancement
of his sentence based on the designation of a prior escape
offense as a ‘‘crime of violence,’’ as that term is defined in
Guideline § 4B1.2(a). Whether a particular crime constitutes
a crime of violence under the Sentencing Guidelines is a
question of law, which we review de novo. See United States
v. Hill, 131 F.3d 1056, 1062 n.5 (D.C. Cir. 1997); United
States v. Mathis, 963 F.2d 399, 404 (D.C. Cir. 1992).
Guideline § 4B1.2(a) defines ‘‘crime of violence’’ as:
[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that —
3Cook also moved for a downward departure under Guideline
§ 4A1.3, but unlike defendants Thomas and Smith, he does not
appeal the district court’s denial of that motion.
6
(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, in-
volves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical inju-
ry to another.
U.S.S.G. § 4B1.2(a) (emphasis added). All of the circuits that
have considered the question — numbering nine to date —
have concluded that the crime of escape falls within the ambit
of § 4B1.2(a).4 Today, we join them.
4 See United States v. Jackson, 301 F.3d 59, 62 (2d Cir. 2002)
(‘‘Every circuit court that has considered the issue has held that an
escape, from whatever location by whatever means, constitutes
‘conduct that presents a serious potential risk of injury to anoth-
er.’ ’’); United States v. Luster, 305 F.3d 199, 199–202 (3d Cir. 2002)
(concluding that a conviction under a state escape statute that
‘‘extends to a ‘walk away’ from custody’’ is a conviction for a crime
of violence under the Guidelines); United States v. Dickerson, 77
F.3d 774, 777 (4th Cir. 1996) (concluding that escape in violation of
18 U.S.C. § 751(a) is a crime of violence under § 4B1.2); United
States v. Ruiz, 180 F.3d 675, 677 (5th Cir. 1999) (holding that ‘‘a
knowing escape from lawful federal custody TTT constitutes a crime
of violence under § 4B1.2,’’ notwithstanding that the defendant
merely walks away from a prison camp); United States v. Harris,
165 F.3d 1062, 1068 (6th Cir. 1999) (finding that a defendant’s
escape from a workhouse falls within the scope of § 4B1.2); United
States v. Bryant, 310 F.3d 550, 553–54 (7th Cir. 2002) (concluding
that a defendant’s conviction for escape, resulting from his failure to
return to his halfway house, constitutes a crime of violence); United
States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001) (declaring that
‘‘every escape, even a so-called ‘walkaway’ escape, involves a poten-
tial risk of injury to others’’); United States v. Turner, 285 F.3d
909, 915 (10th Cir. 2002) (holding that an escape always constitutes
a crime of violence, even when the defendant merely ‘‘fail[s] to
return to a halfway house from work release’’) (internal quotation
marks omitted); United States v. Gay, 251 F.3d 950, 954–55 (11th
7
Defendants Thomas and Cook had prior convictions for
prison breach in violation of former D.C. Code § 22–2601
(1973). That statute provided, in relevant part: ‘‘Any person
committed to a penal institution of the District of Columbia
who escapes or attempts to escape therefrom, or from the
custody of an officer thereof TTT, shall be guilty of an
offenseTTTT’’ Defendant Smith had a prior conviction for
violating the District of Columbia’s current ‘‘escape from an
institution’’ provision, which states: ‘‘No person shall escape
or attempt to escape from: (1) Any penal institution or
facility in which that person is confined pursuant to an order
issued by a court, judge, or commissioner of the District of
Columbia.’’ D.C. Code § 22–2601(a)(1) (2001).5 Finally, in
addition to his D.C. Code violation, Thomas had also been
convicted of violating the federal escape statute, which makes
it a crime to ‘‘escape[ ] or attempt[ ] to escape from the
custody of the Attorney General or his authorized representa-
tive, or from any institution or facility in which he is confined
by direction of the Attorney GeneralTTTT’’ 18 U.S.C.
§ 751(a).
We begin with common ground. First, both the defendants
and the government agree that, in determining whether the
crime of escape comes within the scope of Guideline
§ 4B1.2(a), we must utilize a categorical approach. See Hill,
131 F.3d at 1062; U.S.S.G. § 4B1.2, cmt. n.1 (stating that the
relevant inquiry under § 4B1.2(a)(2) is whether the conduct
‘‘expressly charged TTT by its nature’’ presents a serious
potential risk of physical injury); see also Taylor v. United
States, 495 U.S. 575, 600–02 (1990); Mathis, 963 F.2d at 408.6
Cir. 2001) (concluding that even a walkaway escape from an unse-
cured facility constitutes a crime of violence).
5 Subsection (a)(2) of the same statute bars escape from ‘‘(2) The
lawful custody of an officer or employee of the District of Columbia
or of the United States.’’ D.C. Code § 22–2601(a)(2).
6 See also, e.g., United States v. Pierce, 278 F.3d 282, 286 (4th Cir.
2002); Bryant, 310 F.3d at 553–54; Nation, 243 F.3d at 472;
Harris, 165 F.3d at 1068; United States v. Hairston, 71 F.3d 115,
8
Utilizing this approach, we must confine our review to the
conduct prohibited by the statutes at issue or set forth in the
charging papers, and ‘‘ ‘should not examine the actual conduct
underlying the offense.’ ’’ Hill, 131 F.3d at 1062 (quoting
Mathis, 963 F.2d at 408).7 In this case, because Smith’s and
Cook’s escape indictments are devoid of detail, and Thomas’
indictments were never proffered to the court, the parties
agree that we should look no further than the statutory
language. See Taylor, 495 U.S. at 600; United States v.
Luster, 305 F.3d 199, 202 (3d Cir. 2002); United States v.
Pierce, 278 F.3d 282, 287 (4th Cir. 2002).
The parties also agree that neither the D.C. Code provi-
sions, nor the federal escape statute, fall within the first
subsection of § 4B1.2(a). That is, the offenses defined by
those statutes do not have ‘‘as an element the use, attempted
use, or threatened use of physical force against the person of
another.’’ U.S.S.G. § 4B1.2(a)(1) (emphasis added). Nor is
escape one of the four crimes of violence specifically enumer-
ated in § 4B1.2(a)(2): burglary, arson, extortion, or the use of
explosives. Thus, the only remaining question is whether
escape falls within the ‘‘otherwise’’ clause of § 4B1.2(a)(2): a
crime that ‘‘otherwise involves conduct that presents a serious
potential risk of physical injury to another.’’ Id.
§ 4B1.2(a)(2).
The defendants contend that the offenses for which they
were convicted do not fall within the ‘‘otherwise’’ clause
because they can be committed without force or violence. As
117 (4th Cir. 1995); United States v. DeLuca, 17 F.3d 6, 8 (1st Cir.
1994).
7 In some circumstances, a court may also examine jury instruc-
tions. See Hill, 131 F.3d at 1062 (citing Taylor, 495 U.S. at 602).
In addition, if a defendant has pled guilty to a lesser included
offense of a charge in an indictment, a sentencing court may
examine certain other indices — such as a judgment of conviction,
plea agreement, or statement by the defendant on the record. See
id. at 1064–65; see also United States v. Williams, 2004 WL
330016, at *8 (D.C. Cir. 2004). None of those circumstances are
relevant here.
9
they correctly point out, the statutes at issue have been
construed expansively. Knowingly absenting oneself from
custody without permission is sufficient to constitute a viola-
tion.8 Consequently, although both the federal and D.C.
statutes prohibit escape from the lawful custody of an officer,
see 18 U.S.C. § 751(a); D.C. Code § 22–2601(a)(2), walking
away from a halfway house — or simply failing to return on
time — violates the statutes as well.9 And, as defendants
further note, in United States v. (Toumani) Thomas, we
expressed ‘‘reluctan[ce]’’ about extending § 4B1.2(a) to an
offense that could include a ‘‘walkaway’’ escape, stating that
‘‘[a]rguably, the approach taken by the other circuits proves
too much.’’ 333 F.3d 280, 282 (D.C. Cir. 2003).
In Thomas, however, we made clear that our expression of
concern was merely dicta, because there the defendant’s prior
conviction was specifically for ‘‘escape from an officer’’ under
D.C. Code § 22–2601(a)(2), a crime that plainly involves a
serious potential risk of injury. We thus did not have to
decide whether a conviction for the offense of ‘‘escape from an
institution,’’ or for a general offense that encompasses both
forms of escape, is likewise covered. Now that the issue is
squarely before us, we conclude that our sister circuits, which
regard such crimes (including walkaways) as violent offenses
under § 4B1.2(a), are right. See cases cited supra note 4.
The fact that escape can be committed by a nonviolent
walkaway does not shield it from designation as a crime of
8 See United States v. Bailey, 444 U.S. 394, 408 (1980) (conclud-
ing that ‘‘the prosecution fulfills its burden’’ under 18 U.S.C. § 751by demonstrating ‘‘that an escapee knew his actions would result in
his leaving physical confinement without permission,’’ and need not
also show ‘‘an intent to avoid confinement’’); Thurston v. United
States, 779 A.2d 260, 263 (D.C. 2001) (same under D.C. Code § 22–
2601(a)).
9 See United States v. Vaughn, 446 F.2d 1317, 1318 (D.C. Cir.
1971); Thurston, 779 A.2d at 262 n.4; Gonzalez v. United States,
498 A.2d 1172, 1174 (D.C. 1985); see also Bailey, 444 U.S. at 413(holding that ‘‘escape from federal custody as defined in § 751(a) is
a continuing offense and TTT an escapee can be held liable for
failure to return to custody as well as for his initial departure’’).
10
violence for two reasons. First, the fact that escape can take
place without force merely confirms the point upon which all
parties have agreed: that escape does not have the use or
threat of force ‘‘as an element,’’ and thus does not fall within
§ 4B1.2(a)(1). Subsection (2) of 4B1.2(a), however, is an
independent ground for designating an offense as violent, and
hence it must cover crimes that do not have force as an
element. And indeed it does: subsection (2) adds to the list
of violent offenses those in which there is only a ‘‘serious
potential risk’’ of injury.
Second, the fact that the defendants can hypothesize cir-
cumstances in which escape can be committed without either
force or risk of injury cannot be dispositive under § 4B1.2(a),
as such an analytical approach would eviscerate the notion of
a ‘‘categorical’’ definition. See United States v. Vigil, 334
F.3d 1215, 1223 (10th Cir. 2003) (‘‘[T]he possibility that a
crime may be completed without injury is irrelevant to the
determination of whether it constitutes a crime of violence
within the meaning of § 4B1.2.’’) (emphasis added). Many
concededly violent offenses can be hypothesized to take place
in a manner that eliminates risk of injury: attempted mur-
der,10 for example, becomes riskless if we assume that the
sniper’s gun has no bullets. In essence, by assuming facts
that render a crime riskless, the defendants effectively shave
offense conduct down to the smallest possible ‘‘category’’ —
the circumstances of any given case. In so doing, they
circumvent the definitional question posed by the guideline:
whether, as a category (i.e., ‘‘by its nature’’), escape involves
conduct that presents ‘‘a serious potential risk of physical
injury to another,’’ U.S.S.G. § 4B1.2, cmt. n.1.11 See United
States v. Franklin, 302 F.3d 722, 723 (7th Cir. 2002) (holding
that, in determining whether escape poses a risk of violence,
10 See Guideline § 4B1.2, cmt. n.1 (stating that the term ‘‘ ‘[c]rime
of violence’ includes murder,’’ as well as ‘‘attempting to commit’’
such an offense).
11 For the same reason, we cannot accept the defendants’ conten-
tion that ‘‘an offense is not categorically a crime of violence unless
every such offense is.’’ Reply Br. at 6.
11
‘‘the benchmark should be the possibility for violent confron-
tation, not whether one can postulate a nonconfrontational
hypothetical scenario’’) (internal quotation marks omitted).
With these preliminary points clarified, we now turn direct-
ly to that question. To answer it, we first consider the
meaning of the phrase ‘‘serious potential risk.’’ A ‘‘risk,’’ of
course, is merely ‘‘the possibility’’ of loss or injury. MERRIAM
WEBSTER’S COLLEGIATE DICTIONARY 1011 (10th ed. 1996). And
while the addition of the adjective ‘‘serious’’ would seem to
increase the required degree of probability, the interjection of
the second adjective, ‘‘potential,’’ appears to reduce it again.12
In short, a textual analysis of the guideline’s key phrase, by
itself, sheds only a little light on our question.
The context in which the phrase ‘‘serious potential risk’’
resides, however, provides substantially more illumination.13
The phrase is part of an ‘‘otherwise’’ clause that begins with a
list of four offenses that the guideline regards as unquestion-
ably crimes of violence: burglary of a dwelling, arson, extor-
tion, and the use of explosives. And when a statute or
regulation begins with a list of specific categories and ends
with a general catch-all, the interpretative canons of ejusdem
generis (‘‘of the same kind or class’’) and noscitur a sociis (a
word is ‘‘known by its associates’’) counsel that the latter be
read in light of the former. See Washington State Dep’t of
Soc. & Health Services v. Guardianship Estate of Keffeler,
537 U.S. 371, 384–85 (2003).
Now we have something more to work with, and to apply to
the issues raised by the defendants. It is true, as the
defendants contend, that a person can escape without force or
serious risk of injury to anyone by simply walking away from
an unguarded halfway house; he may also peacefully end his
12 See MERRIAM WEBSTER’S at 912 (defining ‘‘potential’’ as ‘‘existing
in possibility,’’ or as ‘‘something that can develop or become actu-
al’’ — as in ‘‘a [potential] for violence’’).
13 Cf. Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809
(1989) (‘‘It is a fundamental canon of statutory construction that the
words of a statute must be read in their context and with a view to
their place in the overall statutory scheme.’’).
12
offense by waiting until the coast is clear and returning of his
own volition. But the same is true of the individual who
commits burglary of a dwelling: he can wait until the resi-
dents are on vacation and enter the house unarmed. The
same is also true of the arsonist, who, with care, can avoid
serious risk of physical injury to another by limiting his fires
to isolated, abandoned buildings. See Vigil, 334 F.3d at 1223(noting that § 4B1.2 ‘‘expressly includes arson and burglary
of a dwelling as crimes of violence,’’ notwithstanding that ‘‘a
sizable percentage of burglaries and arsons occur in ‘safely’
unoccupied homes’’). And injury can likewise be avoided by
the extortionist — who can commit his crime by threatening
to damage only the reputation of his victim, and who can
target only the meek and the weak. See, e.g., 18 U.S.C.
§ 875(d) (making it a crime to extort money by transmitting
‘‘any threat to injure the property or reputation of the
addressee’’); United States v. DeLuca, 17 F.3d 6, 8 (1st Cir.
1994) (holding that a state extortion statute that encom-
passed, ‘‘in addition to threats against the person, threats
against the reputation, property or financial condition of
another,’’ was a crime of violence under § 4B1.2) (internal
quotation marks omitted).
The issue, then, is whether the offense of escape — as a
category — carries appreciably less risk of injury to another
than do the listed crimes. Cf. DeLuca, 17 F.3d at 8 (holding
that ‘‘the wording of the guideline tells us unequivocally that
the Sentencing Commission believed that extortion, by its
nature, should be classified as a crime of violence’’). And in
making that evaluation, we must keep in mind that escape is a
‘‘continuing offense,’’ which does not end until the defendant
is returned to custody. United States v. Bailey, 444 U.S. 394,
413 (1980) (referring to 18 U.S.C. § 751); see Craig v. United
States, 551 A.2d 440, 440–41 (D.C. 1988) (referring to D.C.
Code § 22–2601 (1973)). Hence, the risk of injury must be
evaluated not only at the time of the defendant’s escape from
imprisonment, but at the time of his reapprehension as well.
Evaluated from that perspective, we have no basis for
concluding that the risk of physical injury during an escape is
any less than during a burglary, arson, or extortion. Like
13
burglary of a dwelling or arson, a defendant may accomplish
an escape in the safest possible way. But just as the cautious
burglar may be startled by the unexpected return of the
homeowner, or the careful arsonist surprised by a fire that
spreads out of control, the stealthy escapee may suddenly be
confronted by police officers sent to apprehend him, leading
to injury to the officers or bystanders. As the Second Circuit
has observed:
An inmate who escapes by peacefully walking away TTT
will (if he can) be inconspicuous and discreet, and will (if
he can) avoid confrontation and force. But escape invites
pursuit; and the pursuit, confrontation, and recapture of
the escapee entail serious risks of physical injury to law
enforcement officers and the public.
United States v. Jackson, 301 F.3d 59, 63 (2d Cir. 2002); see
United States v. Turner, 285 F.3d 909, 916 (10th Cir. 2002)
(‘‘Even though initial circumstances of an escape may be non-
violent, there is no way to predict what an escapee will do
when encountered by the authorities.’’); United States v.
Nation, 243 F.3d 467, 472 (8th Cir. 2001) (‘‘Even the most
peaceful escape cannot eliminate the potential for violent
conflict when the authorities attempt to recapture the escap-
ee.’’). Accordingly, we conclude that the offense of escape is
a crime of violence within the meaning of Guideline
§ 4B1.2(a), and we therefore deny the defendants’ first
ground of appeal.
III
Defendants Thomas and Smith contend that their respec-
tive district judges also erred in denying their requests for
downward departures pursuant to Guideline § 4A1.3. That
provision permits the court to depart from the otherwise
applicable guideline sentencing range if the defendant’s crimi-
nal history category ‘‘significantly over-represents the seri-
ousness of a defendant’s criminal history or the likelihood
that the defendant will commit further crimes.’’ U.S.S.G.
§ 4A1.3, p.s. The defendants contend that their sentencing
judges erred by relying on their arrest records in determin-
14
ing that their criminal history categories did not over-
represent the seriousness of their criminal histories.
Although we have no authority to review a ‘‘court’s discre-
tionary decision that the particular circumstances of a given
case do not warrant a departure,’’ United States v. Pinnick,
47 F.3d 434, 439 (D.C. Cir. 1995), we can review a defendant’s
contention that a court’s refusal to depart was based on ‘‘an
incorrect application of the sentencing guidelines,’’ 18 U.S.C.
§ 3742(a)(2). See United States v. Joaquin, 326 F.3d 1287,
1290 (D.C. Cir. 2003); Pinnick, 47 F.3d at 439. However,
because the defendants here failed to raise this objection in
the district court, our review is limited to scrutiny for plain
error under Federal Rule of Criminal Procedure 52(b). See
United States v. Olano, 507 U.S. 725, 731 (1993); Joaquin,
326 F.3d at 1290. Under that standard, we can overturn the
district court’s decision only if there was ‘‘(1) ‘error,’ (2) that
is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ’’ Johnson
v. United States, 520 U.S. 461, 467 (1997) (quoting Olano, 507
U.S. at 732) (alteration in original). ‘‘If all three conditions
are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.’’ Id. (internal quotation marks omitted) (altera-
tion in original).
In United States v. Joaquin, this circuit held that a district
court errs, and that such an error is ‘‘plain,’’ if the court relies
on a defendant’s prior arrest record itself (that is, on the fact
of an arrest, without a conviction or other evidence that the
alleged criminal conduct actually took place) in denying a
motion to depart under the 2000 version of Guideline § 4A1.3.
See 326 F.3d at 1292. The same guideline text is applicable
to this case.14 The court’s decision in Joaquin, of course,
14 In 2000, the text of § 4A1.3 permitted a departure if ‘‘reliable
information,’’ including ‘‘prior similar adult criminal conduct not
resulting in a criminal conviction,’’ indicated ‘‘that the criminal
history category [did] not adequately reflect the seriousness of the
defendant’s past criminal conduct or the likelihood that the defen-
dant [would] commit other crimes.’’ U.S.S.G. § 4A1.3, p.s. (2000).
15
binds this panel. See LaShawn A. v. Barry, 87 F.3d 1389,
1395 (D.C. Cir. 1996) (en banc). Nonetheless, the govern-
ment contends that Joaquin is distinguishable from the cases
at issue here because, in Joaquin, the district court ‘‘focused
directly on Joaquin’s arrests alone’’ and ‘‘decided not to
depart because the arrest record standing by itself showed a
propensity to commit crimes.’’ Gov’t Br. at 34–35. In con-
trast, the government submits, the courts that sentenced
Thomas and Smith merely ‘‘mentioned appellants’ arrest rec-
ords, among many other facts.’’ Id. at 35.
The government’s effort to distinguish Joaquin misappre-
hends that case’s holding. In Joaquin, the defendant’s sen-
tence was remanded, not because the district court relied on
an arrest record alone, but ‘‘because, contrary to section
4A1.3’s plain language, the district court based its decision in
part on appellant’s ‘prior arrest record itself.’ ’’ 326 F.3d at
1288 (emphasis added). Since the government concedes that
the district courts here also relied in part on the defendants’
arrest records themselves,15 Joaquin mandates the conclusion
that those courts plainly erred. See id. at 1293.
But the text also stated that ‘‘a prior arrest record itself shall not be
considered under § 4A1.3.’’ Id. Joaquin read the latter as barring
consideration of an arrest record in deciding a motion for either a
downward or an upward departure. That language was unchanged
both at the time Smith and Thomas committed their offenses and at
the time they were sentenced, and it therefore applies to their
cases. See U.S.S.G. § 1B1.11(a)-(b), p.s. We note, however, that
the Sentencing Commission has recently amended § 4A1.3. Al-
though it now expressly prohibits consideration of a prior arrest
record ‘‘for purposes of an upward departure,’’ U.S.S.G.
§ 4A1.3(a)(3) (2003) (emphasis added), it does not mention such a
prohibition with respect to denying a downward departure, id.
§ 4A1.3(b)(2).
15 See also Smith Sentencing Hr’g Tr. at 17 (May 1, 2003)
(statement of the court) (noting that, ‘‘in about 14 years and 10
months, Mr. Smith has raked up approximately 20 arrests, eight
convictions, five post-conviction violations and two crimes committed
while serving sentences,’’ and that ‘‘if one looks to these factors TTT
Mr. Smith’s prospects for recidivism TTT are high and the criminal
16
That conclusion does not, however, end our examination.
Before we can correct a plain error, we still must determine
whether that error satisfies the final two prongs of the Rule
52(b) standard: (3) that it ‘‘ ‘affect[s] substantial rights,’ ’’ i.e.,
that it is prejudicial; and (4) that it ‘‘ ‘seriously affect[s] the
fairness, integrity, or public reputation of judicial proceed-
ings.’ ’’ Johnson, 520 U.S. at 467 (quoting Olano, 507 U.S. at
732) (alteration in original). With respect to the third prong,
we note that, while the burden of establishing prejudice is on
the defendant, Olano, 507 U.S. at 734, this circuit has held
that burden to be ‘‘ ‘slightly less exacting’ ’’ in the context of
sentencing errors as compared to trial errors, and that to
meet it a defendant ‘‘need show only ‘a reasonable likelihood’
that the error affected the court’s sentence,’’ Joaquin, 326
F.3d at 1290 (quoting United States v. Saro, 24 F.3d 283, 287–
88 (D.C. Cir. 1994)).
A comparison of the facts in Joaquin with those in defen-
dant Smith’s case again makes the former controlling. In
Joaquin, the court found that, because Joaquin’s record
contained 11 arrests without convictions — all within 15 years
of the instant offense — there was a reasonable likelihood
that the district court would have reached a different decision
regarding the seriousness of Joaquin’s record absent consid-
eration of those arrests. See id. at 1289, 1294. The court
further found that such an error seriously affected the fair-
ness and integrity of judicial proceedings. Id. at 1294. De-
fendant Smith’s record — which likewise contains 11 arrests
without convictions within 15 years of the instant offense — is
indistinguishable.16 Accordingly, because Joaquin held that
history category reflects properly Mr. Smith’s criminal history as
realistically portrayed’’); Thomas Presentencing Hr’g Tr. at 37–38
(July 12, 2002) (statement of the court) (‘‘reviewing very carefully
the chronology of his arrests, incarcerations and releases on parole’’
and rejecting ‘‘the argument that the criminal history category
overrepresents the likelihood of recidivism’’).
16 See Smith PSR ¶¶ 43–53. The two defendants’ records of prior
arrests with convictions are also not materially different: Joaquin
17
such a record satisfied the final two prongs of the plain error
standard, we can reach no other conclusion here. We there-
fore remand Smith’s sentence to the district court.17 On
remand, of course, the district court is free to decline to
depart again, as long as it does so without reference to the
defendant’s arrest record.
Defendant Thomas’ sentencing presents a different case.
By contrast to Joaquin’s 11 relatively recent arrests without
convictions, Thomas had only two within the previous 15
years. Thomas PSR ¶¶ 49, 50. Although Thomas also had
older arrests that did not lead to convictions, all of those
occurred more than 20 years before the instant offense and
all but three led to unfavorable dispositions for the defendant.
Id. ¶¶ 42–48.18 Moreover, the number of times Thomas was
arrested without convictions was dwarfed by his 12 prior
adult arrests with convictions — as well as two additional
probation revocations. Id. ¶¶ 26–37. On that record, we
think it highly unlikely that it was Thomas’ few and mostly
stale arrests — rather than the sheer number of his convic-
had 6; Smith had 8. See Joaquin, 326 F.3d at 1289; Smith PSR
¶¶ 30–37.
17 See 18 U.S.C. § 3742(f)(1) (‘‘If the court of appeals determines
that the sentence was imposed TTT as a result of an incorrect
application of the sentencing guidelines, the court shall remand the
case for further sentencing proceedings with such instructions as
the court considers appropriate.’’).
18 A number of Thomas’ older arrests took place while he was in
the Army, and, while they did not lead to criminal convictions, they
did lead to Thomas’ undesirable discharge. Thomas PSR ¶¶ 42, 43,
45. Although Joaquin bars the consideration of a ‘‘ ‘prior arrest
record itself under § 4A1.3,’ without supporting evidence indicating
that [the defendant] had in fact engaged in prior criminal conduct
not resulting in a conviction,’’ Joaquin, 326 F.3d at 1293, an arrest
that results in a discharge from the military is adequately sup-
ported (by the fact of the discharge) such that a court can reason-
ably rely upon it. Cf. United States v. Ramirez, 11 F.3d 10, 13 (1st
Cir. 1993) (affirming the district court’s reliance on an arrest record
that was corroborated by extrinsic evidence); United States v.
Torres, 977 F.2d 321, 330 (7th Cir. 1992) (same).
18
tions — that led the district court to conclude that the
defendant’s criminal history category appropriately reflected
the seriousness of his criminal history. Thomas has thus
failed to demonstrate a reasonable likelihood that the court’s
erroneous reference to his arrests affected the sentence that
it imposed, and hence there is no reason for a remand.
III
For the foregoing reasons, we affirm the sentences imposed
on Thomas and Cook, and remand Smith’s sentence for
further proceedings consistent with this opinion.
So ordered.