United States v. Marvin Kinsey

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0702n.06
No. 09-5202 FILED
Nov 15, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) On Appeal from the United States
) District Court for the Middle
MARVIN D. KINSEY, ) District of Tennessee
)
Defendant-Appellant. )
)
Before: BOGGS, MOORE, and SUTTON, Circuit Judges.
BOGGS, Circuit Judge. Marvin Kinsey, a federal prisoner, failed to return to a
halfway house and, after being apprehended, pled guilty to a violation of 18 U.S.C. § 751(a), the
federal escape statute. The sentencing judge determined that Kinsey’s offense constituted a “crime
of violence” for purposes of the Sentencing Guidelines and, pursuant to the “career offender”
provisions, sentenced him to 37 months in custody. We reverse.
I
Kinsey’s escape conviction arose out of his brief stay at a halfway house in Nashville. On
December 28, 2007, the Federal Bureau of Prisons transferred Kinsey to the halfway house to serve
the balance of his 51-month sentence for an earlier conviction. Kinsey was permitted to leave the
halfway house to work, and although Kinsey understood that it was a crime not to return to the
halfway house at the designated time, on March 25, 2008, he failed to return as required and was
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United States v. Marvin Kinsey
placed on escape status. On April 4, 2008, an officer stopped Kinsey’s vehicle. Kinsey fled on foot
and was apprehended three weeks later by the United States Marshals Service. Kinsey was charged
with federal escape in June 2008, and he pled guilty as charged on August 11, 2008.
The probation officer calculated Kinsey’s Guidelines range to be 27 to 33 months. The base
offense level for Kinsey’s violation of 18 U.S.C. § 751(a) is 13, and after subtracting two levels for
Kinsey’s acceptance of responsibility, the officer attributed to Kinsey a total offense level of 11.
Kinsey had a long criminal history, encompassing over twenty individual convictions. As a result,
the probation officer determined that Kinsey had 19 criminal history points, which placed him in
criminal history category VI. The sentencing table therefore indicated a recommended sentence of
27 to 33 months.
Kinsey’s sentencing hearing was held on October 31, 2008. At the hearing, the district court
judge determined that, if Kinsey’s escape qualified as a “crime of violence” for purposes of the
Sentencing Guidelines, then he would be classified as a “career offender,” which would increase his
offense level to 14 and his corresponding Guidelines range to 37 to 46 months. Noting that the
Supreme Court was about to decide a case on the issue of whether a failure to report constitutes a
crime of violence, the court suspended the hearing until after the Supreme Court had issued its
decision.
In January 2009, the Supreme Court decided Chambers v. United States and held that a
failure to report is not a “violent felony” for purposes of the Armed Career Criminal Act (“ACCA”).
129 S. Ct. 687, 693 (2009).
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The district court reconvened the sentencing hearing on February 9, 2009. At the hearing,
the sentencing judge reviewed Kinsey’s plea colloquy and decided that Kinsey’s escape was a crime
of violence because “the act of escape under the facts of this case was far more than just a failure to
return, particularly given his flight and resistance of the officer who stopped him.” Accordingly, the
sentencing judge increased Kinsey’s offense level to 14 and sentenced him to 37 months in custody,
which was at the bottom of the increased Guidelines range, but four months above the top of the
unadjusted range. On appeal, Kinsey argues that the sentencing judge erroneously classified his
conviction as a crime of violence. This court has jurisdiction to review the district court’s sentence
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
II
The district court’s interpretation of “crime of violence” in the Guidelines is a question of
law that this court reviews de novo. United States v. Amos, 501 F.3d 524, 526 (6th Cir. 2007). The
Sentencing Guidelines provide for harsher penalties if “the instant offense of conviction is a felony
that is . . . a crime of violence . . . .” U.S.S.G. §4B1.1(a). A crime of violence is defined as 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).
If the conviction is of one of the enumerated crimes or a crime with one of the enumerated
elements, then it is a crime of violence. Otherwise, the court must undertake a more probing analysis
to determine whether the crime “otherwise involves conduct that presents a serious potential risk of
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physical injury to another.” Fortunately, the steps of this analysis have been exhaustively analyzed
in prior decisions of the Supreme Court and this circuit. See, e.g., United States v. Anglin, 601 F.3d
523, 526-27 (6th Cir. 2010).
Generally, a court must conduct two inquiries. First, the court must determine whether the
crime involves conduct that creates a serious potential risk of injury. United States v. Ford, 560 F.3d
420, 421 (6th Cir. 2009). And second, the court must determine whether the crime involves “the
same kind of ‘purposeful, violent, and aggressive conduct’ as the listed crimes.” Ibid. (quoting
Begay v. United States, 553 U.S. 137, 144-45 (2008)). Guiding these inquiries is the “categorical
approach,” in which the court looks to “the statutory definition of the crime of conviction, [but] not
the facts underlying that conviction, to determine the nature of the crime.” Id. at 422.
Sometimes, however, the court must go further, as some criminal statutes can be violated
either by conduct that amounts to a crime of violence or by conduct that does not. Ibid. If this is the
case, then the court must look at the indictment, guilty plea, and similar documents to determine
whether those documents necessarily establish the nature of the committed crime. Ibid. (citing
Shepard v. United States, 544 U.S. 13, 26 (2005)). Notably, the Shepard documents may not be used
to examine “‘how an individual offender might have committed [the offense] on a particular
occasion,’ but only how an offense is ordinarily committed based upon its elements.” United States
v. Young, 580 F.3d 373, 381 (6th Cir. 2009) (quoting James v. United States, 550 U.S. 192, 208
(2007)). Thus, if a defendant commits a crime that is ordinarily nonviolent in a violent manner, the
crime is not converted into a crime of violence for purposes of the Sentencing Guidelines. See
Chambers, 129 S. Ct. at 690 (noting the need to “avoid[ ] the practical difficulty of trying to
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ascertain at sentencing . . . whether the present defendant’s prior crime, as committed on a particular
occasion, did or did not involve violent behavior”).
The Shepard inquiry is required if the statute explicitly lists multiple forms of conduct. Even
though all forms are criminalized under the same statute, they are treated differently for purposes of
determining whether the crime is a crime of violence under the Sentencing Guidelines. In Chambers
v. United States, for example, the Supreme Court considered an Illinois escape statute that
specifically included seven different types of escape, from “escape from a penal institution” to
“failing to abide by the terms of home confinement.” 129 S. Ct. at 691. The Court held that a
“failure to report” category of crime, although it is criminalized by a statute that also includes violent
conduct, is not a “violent felony” under ACCA, which is–for these purposes–treated exactly the same
as a “crime of violence” under the Guidelines. Id. at 693; Ford, 560 F.3d at 421.
Alternatively, a criminal statute may be so broadly worded that it encompasses multiple
categories of crimes even though it does not list them separately, and a Shepard inquiry is also
necessary in this situation. For example, in Ford, this court considered the Kentucky escape statute,
which broadly defines escape to include any unpermitted departure or failure to return. 560 F.3d at
422. Noting that the Shepard documents established that the defendant committed a walkaway type
of escape, the court held that–like a failure to report–a walkaway type of escape is not a crime of
violence. Id. at 426 (“Ford committed a ‘walkaway’ escape, which no doubt may create a greater
risk of physical injury than a failure to report, but which remains different from a jailbreak and other
crimes of violence both in kind and in its risk of physical injury to others.”).
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III
Kinsey was convicted of a violation of the federal escape statute. Our inquiry into whether
Kinsey committed a crime of violence begins with the text of that statute, which provides, in relevant
part:
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).
Because escape is not one of the enumerated crimes in the Guidelines’ definition of “crime
of violence” and, as written, does not contain any of the definition’s enumerated elements, it is a
crime of violence only if it “otherwise involves conduct that presents a serious potential risk of
physical injury to another.” U.S.S.G. § 4B1.2(a); see Ford, 560 F.3d at 421. This court has held that
§ 751(a) broadly prohibits different categories of conduct, at least some of which are not crimes of
violence. Anglin, 601 F.3d at 529 (“Like the Kentucky statute at issue in Ford, § 751(a) prohibits
a broad range of behavior, including an escape with the use of force at one end and a failure to report
at the other.”). In Anglin, this court held that § 751(a) encompasses at least three distinct categories
of crimes: “(1) failure to report, (2) so-called walkaway escapes, and (3) other escapes.” 601 F.3d
at 529. Applying Chambers and Ford, the Anglin court held that, under § 751(a), failures to report
and walkaway escapes are not crimes of violence. Ibid. Because the Anglin court lacked an
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adequate record from which to determine the nature of the defendant’s § 751(a) conviction, it
remanded the case to the district court to determine whether the underlying crime was a crime of
violence, noting that the government bears the burden of proving that the defendant’s escape was
such a crime. Id. at 529-30.
With that background, the only remaining question is whether the Shepard documents in the
record establish that Kinsey’s crime was of a non-violent type. A plea colloquy is a valid Shepard
document, Shepard, 544 U.S. at 26, and here, the plea colloquy conclusively establishes that
Kinsey’s escape was of the “failure to report” type. The plea colloquy transcript reflects that the
parties accepted the following facts: “On March 25, 2008, Kinsey was permitted to leave [the
halfway house] to go to work, and he was due to return at 8:00 p.m. Kinsey failed to return to [the
halfway house] on March 25th, 2008[,] as required, and as a result, he was placed on escape status.”
The Supreme Court has defined a failure-to-report crime as “a failure to present oneself for detention
on a specified occasion.” Chambers, 129 S. Ct. at 691. Kinsey was supposed to present himself at
8:00 p.m. on March 25, 2008, and he failed to do so. Accordingly, his § 751(a) violation was a
failure to report. This court has held that a failure to report under § 751(a) is not a crime of violence,
and this ends the inquiry. Anglin, 601 F.3d at 529.
Although the plea colloquy also indicates that Kinsey later fled from a police officer, which
arguably created a serious risk of violence, the relevant inquiry is what category of escape Kinsey
committed, and whether that category of escape–as ordinarily committed–constitutes a crime of
violence. The inquiry is not the risk of violence that Kinsey actually created, and the fact that he
later fled from an officer is therefore immaterial to the issue at hand. Notably, by fleeing from the
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officer, Kinsey may have committed another crime–separate from his § 751(a) failure to report–and
that separate crime may indeed constitute a crime of violence. But Kinsey was not so convicted,
and his relevant conviction here was for escape, which in this case does not constitute a crime of
violence. Because we hold that Kinsey’s conduct was of a type that is not a crime of violence, it is
not necessary for this court to decide whether a § 751(a) conviction could ever, under a different set
of circumstances, constitute a crime of violence. Cf. United States v. Hart, 578 F.3d 674, 681 (7th
Cir. 2009) (holding that, as a categorical matter, a violation of § 751(a) is never a crime of violence);
but see United States v. Hughes, 602 F.3d 669, 676-77 (5th Cir. 2010) (holding that a § 751(a)
conviction for an escape from a detention center is a violent felony under ACCA, but not reaching
the question of whether other forms of conduct reached by § 751(a) constitute violent felonies).
The government argues that, because the Supreme Court has held that § 751(a) is a
“continuing offense,” the court must consider the risk of violence when reapprehending the escapee,
and that this risk establishes that a failure to report is a crime of violence. United States v. Bailey,
444 U.S. 394, 413 (1980) (holding “that [because] escape from federal custody as defined in § 751(a)
is a continuing offense,” a necessity or duress defense must excuse both the defendant’s initial
escape from custody and his failure to return). However, Anglin has already ruled that failures to
report under § 751(a) are not crimes of violence for purposes of the sentencing guidelines. 601 F.3d
at 529. Further, in Chambers, the Supreme Court itself foreclosed any argument that the risk of
violence during reapprehension establishes that a failure to report is a crime of violence. 129 S. Ct.
at 692-93 (holding that the proper inquiry is “whether such an offender is significantly more likely
than others to . . . produc[e] a ‘serious potential risk of physical injury,’” and that the Sentencing
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Commission’s report indicates that violence when apprehending failure-to-report offenders is
extremely rare).
IV
For these reasons, we REVERSE the decision of the district court and REMAND for
resentencing in accordance with our determination that Kinsey’s violation of § 751(a) was not a
crime of violence.
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KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I concur in
the judgment.
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