United States v. Deondery Chambers, II

In the
United States Court of Appeals
For the Seventh Circuit
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No. 06-2405
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEONDERY CHAMBERS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:05-cr-40044-JLF—G. Patrick Murphy, Chief Judge.
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ARGUED DECEMBER 13, 2006—DECIDED JANUARY 9, 2007
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Before POSNER, MANION, and EVANS, Circuit Judges.
POSNER, Circuit Judge. The defendant pleaded guilty
to being a felon in possession of a firearm. The judge,
finding that the defendant had committed three crimes
of violence previously, sentenced him to 188 months as
an armed career criminal. 18 U.S.C. § 924(e). The only
question presented by the appeal is whether one of those
convictions, a conviction under Illinois law for escape,
was indeed a crime of violence. The answer depends
on whether escape “involves conduct that presents a
serious potential risk of physical injury to another.”
§ 924(e)(1). A jail break does; but Illinois defines felonious
2 No. 06-2405
escape not only as “intentionally escap[ing] from a penal
institution or from the custody of an employee of that
institution” but also as “knowingly fail[ing] to report to a
penal institution or to report for periodic imprisonment
at any time.” 720 ILCS 5/31-6(a). The defendant’s escape
was in the latter category—failing to report to a penal
institution. The charging document is not in the record,
but as summarized in the presentence investigation re-
port and not challenged by the defendant it states that on
four occasions he failed to report on schedule to a penal
institution after being convicted for drug possession,
robbery, and aggravated battery.
As an original matter, one might have doubted whether
failing to report to prison, as distinct from escaping from
a jail, prison, or other form of custody, was a crime that
typically or often “involves conduct that presents a serious
potential risk of physical injury to another.” United States
v. Golden, 466 F.3d 612, 616-17 (7th Cir. 2006) (Williams, J.,
dissenting). You could show up an hour late (without an
excuse) and be guilty of a felony that could result in
your receiving a 15-year mandatory minimum sentence
under the Armed Career Criminal Act. Had the defen-
dant been sentenced without the enhancement, his guide-
lines sentencing range would have been 130 to 162 months.
See U.S.S.G. §§ 2K2.1(a)(2), (b)(5), 3C1.2, E1.1(a), (b).
But the majority opinion in Golden, tracking our earlier
opinion in United States v. Bryant, 310 F.3d 550 (7th Cir.
2002), refused to carve the Illinois escape statute at the
joint, as it were, but held instead that any violation of the
statute is a crime of violence for purposes of the Act. The
other courts of appeals, except the D.C. and Ninth Circuits,
are in accord. United States v. Winn, 364 F.3d 7 (1st Cir.
2004); United States v. Luster, 305 F.3d 199, 202 (3d Cir.
No. 06-2405 3
2002); United States v. Jackson, 301 F.3d 59, 63 (2d Cir. 2002);
United States v. Turner, 285 F.3d 909, 915-16 (10th Cir. 2002);
United States v. Gay, 251 F.3d 950 (11th Cir. 2001) (per
curiam); United States v. Nation, 243 F.3d 467, 472 (8th Cir.
2001); United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999);
United States v. Harris, 165 F.3d 1062, 1068 (6th Cir. 1999);
United States v. Mitchell, 113 F.3d 1258, 1533 (10th Cir. 1997).
The D.C. Circuit reserved the issue in United States v.
Thomas, 333 F.3d 280, 282-83 (D.C. Cir. 2003). See also
United States v. Adkins, 196 F.3d 1112, 1119 (10th Cir. 1999)
(McKay, J., concurring), and Judge Rovner’s concurring
opinion in our Golden case. The Ninth Circuit ruled that
a peaceful failure to return, followed by the defendant’s
turning himself in rather than being recaptured, is not a
crime of violence. United States v. Piccolo, 441 F.3d 1084 (9th
Cir. 2006).
All these cases involved either a failure to return to a
halfway house—a type of failing to return that seems even
less violence-prone than failing to show up at prison,
because a violent prisoner would be less likely to be
serving a part of his sentence in a halfway house—or a
“walkaway” escape, which does not involve breaking
out of a building or wrestling free of guards. There would
be no impropriety in dividing escapes, for purposes of
“crime of violence” classification, into jail or prison breaks
on the one hand and walkaways, failures to report, and
failures to return, on the other. The sentencing judge
would not have to dig beneath the charging document or
the other, limited evidence on which a judge is permitted
by Shepard v. United States, 544 U.S. 13 (2005), to decide
which bin a conviction for escape belonged in.
But we shrink from trying to overrule a decision that is
only a few months old (Golden was decided on October 25,
4 No. 06-2405
2006), that tracked an earlier and materially identical
decision of this court (Bryant), and that has overwhelm-
ing support in the decisions of the other circuits. The
defendant has not presented us with arguments or evi-
dence that were overlooked or unavailable in the previous
cases. He cites us to United States v. Hagenow, 423 F.3d 638,
644-45 (7th Cir. 2005), which held that because the offense
of “confinement” in Indiana can be committed without
endangering the person confined, the sentencing judge
has to look behind the label of the defendant’s conviction
to see whether his conduct endangered anyone. But the
defendant in this case is not asking for a deeper investiga-
tion into the circumstances of his failure to report. He is
asking us to carve out noncustodial from custodial escape,
and that is the move rejected in Bryant and Golden, as
well as in the cases we cited from other circuits.
We shall adhere to the precedents for now. But it is an
embarrassment to the law when judges base decisions of
consequence on conjectures, in this case a conjecture as to
the possible danger of physical injury posed by criminals
who fail to show up to begin serving their sentences or
fail to return from furloughs or to halfway houses. The
head of the line of cases that lump all escapes together,
United States v. Goslin, 39 F.3d 1140, 1142 (10th Cir. 1994),
states in colorful language quoted in many of the subse-
quent cases that “every escape scenario is 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 . . . . A
defendant who escapes from a jail is likely to possess a
variety of supercharged emotions, and in evading those
trying to recapture him, may feel threatened by police
officers, ordinary citizens, or even fellow escapees . . . .
No. 06-2405 5
[E]ven in a case where a defendant escapes from a jail by
stealth and injures no one in the process, there is still a
serious risk that injury will result when officers find the
defendant and attempt to place him in custody.” (Emphasis
in original.) This is conjecture floating well free of any
facts—even the facts of Goslin. The opinion says nothing
about the nature of Goslin’s escape, but the reference
to escaping from a jail suggests that the court wasn’t
thinking about walkaway escapes, or failures to return or
report, but about jail breaks (most jail breaks are stealthy).
Its ruminations should not be treated as authoritative
in a case that does not involve a jail break.
The Sentencing Commission, or if it is unwilling a
criminal justice institute or scholar, would do a great
service to federal penology by conducting a study com-
paring the frequency of violence in escapes from custody
to the frequency of violence in failures to report or re-
turn. Should it turn out that the latter frequency is very
low, this would provide a powerful reason to reexamine
Bryant and Golden. Alternatively, Congress, which has
investigative tools, might examine the issue with a view
toward a possible clarification of 18 U.S.C. § 924(e)(1).
The most helpful analysis of escapes from United States
prisons that we have found, Richard F. Culp, “Frequency
and Characteristics of Prison Escapes in the United States:
An Analysis of National Data,” 85 Prison J. 270 (2005),
unfortunately excludes from its study “walkaways from
minimum-security facilities, failures to return from ap-
proved absences, and escapes from custody staff while
being transported outside,” id. at 275, although almost
90 percent of all escapes are walkaways. Id. at 278; Camille
Graham Camp & George M. Camp, “The Corrections
Yearbook 1997” 18 (Criminal Justice Institute, Inc., 1997).
6 No. 06-2405
And while the Culp study includes recaptures after an
escape, it does not reveal whether a recapture involved
violence. Id. at 281-82. More than 6 percent of the escapees
committed crimes while on the lam, and many of these
were violent crimes, id. at 285-86, but that is not evidence
that escape itself is likely to be violent; for all that ap-
pears, the escapees were merely resuming their previous
criminal careers. Six percent of the escapes in the study
involved violence against prison staff, id. at 285—violence
on the way out, as it were—but there is no indication of
how many of the recaptures (some 75 percent of escaped
prisoners are recaptured, id. at 282) involved violence.
The study notes that records of prison escapes are not
standardized and that recapture data are even less reli-
able than escape data. Id. at 271, 277, 281.
It is apparent that more research will be needed to
establish whether failures to report or return have
properly been categorized by this and most other courts
as crimes of violence. Notice too that if courts insist on
lumping all escapes together in determining whether
escape is a crime of violence, the enormous prepon-
derance of walkaways could well compel a conclusion
that escape is never a crime of violence. Some disag-
gregation seems indicated, but to do it sensibly we
judges need data.
AFFIRMED.
No. 06-2405 7
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-9-07