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3,666,650
| 11,781,059
|
2006-08-02
|
United States District Court for the Northern District of Ohio
|
Rhodes v. United States
|
Rhodes v. United States, 443 F. Supp. 2d 893 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_6
|
even in a case where a defendant escapes from a jail by stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody.
|
In holding as such, the Sixth Circuit adopted the Tenth Circuit’s reasoning that “[e]very 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” and that “
|
3,666,650
| 11,781,059
|
2006-08-02
|
United States District Court for the Northern District of Ohio
|
Rhodes v. United States
|
Rhodes v. United States, 443 F. Supp. 2d 893 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_3
|
by its nature, presents a serious potential risk of physical injury and thus constitutes a crime of violence under § 4B 1.2.
|
Base Offense Level (Apply the Greatest):
(4) 20, if—
(A) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense; or
(B) the offense involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30); and the defendant (i) was a prohibited person at the time the defendant committed the instant offense; or (ii) is convicted under 18 U.S.C. § 922(d);
(5) 18, if the offense involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(3);
(6) 14, if the defendant (A) was a prohibited person at the time the defendant committed the instant of fense; or (B) is convicted under 18 U.S.C. § 922(d).
U.S.S.G. § 2K2.1(a). The application note to this Guideline indicates that “crime of violence” has the meaning given it in § 4B1.2(a) and Application Note 1 of the Commentary to that section.
Application Note 5 to § 2K2.1(a). § 4B1.2(a) defines “crime of violence” 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 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.
The Application Notes following this section further outline those crimes considered to be “crimes of violence”.
However, in United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999), the Sixth Circuit Court of Appeals adopted the reasoning of the Tenth Circuit Court of Appeals in finding that the crime of escape “
|
3,666,650
| 11,781,059
|
2006-08-02
|
United States District Court for the Northern District of Ohio
|
Rhodes v. United States
|
Rhodes v. United States, 443 F. Supp. 2d 893 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_12
|
any person confined in a county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction of a criminal offense constituting a felony [to] escape or attempt to escape therefrom....
|
” The statute in Harris concerned former Tennessee Code Annotated § 39-5-706 which made it a felony for “any person confined in a county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction of a criminal offense constituting a felony [to] escape or attempt to escape therefrom....
|
3,979,641
| 11,781,059
|
2008-10-15
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Stapleton
|
United States v. Stapleton, 297 F. App'x 413 (2008)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_10
|
part of a pattern indicative of bad faith,
|
Counsel for defendant then moved for a mistrial, objecting to the witness’s suggestion “that my client should have plead guilty as well because they’re both charged with the same conspiracy[.]” The district court denied the motion for a mistrial, finding that it was appropriate for the government to question a testifying coconspirator about the fact that he had pleaded guilty.
The district court’s ruling on the motion for a mistrial is reviewed for abuse of discretion. See United States v. Harris, 165 F.3d 1062, 1066 (6th Cir.1999). In determining whether improper witness statements affected the substantial rights of the defendant so as to warrant a new trial, the factors to be considered are: (1) whether the government’s line of inquiry was reasonable and justified by the circumstances of the witness being questioned; (2) whether there was any showing that the government acted in bad faith or otherwise deliberately injected the witness’s stray remarks; (3) whether the remarks were detailed or of major importance when compared with the other evidence against the defendant; and (4) whether a curative instruction was sought or given. Id.-, United States v. Terry, 729 F.2d 1063, 1070 (6th Cir.1984).
In this case, the government’s line of inquiry was reasonable under the circumstances. Counsel for the government indicated that they wanted to bring out the fact that McGhee’s motive for testifying was to help his mother avoid jail time for his actions in getting her involved in the offense. Government counsel indicated that they did not know or anticipate that McGhee was going to make the statement about other defendants choosing not to plea guilty, nor did they prompt him to make the statement. The remark was isolated, rather than being “
|
3,883,527
| 11,781,059
|
2008-11-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Estrada
|
United States v. Estrada, 313 F. App'x 799 (2008)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_10
|
the district court gave an immediate and clear limiting instruction
|
And Little later testified that these dollar amounts corresponded to pounds of marijuana (i.e. “a dollar” equals 100 pounds).
Under our deferential review of the district court’s factual findings, we conclude that the district court did not clearly err in applying Rule 801(d)(2)(E) to admit Arnold’s statements at trial.
B. Willie’s Motion for Mistrial
Willie also argues that the district court abused its discretion in denying his motion for mistrial because: (1) Little mentioned Willie’s prior convictions; (2) the court admitted irrelevant photographs of both Mike and Desi Sr. Estrada; (3) the court implicitly allowed Little to speak to Agent Mclsaac during a trial break; and (4) the court admitted wire-intercepted statements of Desi Jr. Estrada under Rule 801(d)(2)(E). See United States v. Childs, 539 F.3d 552, 562 (6th Cir.2008) (applying an abuse-of-discretion standard). We reject each of these arguments, treating them in turn.
1. Willie’s Prior Convictions
During his testimony, Little mentioned that Willie “had previous convictions.” When Willie objected and moved for new trial, the district court instructed the jury to disregard the statement but denied Willie’s motion.
This is not, as Willie claims, a futile attempt to “unring a bell.” United States v. Murray, 784 F.2d 188, 189 (6th Cir.1986). United States v. Stotts, 176 F.3d 880, 887 (6th Cir.1999); see United States v. Harris, 165 F.3d 1062, 1066 (6th Cir.1999) (affirming the denial of a motion for mistrial where “
|
3,883,527
| 11,781,059
|
2008-11-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Estrada
|
United States v. Estrada, 313 F. App'x 799 (2008)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_10
|
the officer’s stray remark constituted only a minuscule part of the evidence against [the defendant]
|
”); Harris, 165 F.3d at 1066 (noting that “
|
4,057,751
| 11,781,059
|
2009-09-04
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Young
|
United States v. Young, 580 F.3d 373 (2009)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
has as an element the use, attempted use, or threatened use of physical force against the person of another,
|
Indeed, during sentencing, the district judge acknowledged on three occasions that the only issue preserved for appeal was the ACCA enhancement, and neither Young nor his counsel objected otherwise. Thus, Young is barred from raising the suppression issue on appeal.
III.
Young also challenges his 15-year mandatory minimum sentence. ACCA imposes a 15-year mandatory minimum sentence when a defendant convicted of § 922(g) has three or more prior convictions qualifying as “violent felonies” or “serious drug offenses.” 18 U.S.C. § 924(e)(1). Young concedes that two of his prior offenses qualify as serious drug offenses, but he argues that his 1997 conviction for fleeing and eluding, second offense under Michigan law does not qualify as a violent felony under ACCA.
The fleeing-and-eluding statute under which Young was convicted states, in relevant part, as follows:
A driver of a motor vehicle who is given by hand, voice, emergency light, or siren a visual or audible signal by a police or conservation officer, acting in the lawful performance of his or her duty, directing the driver to bring his or her motor vehicle to a stop, and who willfully fails to obey that direction by increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude the police or conservation officer, is guilty of a misdemeanor, and shall be punished by imprisonment for not less than 30 days nor more than 1 year....
Mich. Comp. Laws § 257.602a(l) (1996). If a person violates that provision within five years of a prior fleeing-and-eluding conviction, the offense is punishable as a felony by a term of imprisonment up to and including four years.
A “violent felony” under ACCA is an offense that is punishable by a term of imprisonment exceeding one year and either (1) “
|
4,057,751
| 11,781,059
|
2009-09-04
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Young
|
United States v. Young, 580 F.3d 373 (2009)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another.
|
” 18 U.S.C. § 924(e)(2)(B). Young’s offense was punishable by a term of imprisonment exceeding one year, as he was convicted for a second fleeing and eluding offense within five years; thus, Young’s fleeing- and-eluding conviction satisfies the threshold requirement of ACCA. Thus, the issue before the Court is whether Young’s conviction falls under ACCA’s “residual clause” — that is, whether it “
|
4,133,654
| 11,781,059
|
2010-03-05
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Dehlinger
|
United States v. Dehlinger, 368 F. App'x 439 (2010)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_10
|
the district court gave an immediate and clear limiting instruction
|
Cauthen’s statement was one line in a four-day trial replete with evidence establishing Dehlinger’s guilt, including signed fraudulent tax returns. See United States v. Harris, 165 F.3d 1062, 1066 (6th Cir.1999) (affirming the district court’s denial of a motion for mistrial after a brief reference to a prior arrest where “
|
5,354,519
| 11,781,059
|
2006-03-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Anglin
|
United States v. Anglin, 169 F. App'x 971 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
has as an element the use, attempted use, or threatened use of physical force against the person of another.
|
We review de novo the district court’s interpretations of the sentencing guidelines, and we review its factual findings for clear error. United States v. Williams, 411 F.3d 675, 677 (6th Cir.2005); United States v. Burke, 345 F.3d 416, 428 (6th Cir.2003). We must defer to the district court’s application of the guidelines to the facts. United States v. Charles, 138 F.3d 257, 266 (6th Cir.1998).
The sentencing guidelines provide for a sentence enhancement based on the defendant’s status as a “career offender,” as defined in U.S.S.G. § 4B1.1. That section provides that, in order to be classified as a career offender: (1) the defendant must have been 18 years old when he committed the offense for which he is to be sentenced; (2) that offense must have been a felony constituting either a “crime of violence” or a “controlled substance offense”; and (3) the defendant must have had at least two prior felony convictions falling into one or the other of those categories. U.S.S.G. § 4B 1.1(a). Anglin admitted at sentencing that he had been convicted of the burglary and that burglary is an enumerated “crime of violence,” and he did not urge further his objection to that conviction’s being counted in the career offender calculation. Nor does he pursue that claim on appeal.
Anglin’s challenge is to the use of his escape conviction in the career offender calculation. Anglin pled guilty in 1995 to a violation of the federal escape statute, which provides that it is an offense against the United States to escape from a penal institution or from various forms of “custody.” Section 751 is not one of the crimes specifically listed in the guidelines as a per se crime of violence, but it may still be considered one if it “
|
5,354,519
| 11,781,059
|
2006-03-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Anglin
|
United States v. Anglin, 169 F. App'x 971 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_12
|
any person confined in a county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction of a criminal offense constituting a felony [to] escape or attempt to escape therefrom....
|
U.S.S.G. § 4B1.2(a)(2).
In Hams, on which the district court relied in this case, we addressed the same question we address here, except that Harris’s prior escape conviction was under the Tennessee statute relating to escape. The Tennessee statute made it a crime for “any person confined in a county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction of a criminal offense constituting a felony [to] escape or attempt to escape therefrom....
|
5,354,519
| 11,781,059
|
2006-03-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Anglin
|
United States v. Anglin, 169 F. App'x 971 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_8
|
[t]he question, then, comes down to this: Did the escape offense ‘otherwise involve [] conduct that presented] a serious potential risk of physical injury to another’ within the meaning of [U.S.S.G. § 4B1.2(a)(2) ]?
|
We recognized that Harris’s offense was neither a burglary nor one of the other enumerated ■ offenses listed in U.S.S.G. § 4B1.2, stating that “
|
3,387,943
| 11,781,059
|
2006-08-15
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Davis
|
United States v. Davis, 458 F.3d 505 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_11
|
that a limited inquiry into his actual conduct at the time of his escape ..., coupled with other relevant facts, might appropriately lead the sentencing court to con-elude that a downward departure is warranted here.
|
” J.A. at 19-24 (Sentencing Tr. at 4-9). The district court overruled this objection, J.A. at 20-22 (Sentencing Tr. at 5-7), and Davis does not press it on appeal.
3
. Harris suggested "that a limited inquiry into his actual conduct at the time of his escape..., coupled with other relevant facts, might appropriately lead the sentencing court to con-elude that a downward departure is warranted here.
|
3,512,822
| 11,781,059
|
2007-07-12
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Collier
|
United States v. Collier, 493 F.3d 731 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves' conduct that presents a serious potential risk of physical injury to another.
|
Collier pleaded guilty, but after learning that he faced not a ten-year maximum sentence but a fifteen-year minimum sentence under the ACCA, he withdrew his guilty plea. In exchange for the i government’s agreement to dismiss other charges, Collier again pleaded guilty.
The Presentence Investigation Report (“PSIR”) concluded that Collier had three prior “violent felonies” under the ACCA and thus faced a base-offense level of 33 under U.S.S.G. § 4B1.4(b)(3)(B). The three Michigan felonies said to qualify were (1) breaking and entering a dwelling with intent to commit larceny, (2) prison escape, and (3) fourth-degree fleeing and eluding a police officer. At sentencing, defense counsel conceded that breaking and entering is a “violent felony,” but argued that the other two are not. The court determined that these two offenses are “violent felonies.”. Collier appealed, renewing his argument that neither prison escape nor fourth-degree fleeing and eluding is a “violent felony.”
II
This court reviews de novo a district court’s legal conclusion that a crime constitutes a “violent felony” under the ACCA. United, States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005) (citing United States v. Martin, 378 F.3d 578, 580 (6th Cir.2004), and United States v. Cooper, 302 F.3d 592, 594 (6th Cir.2002)). The ACCA provides that anyone convicted as á felon in possession of a firearm, 18 U.S.C. § 922(g)(1), after having been convicted of three “violent felonies” shall be imprisoned for not less than fifteen years, id. § 924(e)(1). Neither of the two offenses at issue on appeal is an enumerated offense, involves explosives, or has force as an element — instead, whether either is a “violent felony” turns on whether it “
|
3,512,822
| 11,781,059
|
2007-07-12
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Collier
|
United States v. Collier, 493 F.3d 731 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_12
|
‘any person confined in a county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction of a criminal offense constituting a felony [to] escape or attempt to escape therefrom.’
|
Id.
Collier argues that his Michigan conviction for prison escape is not a “violent felony” under the ACCA. We agree.
A. Taylor’s Categorical Approach
Michigan defines prison escape, in relevant part, as follows:
(1) A person imprisoned in a prison of this state who breaks prison and escapes, breaks prison though an escape is not actually made, escapes, leaves the prison without being discharged by due process of law, attempts to break prison, or attempts to escape from prison, is guilty of a felony, punishable by further imprisonment for not more than 5 years.... (3) A person who escapes from the lawful custody of a guard, prison official, or an employee while outside the confines of a prison is guilty of a violation of this section.
Mich. Comp. Laws Ann. § 750.193. The appellate record does not include the charging documents or jury instructions, which leaves only the statutory definition under Taylor s “categorical approach.” The Tennessee statute at issue in Harris made it a felony for “ ‘any person confined in a county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction of a criminal offense constituting a felony [to] escape or attempt to escape therefrom.
|
3,512,822
| 11,781,059
|
2007-07-12
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Collier
|
United States v. Collier, 493 F.3d 731 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_12
|
confined in a county workhouse or jail or city jail or municipal detention facility.
|
Id. at 1067 (quoting Tenn.Code Ann. § 39-5-706 (repealed 1989)). Harris held this offense a “crime of violence,” reasoning that
[E]very 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. Consequently, violence could erupt at any time. Indeed, even in a ease where a defendant escapes from a jail by stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody.
Id. at 1068 (quoting United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.1994)).
First, Harris involved former Tennessee Code § 39-5-706, which applied to prisoners “
|
3,512,822
| 11,781,059
|
2007-07-12
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Collier
|
United States v. Collier, 493 F.3d 731 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another.
|
Id. at 1067. A jailbreak certainly deserves categorical treatment as a “violent felony,” and we therefore cannot quarrel with the result of Harris (or Gosling, which considered a state statute concerning escapes from “County Jail”). See Gosling, 39 F.3d at 1142 (citing N.D. Cent.Code § 12-16-05 (repealed 1973)). We doubt that a statute covering this “failure to report” variety of escape necessarily “
|
3,512,822
| 11,781,059
|
2007-07-12
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Collier
|
United States v. Collier, 493 F.3d 731 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another.
|
We conclude that even with the aid of these sources, the government cannot carry its burden of demonstrating that Michigan’s escape offense “
|
6,052,202
| 11,781,059
|
2008-10-28
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Kuehne
|
United States v. Kuehne, 547 F.3d 667 (2008)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_10
|
the remark was isolated and the district court gave an immediate curative instruction
|
See United States v. Moore, 376 F.3d 570, 574 (6th Cir.2004) (noting that testimony in a bank robbery trial establishing that a defendant met a co-conspirator while in prison was not improper inasmuch as it proved a “prior relationship” that “was relevant in proving that the [co-conspirators] had a common plan”); see also United States v. Harris, 165 F.3d 1062 (6th Cir.1999) (upholding conviction where government witness made passing reference to defendant’s prior arrest). See United States v. Stotts, 176 F.3d 880, 886-87 (6th Cir.1999) (holding that a district court properly denied the defendant’s request for a mistrial following a witness’ statement that the defendant had “ ‘an extensive criminal record’ ” because “
|
11,386,595
| 11,781,059
|
2002-09-24
|
United States Court of Appeals for the Third Circuit
|
United States v. Luster
|
United States v. Luster, 305 F.3d 199 (2002)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_2
|
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. Consequently violence could erupt at any time.
|
”?
We hold that the answer to Luster’s question is yes. Escape is a continuing crime; it does not end when the escapee completes the act of leaving a correctional facility. As the Tenth Circuit noted, an escapee “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.
|
11,386,595
| 11,781,059
|
2002-09-24
|
United States Court of Appeals for the Third Circuit
|
United States v. Luster
|
United States v. Luster, 305 F.3d 199 (2002)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_9
|
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.
|
Thus, “
|
11,454,797
| 11,781,059
|
2000-03-29
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Butler
|
United States v. Butler, 207 F.3d 839 (2000)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_0
|
[i]f the defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense,
|
We have consistently held that the decision by a district court not to depart downwards from the Guidelines is not reviewable on appeal unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure. See United States v. Landers, 39 F.3d 643, 649 (6th Cir.1994).
Although Butler contends that the district court should have granted him a downward departure on the grounds that he had a diminished capacity due to alcohol and drug abuse and because he had a traumatic childhood, he does not argue— likely because he cannot — that the district court did not understand its ability to make such a departure. Indeed, the district court stated:
There is really not anything factually about this case that would warrant a downward departure. The defendant’s family circumstances and his background are not unusual. They are relatively typical of people engaged in criminal conduct. There is no indication that his drug or alcohol use in any way constituted diminished capacity as contended in the objections. There is just nothing in this case that would amount to either an appropriate legal basis for a downward departure or that would amount to an appropriate legal basis for a downward departure or that would factually amount to an appropriate reason to go below the guideline range.
(J.A. at 113.) It seems clear that the district court recognized its power to depart downwards but merely exercised its discretion not to do so. Consequently, the district court’s failure to grant Butler a downward departure is not reviewable. Because Butler’s arguments are meritless, his sentence is affirmed. Section 3B1.4 provides that “
|
11,417,049
| 11,781,059
|
2002-08-22
|
United States Court of Appeals for the Second Circuit
|
United States v. Jackson
|
United States v. Jackson, 301 F.3d 59 (2002)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another.
|
Jackson’s escape therefore can be classified as a “violent felony” only if it “
|
11,417,049
| 11,781,059
|
2002-08-22
|
United States Court of Appeals for the Second Circuit
|
United States v. Jackson
|
United States v. Jackson, 301 F.3d 59 (2002)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
conduct that presents a serious potential risk of physical injury to another
|
In determining whether Jackson’s prior conviction for escape constitutes a violent felony under § 924(e), we take a “categorical approach,” generally looking only to the fact of conviction and the statutory definition of the prior offense rather than to the underlying facts of a particular offense.
Jackson argues that an escape is not categorically “
|
11,417,049
| 11,781,059
|
2002-08-22
|
United States Court of Appeals for the Second Circuit
|
United States v. Jackson
|
United States v. Jackson, 301 F.3d 59 (2002)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
conduct that presents a serious potential risk of physical injury to another.
|
Jackson argues that an escape is not categorically “conduct that presents a serious potential risk of physical injury to another” because the Florida escape statute (under which he was convicted) punishes the escapee who peaceably walks away from a work site as well as the inmate who violently busts out of confinement. The question presented is therefore whether escape, regardless of the particular circumstances, amounts to a violent felony under § 924(e); that is, whether every escape constitutes “
|
11,417,049
| 11,781,059
|
2002-08-22
|
United States Court of Appeals for the Second Circuit
|
United States v. Jackson
|
United States v. Jackson, 301 F.3d 59 (2002)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
conduct that presents a serious potential risk of physical injury to another.
|
Every circuit court that has considered the issue has held that an escape, from whatever location by whatever means, constitutes “
|
11,417,049
| 11,781,059
|
2002-08-22
|
United States Court of Appeals for the Second Circuit
|
United States v. Jackson
|
United States v. Jackson, 301 F.3d 59 (2002)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
conduct that presents a serious potential risk of physical injury to another.
|
See, e.g., United States v. Hairston, 71 F.3d 115, 117-18 (4th Cir.1995); United States v. Houston, 187 F.3d 593, 594-95 (6th Cir.1999); United States v. Moudy, 132 F.3d 618, 620 (10th Cir.1998). Several courts have considered whether escape constitutes a “crime of violence” under that provision, and they agree that any escape, however effected, constitutes “
|
11,093,314
| 11,781,059
|
2001-04-10
|
United States District Court for the Eastern District of Michigan
|
United States v. A.F.F.
|
United States v. A.F.F., 144 F. Supp. 2d 809 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
a felony offense that has an element thereof the use, attempted use, or threatened use of physical force against the person of another....
|
” (Emphasis added).
In this case, the government failed to move for mandatory transfer on a timely basis. Therefore, the issue is not properly before the Comb.
Furthermore, mandatory transfer is not appropriate in this case because all of the prerequisites of the statute have not been satisfied. Mandatory transfer occurs when (1) the defendant is charged with committing one of the statutorily enumerated or categorized felonies; (2) the defendant was over sixteen years of age at the time of the offense; and (3) the defendant had previously been found guilty of committing an offense which, if committed by an adult, would have been one of the enumerated or categorized offenses.
Although first-degree murder is not one of the offenses listed by reference to a statutory section, it certainly falls within the category of “
|
11,093,314
| 11,781,059
|
2001-04-10
|
United States District Court for the Eastern District of Michigan
|
United States v. A.F.F.
|
United States v. A.F.F., 144 F. Supp. 2d 809 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involved conduct that presents a serious risk of physical injury to another-
|
Home invasion in the second degree is defined by Mich.Comp.L. § 750.110a(3) (1999), which states:
A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault is guilty of home invasion in the second degree.
The elements of this crime are (1) a breaking, (2) an entry, and (3) specific intent to commit a felony or a listed crime. See People v. Toole, 227 MichApp. 656, 658, 576 N.W.2d 441 (1998); People v. Adams, 202 MichApp. 385, 390, 509 N.W.2d 530 (1994). The statutory definition of this offense does not require proof of the use or threatened use of physical force against the person of another as a necessary element, although the crime itself could involve such an element if the charged intent was to commit an “assault.”
Generally, when determining whether an offense will serve as a statutory predicate, appellate courts prescribe a categorical approach, which discourages an examination of underlying conduct. The answer turned on whether the crime “
|
11,093,314
| 11,781,059
|
2001-04-10
|
United States District Court for the Eastern District of Michigan
|
United States v. A.F.F.
|
United States v. A.F.F., 144 F. Supp. 2d 809 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
conduct that presents a serious risk of physical injury to another,
|
Id. (Emphasis by the Court). The Court observed:
The debate at the 1986 hearings centered upon whether any property crime should be included as predicate offenses, and if so, which ones.
Id. at 589,110 S.Ct. 2143.
The Court considered the defendant’s argument that it should narrowly confine the definition of “burglary” to those offenses which involve a risk that physical force against another person may be used in committing the crime.
Petitioner essentially asserts that Congress meant to include as predicate offenses only a subclass of burglaries whose elements include “
|
11,093,314
| 11,781,059
|
2001-04-10
|
United States District Court for the Eastern District of Michigan
|
United States v. A.F.F.
|
United States v. A.F.F., 144 F. Supp. 2d 809 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another.
|
But if this were Congress’ intent, there would have been no reason to add the word “burglary” to § 924(e)(2)(B)(ii), since that provision already includes any crime that “
|
11,099,063
| 11,781,059
|
2001-05-18
|
United States Court of Appeals for the Eleventh Circuit
|
United States v. Gay
|
United States v. Gay, 251 F.3d 950 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involves conduct that presents a serious potential risk of physical injury to another,
|
Nevertheless, the court determined that an escape conviction is an offense that "
|
11,099,063
| 11,781,059
|
2001-05-18
|
United States Court of Appeals for the Eleventh Circuit
|
United States v. Gay
|
United States v. Gay, 251 F.3d 950 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
serious potential risk of physical injury to another
|
Nevertheless, the court determined that an escape conviction is an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another," and, as such, overruled Gay's objection. The court also concluded that, because the government was not contesting the fact that the escape charge was based upon Gay leaving a community corrections center without authorization, and because the law does not support a broad review of the circumstances of the escape, it would not grant Gay's motion for an evidentiary hearing. Gay asserts that the court mistakenly believed that it was precluded from holding such a hearing and believing that a hearing would be futile because all escapes inherently possess the "
|
11,099,063
| 11,781,059
|
2001-05-18
|
United States Court of Appeals for the Eleventh Circuit
|
United States v. Gay
|
United States v. Gay, 251 F.3d 950 (2001)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
presents a serious potential risk of physical injury to another.
|
While this Court has not decided whether escape is a crime of violence under § 4B1.2(a), every other circuit that has applied this analysis has determined that escape does involve conduct that “
|
9,109,782
| 11,781,059
|
2003-07-08
|
United States Court of Appeals for the District of Columbia Circuit
|
United States v. Thomas
|
United States v. Thomas, 333 F.3d 280 (2003)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_8
|
by its nature, presented a serious potential risk of physical injury to another.
|
U.S.S.G. § 2K2.1(a)(4)(A). Application Note 5 to § 2K2.1(a)(4)(A) states that the term “crime of violence” is given the meaning outlined in § 4B1.2(a). U.S.S.G. § 2K2.1 cmt. n.5. Section 4B1.2(a) defines a “crime of violence” as:
[A]ny 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 person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves the use of expío- sives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). Application Note 1 to U.S.S.G. § 4B1.2 provides that:
“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved the use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. The current dispute concerns whether it fits the definition borrowed from the application note of U.S.S.G. § 4B1.2 — more specifically, whether the offense “
|
9,109,782
| 11,781,059
|
2003-07-08
|
United States Court of Appeals for the District of Columbia Circuit
|
United States v. Thomas
|
United States v. Thomas, 333 F.3d 280 (2003)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_9
|
[ejvery escape ... ‘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.’
|
The Nation court concluded that escape categorically fits that description, because “[ejvery escape... ‘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.
|
242,848
| 11,781,059
|
2003-11-03
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Douglas
|
United States v. Douglas, 80 F. App'x 450 (2003)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_6
|
‘even in a case where a defendant escapes from a jail by stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody.’
|
Over Douglas’s objections that his prior felonies did not qualify as predicate offenses, the district court found that the PSR was correct and sentenced Douglas to 224 months in prison, 5 years of supervised release, $3,565 in restitution, and a $200 special assessment.
In his timely appeal, Douglas reasserts his objections to his designation as a career offender.
This court reviews de novo questions concerning the interpretation of the sentencing guidelines. Mallett v. United States, 334 F.3d 491, 500 (6th Cir.2003); United States v. Dolt, 27 F.3d 235, 237 (6th Cir.1994) (reviewing de novo the determination that a defendant is a career offender). Upon review, we conclude that the district court properly sentenced Douglas as a career offender.
Douglas first contends that the district court erred by not conducting a limited factual inquiry into the escape conviction to determine if his conduct presented a serious potential risk of physical injury to another and thus qualified as a predicate conviction under USSG § 4B1.1. He argues that the statute of conviction does not categorically make escape a crime of violence because the offense of escape includes the failure to return to custody following a temporary leave. See Tenn. Code Ann. § 39-16-601(3) and § 39-16-605.
The district court properly determined that Douglas’s escape conviction counted as a prior felony conviction for purposes of the career offender guideline. In United States v. Harris, 165 F.3d 1062 (6th Cir.1999), this court found that the offense of escape qualified as a crime of violence because escape posed a serious potential risk of physical injury. The court adopted the rationale employed by the Tenth Circuit in United States v. Gosling, 39 F.3d 1140 (10th Cir.1994), which held that “ ‘even in a case where a defendant escapes from a jail by stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody.
|
1,037,309
| 11,781,059
|
2006-04-03
|
United States Court of Appeals for the Ninth Circuit
|
United States v. Piccolo
|
United States v. Piccolo, 441 F.3d 1084 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
an element the use, attempted use, or threatened use of physical force against the person of another,
|
” Ultimately, however, the district court ruled that under the analysis set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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.
We review the district court’s interpretation of the Sentencing Guidelines de novo. United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006). We also review de novo the determination of career-offender status under U.S.S.G. § 4B1.1. United States v. Kelly, 422 F.3d 889, 891-92 (9th Cir.2005).
Because escape is neither specifically enumerated under U.S.S.G. § 4B1.2 nor has as “
|
1,037,309
| 11,781,059
|
2006-04-03
|
United States Court of Appeals for the Ninth Circuit
|
United States v. Piccolo
|
United States v. Piccolo, 441 F.3d 1084 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
conduct that presents a serious potential 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 another,” the offense, to qualify as a crime of violence, must fall within the “catchall” provision of § 4B1.2(a)(2) for “
|
1,037,309
| 11,781,059
|
2006-04-03
|
United States Court of Appeals for the Ninth Circuit
|
United States v. Piccolo
|
United States v. Piccolo, 441 F.3d 1084 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
an element the use, attempted use, or threatened use of physical force against the person of another.
|
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 particular problem did not preclude us from adopting the categorical approach.
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)(l) 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.
Ill
As previously noted, the definition of “crime of violence” under U.S.S.G. § 4B1.2 does not specifically mention “escape. Moreover, an escape under § 751(a) does not have as “
|
1,037,309
| 11,781,059
|
2006-04-03
|
United States Court of Appeals for the Ninth Circuit
|
United States v. Piccolo
|
United States v. Piccolo, 441 F.3d 1084 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
every escape involves a serious potential risk of physical injury to another
|
See, e.g., United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004) (the “categorical approach forecloses the conclusion” that failure to return to a halfway house would not “present a serious risk of injury to another”); United States v. Thomas, 361 F.3d 653, 657-60 (D.C. Cir.2004) (concluding under a categorical approach that “the offense of escape is a crime of violence within the meaning of... § 4131.2(a)”), vacated and remanded, 543 U.S. 1111, 125 S.Ct. 1056, 160 L.Ed.2d 1045 (2005) (remanding in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)); United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002) (failure to report back to halfway house constitutes a crime of violence because “
|
1,037,309
| 11,781,059
|
2006-04-03
|
United States Court of Appeals for the Ninth Circuit
|
United States v. Piccolo
|
United States v. Piccolo, 441 F.3d 1084 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_9
|
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.
|
See, e.g., United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004) (the “categorical approach forecloses the conclusion” that failure to return to a halfway house would not “present a serious risk of injury to another”); United States v. Thomas, 361 F.3d 653, 657-60 (D.C. Cir.2004) (concluding under a categorical approach that “the offense of escape is a crime of violence within the meaning of... § 4131.2(a)”), vacated and remanded, 543 U.S. 1111, 125 S.Ct. 1056, 160 L.Ed.2d 1045 (2005) (remanding in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)); United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002) (failure to report back to halfway 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. Luster, 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. Dickerson, 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.
The majority of these circuits liken an escape to a “
|
1,037,309
| 11,781,059
|
2006-04-03
|
United States Court of Appeals for the Ninth Circuit
|
United States v. Piccolo
|
United States v. Piccolo, 441 F.3d 1084 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involve[] conduct that presents a serious potential risk of physical injury to another,
|
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.
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.
IV
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 “
|
190,611
| 11,781,059
|
2003-08-26
|
United States Court of Appeals for the Seventh Circuit
|
United States v. Hamilton
|
United States v. Hamilton, 75 F. App'x 519 (2003)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another,
|
The career offender provision increases the criminal history category and offense level (and thus the imprisonment range) of defendants who commit certain offenses after having been convicted of two felony controlled substance offenses or “crimes of violence,” U.S.S.G. § 4Bl.l(a), (b), which include any offense that “
|
9,146,470
| 11,781,059
|
2003-04-25
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Jackson
|
United States v. Jackson, 63 F. App'x 839 (2003)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_3
|
by its nature, presents a serious potential risk of physical injury and thus constitutes a crime of violence under § 4B1.2.
|
In United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999), we specifically adopted the reasoning of the Tenth Circuit, which held that the crime of escape “
|
51,234
| 11,781,059
|
2005-12-06
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McGhee
|
United States v. McGhee, 161 F. App'x 441 (2005)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
has as an element the use, attempted use, or threatened use of physical force against the person of another....
|
However, defendant contends, as he did in the district court, that one of the predicate offenses, a 1999 conviction in the Michigan circuit court for “Fleeing and Eluding in the 4th Degree,” did not constitute a “crime of violence,” which the Guidelines define as a crime punishable by imprisonment for a term exceeding one year that “has as an element the use, attempted use, or threatened use of physical force against the person of another....
|
51,234
| 11,781,059
|
2005-12-06
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McGhee
|
United States v. McGhee, 161 F. App'x 441 (2005)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
serious potential risk of physical injury,
|
If the court were not convinced, however, that the statutory formulation of the offense encompassed conduct that posed a serious potential of physical injury, it could examine the indictment for the specific conduct charged.
United States v. Herrera, 375 F.3d 399, 403 (6th Cir.2004) (citation omitted), cert. denied, 543 U.S. 1073, 125 S.Ct. 926, 160 L.Ed.2d 810 (2005). Furthermore, this court has held that, because the Michigan fleeing-and-eluding statute increases the “
|
939,931
| 11,781,059
|
2006-02-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Foreman
|
United States v. Foreman, 436 F.3d 638 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_8
|
by its nature, presented a serious potential risk of physical injury to another.
|
” U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(a)(4)(A).
The term “crime of violence” means 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 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.
§ 4B1.2(a). The commentary to section 4B1.2(a) notes that the definition of “crime of violence” includes any offense in which
(A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. In this case, the arguments revolve around how to interpret whether an offense “
|
939,931
| 11,781,059
|
2006-02-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Foreman
|
United States v. Foreman, 436 F.3d 638 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_2
|
[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. Consequently, violence could erupt at any time.
|
A driver of a motor vehicle who is given by hand, voice, emergency light, or siren a visual or audible signal by a police or conservation officer, acting in the lawful performance of his or her duty, directing the driver to bring his or her motor vehicle to a stop shall not willfully fail to obey that direction by increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude the police or conservation officer. This subsection does not apply unless the police or conservation officer giving the signal is in uniform and the officer’s vehicle is identified as an official police or department of natural resources vehicle.
(2) Except as provided in subsection (3), (4), or (5), an individual who violates subsection (1) is guilty of fourth-degree fleeing and eluding, a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.
M.C.L § 750.479a.
This Court has had two occasions to determine whether offenses similar to the one in this case are in fact “crimes of violence.” In United States v. Harris, 165 F.3d 1062 (6th Cir.1999), this Court held that the Tennessee crime of escape is inherently a “crime of violence. We reasoned that “[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.
|
939,931
| 11,781,059
|
2006-02-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Foreman
|
United States v. Foreman, 436 F.3d 638 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
serious potential risk of physical injury.
|
”). In our examination of both fleeing in a low speed area and causing an accident, we placed heavy emphasis on the word “potential” in the standard “
|
939,931
| 11,781,059
|
2006-02-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Foreman
|
United States v. Foreman, 436 F.3d 638 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
serious potential risk of physical injury.
|
Id. Therefore, his sentence was held to have been appropriately enhanced by the district court while leaving the question of whether fourth degree fleeing and eluding was a “crime of violence” unresolved. Id.
We are now faced, in this case, with resolving that question. However, for a prior crime to be one “of violence” it must have “
|
62,095
| 11,781,059
|
2006-01-30
|
United States District Court for the Middle District of Alabama
|
United States v. Tignor
|
United States v. Tignor, 414 F. Supp. 2d 1070 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
as an element the use, attempted use, or threatened use of physical force against the person of another.
|
Hayes, 717 So.2d at 33 (emphasis in original). The Defendant here was convicted of conduct, whatever that was, toward his victim, which was done with the intent to place his victim in a reasonable fear of death or serious bodily harm. This court concludes that, regardless of the actual mental effect on the victim, conduct intended to cause another to fear death or serious bodily harm must include the threatened use of physical force. Therefore the first prong of U.S.S.G. § 4B1.2 is satisfied, and Aggravated Stalking under Alabama law should be classified as a crime of violence for sentencing purposes.
Because the first prong of U.S.S.G. § 4B1.2 is satisfied, there is no need to analyze Aggravated Stalking under the second prong.
2. Felony DUI as a crime of violence
In 2004, Defendant was convicted of DUI for the fourth time. Under Alabama law, DUI is a misdemeanor offense until a fourth or subsequent conviction, at which point it becomes a Class C felony punishable by imprisonment of not less than one year and one day. Ala.Code § 32-5A-191 (1999). Upon his fourth conviction for DUI in 2004, Defendant was sentenced to four years in State prison.
The Government does not contend that Felony DUI falls within the first prong of § 4B1.2(a), that is, Felony DUI in Alabama does not have “
|
62,095
| 11,781,059
|
2006-01-30
|
United States District Court for the Middle District of Alabama
|
United States v. Tignor
|
United States v. Tignor, 414 F. Supp. 2d 1070 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involves conduct that presents a serious potential risk of physical injury to another.
|
U.S.S.G. § 4B1.2(a)(l). Felony DUI is also not one of the four crimes of violence specifically enumerated in § 4B1.2(a)(2): burglary, arson, extortion, or the use of explosives. What is left is the so called, “otherwise clause. The Government argues that Felony DUI is a crime of violence because it satisfies the second prong of U:S.S.G. § 4B1.2 in that it “
|
62,095
| 11,781,059
|
2006-01-30
|
United States District Court for the Middle District of Alabama
|
United States v. Tignor
|
United States v. Tignor, 414 F. Supp. 2d 1070 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_8
|
otherwise involve(s) conduct that presents a serious potential risk of physical injury to another.
|
In arriving at its holding the court first determined that to interpret U.S.S.G. § 4B1.2(a)(2) it is proper to use the interpretive canons of noscitur a sociis (a word is “known by its associates”) and ejusdem generis (“of the same kind or class”). These specific crimes are followed by the more general “otherwise” clause that includes offenses that “
|
62,095
| 11,781,059
|
2006-01-30
|
United States District Court for the Middle District of Alabama
|
United States v. Tignor
|
United States v. Tignor, 414 F. Supp. 2d 1070 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
or otherwise involves conduct that presents a serious potential risk of physical injury to another,
|
Here, § 4B1.2(a)(2) clearly says “
|
62,095
| 11,781,059
|
2006-01-30
|
United States District Court for the Middle District of Alabama
|
United States v. Tignor
|
United States v. Tignor, 414 F. Supp. 2d 1070 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
conduct that presents a serious potential risk of physical injury to another.
|
To interpret such cases as being similar to the listed offenses only because of the “significant risk of violent confrontation between the criminal and the victim or the law enforcement officer,” is, again, to en-graft a restrictive interpretation onto the language which requires only “
|
62,095
| 11,781,059
|
2006-01-30
|
United States District Court for the Middle District of Alabama
|
United States v. Tignor
|
United States v. Tignor, 414 F. Supp. 2d 1070 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
serious potential risk of physical injury to another
|
It is the present ability to drive or move the car that creates a “
|
62,095
| 11,781,059
|
2006-01-30
|
United States District Court for the Middle District of Alabama
|
United States v. Tignor
|
United States v. Tignor, 414 F. Supp. 2d 1070 (2006)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
conduct that, by its nature, presents a serious potential risk of physical injury to another.
|
The Eighth Circuit held otherwise in an unpublished table opinion, United States v. Bassham, 162 F.3d 1165, 1998 WL 378105 (8th Cir.1998), which affirmed the district court’s holding that Defendant’s earlier convictions for attempted burglary and stalking were crimes of violence under the sentencing guidelines. If the court did so, it would conclude that Aggravated Stalking clearly involves "
|
3,904,370
| 11,781,059
|
2009-04-08
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Clay
|
United States v. Clay, 320 F. App'x 384 (2009)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_10
|
it does not appear that the government intentionally elicited the reference to defendant Harris’ prior arrest; the government’s line of questioning was reasonable; the district court gave an immediate and clear limiting instruction; the isolated allusion to the prior arrest was not part of a pattern indicative of bad faith; and the officer’s stray remark constituted only a minuscule part of the evidence against Mr. Harris.
|
In United States v. Harris, 165 F.3d 1062 (6th Cir.1999), this court concluded that the district court did not abuse its discretion in denying a motion for a mistrial where: “
|
3,723,022
| 11,781,059
|
2004-03-16
|
United States Court of Appeals for the District of Columbia Circuit
|
United States v. Thomas
|
United States v. Thomas, 360 U.S. App. D.C. 333 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
as an element the use, attempted use, or threatened use of physical force against the person of another.
|
Hill, 131 F.3d at 1062 (quoting Mathis, 963 F.2d at 408). 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, 110 S.Ct. at 2159; United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States v. Pierce, 278 F.3d 282, 287 (4th Cir.2002). That is, the offenses defined by those statutes do not have “
|
3,723,022
| 11,781,059
|
2004-03-16
|
United States Court of Appeals for the District of Columbia Circuit
|
United States v. Thomas
|
United States v. Thomas, 360 U.S. App. D.C. 333 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involves conduct that presents a serious potential risk of physical injury to another.
|
U.S.S.G. § 4B1.2(a)(l) (emphasis added). Thus, the only remaining question is whether escape falls within the “otherwise” clause of § 4B1.2(a)(2): a crime that “
|
3,723,022
| 11,781,059
|
2004-03-16
|
United States Court of Appeals for the District of Columbia Circuit
|
United States v. Thomas
|
United States v. Thomas, 360 U.S. App. D.C. 333 (2004)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
a serious potential risk of physical injury to another,
|
”) (emphasis added). Many concededly violent offenses can be hypothesized to take place in a manner that eliminates risk of injury: attempted murder, for example, becomes riskless if we assume that the sniper’s gun has no bullets. 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 “
|
3,866,552
| 11,781,059
|
2007-04-13
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Mathias
|
United States v. Mathias, 482 F.3d 743 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another,
|
Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Judge SHEDD joined.
OPINION
WILKINSON, Circuit Judge:
This case presents the question of whether escape qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”) when the escape did not involve force or violence. In connection with the armed robbery of National Cash Advance, a payday lending service, Linwood Mathias was indicted as a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (2000 & Supp. 2004). He pled guilty. During sentencing, the district court held that Mathias’ three prior convictions — two for burglary and one for felony escape — were “violent felon[ies]” under the ACCA. The court thus designated Mathias an armed career criminal and sentenced him to the statutory minimum: fifteen years imprisonment.
Mathias appeals this sentence. He contends that he should not have been classified as an armed career criminal because the circumstances of his case involved nothing more than a walkaway from a work release program and because his escape conviction was under a Virginia law titled “Escape without force or violence.” Because every escape “
|
3,866,552
| 11,781,059
|
2007-04-13
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Mathias
|
United States v. Mathias, 482 F.3d 743 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
has as an element the use, attempted use, or threatened use of physical force against the person of another,
|
On November 10, 2004, he was indicted as a felon-in-possession and of aiding and abetting the same conduct in violation of 18 U.S.C. §§ 922(g)(1), 924, and 2. Mathias pled guilty to the felon-in-possession and aiding and abetting charges on July 12, 2005.
The Presentence Investigation Report catalogued Mathias’ extensive criminal history. Most pertinently, the PSR identified three prior “violent felony” convictions: two for burglary and one for felony escape. With respect to the felony escape conviction, the PSR noted that Defendant Mathias had walked away from a work release program in violation of Virginia Code § 18.2-479(B). Mathias objected to the violent felony classification of his prior Virginia escape conviction and argued that the conviction was a nonviolent one under Virginia law. The district court disagreed. The court held that Mathias’ escape conviction was a violent felony for purposes of the ACCA regardless of its classification under state law. The court then adopted without modification the PSR, designated Mathias an armed career criminal, and imposed the mandatory minimum sentence of fifteen years imprisonment required by the ACCA.
Mathias now appeals.
II.
The Armed Career Criminal Act imposes heightened sentences on individuals who by repeated conduct have demonstrated an unwillingness to abide by basic social norms as expressed in state and federal criminal codes. Under the statute, any person who violates the felon-in-possession statute, 18 U.S.C. § 922(g), and has three previous “violent felony” convictions must be designated an armed career criminal. 18 U.S.C. § 924(e)(1). This designation carries a mandatory sentence of not less than fifteen years. The ACCA, 18 U.S.C. § 924(e)(2)(B), defines the term “violent felony” as any crime punishable by imprisonment for more than one year that (1) “
|
3,866,552
| 11,781,059
|
2007-04-13
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Mathias
|
United States v. Mathias, 482 F.3d 743 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
the use, attempted use, or threatened use of physical force
|
He urges us to “loo[k] beyond the definition of the charging document and statute” and parse the underlying factual basis of his conviction.
This argument ignores settled law: in this circuit, as in others, the question of whether an escape is a “violent felony” is a categorical one. See, e.g., United States v. Wardrick, 350 F.3d 446, 454 (4th Cir.2003); United States v. Hairston, 71 F.3d 115, 117 (4th Cir.1995); see also Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under the categorical approach, we consider the nature of the offense as defined by statute, not the conduct and circumstances underlying a specific conviction. Wardrick, 350 F.3d at 454; Hairston, 71 F.3d at 117; see also Taylor, 495 U.S. at 602, 110 S.Ct. 2143.
The question, therefore, is whether escape as codified in Virginia Code § 18.2-479(B) is a “violent felony.” Because escape under this provision does not itself involve “
|
3,866,552
| 11,781,059
|
2007-04-13
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Mathias
|
United States v. Mathias, 482 F.3d 743 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involves conduct that presents a serious potential risk of physical injury to another.
|
Because escape under this provision does not itself involve “the use, attempted use, or threatened use of physical force” as required by 18 U.S.C. § 924(e)(2)(B)(i), the issue is whether Virginia Code § 18.2-479(B) “
|
3,866,552
| 11,781,059
|
2007-04-13
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Mathias
|
United States v. Mathias, 482 F.3d 743 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
inherently presents the serious potential risk of physical injury to another,
|
See 18 U.S.C. § 924(e)(l)(B)(ii).
This court decided as much in United States v. Hairston, 71 F.3d 115 (4th Cir.1995), when we held that felony escape from custody in North Carolina, see N.C. Gen.Stat. § 148 — 45(b)(1) (1987), constitutes a crime of violence under the ACCA. In that case, defendant jumped over a fence in a minimum security prison. He argued that felony escape from custody in North Carolina did not present a serious potential risk of physical injury because, in North Carolina, most felony escapes were undertaken by stealth. Hairston, 71 F.3d at 118. We explained that any escape, even an escape by stealth, “
|
3,866,552
| 11,781,059
|
2007-04-13
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Mathias
|
United States v. Mathias, 482 F.3d 743 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
serious potential risk of physical injury
|
We explained that any escape, even an escape by stealth, “inherently presents the serious potential risk of physical injury to another,” and concluded that an escape offense, however effected, is a “violent felony” under the categorical approach of 18 U.S.C. § 924(e)(l)(B)(ii). Id.; see also Wardrick, 350 F.3d at 455.
The same result obtains here. Defendant Mathias unlawfully and feloniously broke the bonds of custody when he walked away from the work, release program. In this, he violated Virginia Code § 18.2-479(B), and committed a “violent felony” under the categorical approach, this court’s decision in Hairston, and the second prong of 18 U.S.C. § 924(e)(1)(B).
Our conclusion finds support in the decisions of our sister circuits. See, e.g., United States v. Jackson, 301 F.3d 59, 63 (2d Cir.2002) (holding that a “walkaway” escape is a violent felony under 18 U.S.C. § 924(e)(2)(B)(ii)); United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir.2002) (same); United States v. Springfield, 196 F.3d 1180, 1185 (10th Cir.1999) (same); United States v. Franklin, 302 F.3d 722, 724-25 (7th Cir.2002) (holding that escape is a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(ii) because it presents a “
|
3,866,552
| 11,781,059
|
2007-04-13
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Mathias
|
United States v. Mathias, 482 F.3d 743 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
a serious potential risk of physical injury to another.
|
To the contrary, we examine only whether the nature of the offense presents “
|
3,866,552
| 11,781,059
|
2007-04-13
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Mathias
|
United States v. Mathias, 482 F.3d 743 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_9
|
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.
|
Even a walkaway escape is “
|
3,866,552
| 11,781,059
|
2007-04-13
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Mathias
|
United States v. Mathias, 482 F.3d 743 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another,
|
Since every escape, however executed, “
|
3,866,552
| 11,781,059
|
2007-04-13
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Mathias
|
United States v. Mathias, 482 F.3d 743 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
as an element the use, attempted use, or threatened use of physical force against the person of another,
|
Since every escape, however executed, “involves conduct that presents a serious potential risk of physical injury to another,” see 18 U.S.C. § 924(e)(l)(B)(ii) (emphasis added), “[i]t is irrelevant... whether defendant was convicted under a state statute that defines escape as a nonviolent offense,” Springfield, 196 F.3d at 1185.
Second, the fact that “violence” is not an element of Virginia Code § 18.2-479(B) is hardly dispositive. And while Mathias is correct that the first clause of § 924(e)(2)(B) defines as violent felonies those which have “
|
3,866,552
| 11,781,059
|
2007-04-13
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Mathias
|
United States v. Mathias, 482 F.3d 743 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise in-volv[e] conduct that presents a serious potential risk of physical injury to another.
|
And while Mathias is correct that the first clause of § 924(e)(2)(B) defines as violent felonies those which have “as an element the use, attempted use, or threatened use of physical force against the person of another,” he altogether ignores the second clause of § 924(e)(2)(B). Rather, as we have noted above, the appropriate inquiry is risk: under § 924(e)(2)(B)(ii), violent felonies include those which “
|
3,866,552
| 11,781,059
|
2007-04-13
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Mathias
|
United States v. Mathias, 482 F.3d 743 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another,
|
Discover Bank v. Vaden, 396 F.3d 366, 369 (4th Cir.2005) (quoting United States v. Ryan-Webster, 353 F.3d 353, 366 (4th Cir.2003)); see also Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (same).
III.
For the foregoing reasons, we conclude that Mathias’ felony escape conviction under Virginia Code § 18.2-479(B) is a “violent felony” as defined by the ACCA. Mathias’ sentence is affirmed.
AFFIRMED.
1
. Codefendant Cooper pled guilty to possession of a firearm by a convicted felon and aiding and abetting the same conduct. He was sentenced to 120 months’ imprisonment. Cooper appealed. This court affirmed, finding Cooper’s sentence to be reasonable. United States v. Cooper, 211 Fed.Appx. 193, 194 (4th Cir.2006). Codefendant Deberry also pled guilty to possession of a firearm by a convicted felon and aiding and abetting; he was sentenced to 120 months’ imprisonment. On appeal, this court affirmed Deberry's conviction and sentence. United States v. Deberry, 173 Fed.Appx. 306, 307 (4th Cir.2006). In addition, the vast majority of our sister circuits (and this court) have concluded that, because escape “
|
5,743,174
| 11,781,059
|
2007-04-11
|
United States Court of Appeals for the Eleventh Circuit
|
United States v. Orisnord
|
United States v. Orisnord, 483 F.3d 1169 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_4
|
In and out and that’s it.
|
Bernard said that they would be “
|
3,706,290
| 11,781,059
|
2007-08-31
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Lancaster
|
United States v. Lancaster, 501 F.3d 673 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_12
|
any person confined in a county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction of a criminal offense constituting a felony [to] escape or attempt to escape therefrom,
|
” Ky.Rev.Stat. § 520.030 (2006). Lancaster contends that because Kentucky’s statutes distinguish between escapes involving the use of force (first degree) and escapes not involving force (second degree), his conviction for second-degree escape should not qualify as a violent felony under § 924(e). We disagree. In United States v. Harris, 165 F.3d 1062, 1067-68 (6th Cir.1999), we held that a conviction for violating former Tenn.Code Ann. § 39-5-706, which made it a felony for “
|
3,706,290
| 11,781,059
|
2007-08-31
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Lancaster
|
United States v. Lancaster, 501 F.3d 673 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
involves conduct that presents a serious potential risk of physical injury to another,
|
Also, in United States v. Esteppe, 483 F.3d 447, 451 (6th Cir.2007), we held that a Kentucky state “conviction for escape similarly constitutes a crime of violence under this court’s decision in [Harris 3” for purposes of the “career offender” enhancement provision of U.S.S.G. § 4B1.1. However, the Esteppe opinion does not specify whether the defendant’s Kentucky escape conviction was for first- or second-degree escape. Concluding that an attempted burglary “
|
3,706,290
| 11,781,059
|
2007-08-31
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Lancaster
|
United States v. Lancaster, 501 F.3d 673 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
serious potential risk of physical injury to another
|
Id. (quoting United States v. Thomas, 333 F.3d 280, 282 (D.C.Cir.2003)).
The dichotomy between “jailbreaks” and “walk away escapes” may be problematic with regard to minimum security jails or prisons possessing no walls or fences. Many such non-“jailbreak” escapes pose an equal, if not greater, “
|
3,706,290
| 11,781,059
|
2007-08-31
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Lancaster
|
United States v. Lancaster, 501 F.3d 673 (2007)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
conduct that presents a serious potential risk of physical injury to another.
|
It is therefore consistent with Collier for us to consider the consequences and circumstances of a Kentucky prisoner’s escape from custody; Harris and Houston counsel us that these circumstances involve “
|
3,488,198
| 11,781,059
|
2009-10-26
|
United States Court of Appeals for the Eleventh Circuit
|
United States v. Lee
|
United States v. Lee, 586 F.3d 859 (2009)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involves conduct that presents a serious potential risk of physical injury to another.
|
Because the government’s concession with regard to Lee’s escape conviction is not dispositive, see Roberts v. Galen of Va., Inc., 525 U.S. 249, 253, 119 S.Ct. 685, 687, 142 L.Ed.2d 648 (1999) (per curiam), we must determine as a matter of first impression in this circuit whether a non-violent “walkaway” escape is a violent felony for purposes of the ACCA. We conclude that it is not.
A defendant convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) is ordinarily subject to a statutory mandatory maximum sentence of ten years’ imprisonment. See 18 U.S.C. § 924(a)(2). Where a defendant has three prior “violent felony” convictions, however, he is subject to a statutory mandatory minimum of fifteen years’ imprisonment as an “armed career criminal.” 18 U.S.C. § 924(e)(1); see U.S.S.G. § 4B1.4(a). The prosecution bears the burden of proving that a sentencing enhancement under the ACCA is warranted. United States v. Harrison, 558 F.3d 1280, 1294 n. 24 (11th Cir.2009).
The ACCA defines a “violent felony” as:
any crime punishable by imprisonment for a term exceeding one year... that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Where a crime does not fit within (i) or the first clause of (ii), the court must determine whether the crime comes within (ii)’s residual clause, that is, whether it “
|
3,488,198
| 11,781,059
|
2009-10-26
|
United States Court of Appeals for the Eleventh Circuit
|
United States v. Lee
|
United States v. Lee, 586 F.3d 859 (2009)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
the serious potential risk of injury
|
Harrison, 558 F.3d at 1285. Before Be-gay, this inquiry focused exclusively on the degree of risk posed by violation of the state statute. See id. See id. at 1286 (noting that “
|
3,488,198
| 11,781,059
|
2009-10-26
|
United States Court of Appeals for the Eleventh Circuit
|
United States v. Lee
|
United States v. Lee, 586 F.3d 859 (2009)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
it does not involve conduct that presents a serious potential risk of physical injury to another.
|
Having determined that escape from custody and failure to report are two separate and distinct crimes, the Court held that the offense of “failure to report” does not fall within § 924(e)(2)(B)(ii)’s residual clause because “
|
4,065,123
| 11,781,059
|
2014-05-05
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Washington
|
United States v. Washington, 565 F. App'x 458 (2014)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_10
|
the government intentionally elicited the reference to [Campbell’s] prior arrest.
|
” (R. 616, PgID # 3965). Campbell then requested a mistrial but, short of that, did not want the judge to issue a cautionary instruction out of fear that it would “underscore... this point” for the jury, (id., PgID # 3963). The court denied the motion, stating:
In the large picture of the trial, sometimes things that seem very critical at the moment kind of disappear. And I think that the jury is hearing evidence from Mr. Martin that it’s going to either believe or disbelieve. And in — with re gard to his testimony, I think this small reference, although it is important, I think it loses, diminishes in importance compared to whether the jury believes what he’s saying----Because you have asked for no cautionary instruction, I am not going to give one.
(Id., PgID # 3968-69). First, there was no evidence that “
|
4,065,123
| 11,781,059
|
2014-05-05
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Washington
|
United States v. Washington, 565 F. App'x 458 (2014)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_10
|
only a minuscule part of the evidence against
|
Second, the reference was “isolated,” constituting “
|
3,431,672
| 11,781,059
|
2009-03-18
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Ford
|
United States v. Ford, 560 F.3d 420 (2009)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
(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.
|
OPINION
SUTTON, Circuit Judge.
Jeffrey Ford challenges his sentence for bank robbery, arguing that the district court improperly sentenced him as a career offender under § 4Bl.l(a) of the sentencing guidelines. Because his previous conviction for a “walkaway” escape is not a “crime of violence” under this provision of the guidelines, we reverse and remand for resentencing.
I.
In 2007, Ford pleaded guilty to bank robbery. See 18 U.S.C. § 2113(a). The district court calculated an advisory guidelines range of 151 to 188 months, see U.S.S.G. ch. 5, pt. A, and sentenced Ford to 151 months. His offense level included a 10-point career-offender enhancement based on his present bank-robbery conviction and prior state-law convictions for robbery and second-degree escape. See id. § 4Bl.l(a).
II.
Ford’s appeal presents one issue: Does his prior conviction for escape constitute a “crime of violence”?
Some of this ground is well-plowed. A defendant is a career offender, as pertinent here, if he was at least 18 when he committed the offense, the offense is a felony “crime of violence” and he has been convicted of at least two prior felony “crime[s] of violence.” A “crime of violence” is an offense that warrants at least a year in prison and that “
|
3,431,672
| 11,781,059
|
2009-03-18
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Ford
|
United States v. Ford, 560 F.3d 420 (2009)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
otherwise involves conduct that presents a serious potential risk of physical injury to another.
|
” Id. § 4B 1.2(a).
Acknowledging that his robbery convictions — his present one and his earlier one — amount to crimes of violence, Ford argues that his second-degree-escape conviction does not. That leaves the possibility that the offense “
|
3,431,672
| 11,781,059
|
2009-03-18
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Ford
|
United States v. Ford, 560 F.3d 420 (2009)
|
1999-01-26
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Harris
|
United States v. Harris, 165 F.3d 1062 (1999)
|
11781059_7
|
the use of force or threat of force against another person,
|
129 S.Ct. at 691. A first reading of the case thus might suggest that, in the world of state-law escape offenses, the federal courts have just these two options to work with — leaving custody or failing to report to custody — and as between the two, it is safe to say that Ford’s offense would be a departure from custody and thus would be a crime of violence. But in Chambers itself, the Court said there were “at least two” ways to divide up the offense, id.— perhaps because Illinois law contained another distinct offense (failure to comply with home-confinement conditions), id., or perhaps because the Court appreciated that there may be other ways to characterize escapes as a matter of federal law. In addition to proscribing general departures from custody and general failures to return, Kentucky law separately criminalizes escapes involving “
|
11,548,573
| 11,773,036
|
1999-05-19
|
United States District Court for the Eastern District of Virginia
|
Citizens Concerned About Jet Noise, Inc. v. Dalton
|
Citizens Concerned About Jet Noise, Inc. v. Dalton, 48 F. Supp. 2d 582 (1999)
|
1999-01-13
|
United States Court of Appeals for the Fourth Circuit
|
Hughes River Watershed Conservancy v. Johnson
|
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (1999)
|
11773036_4
|
the mere fact that certain factors in a cost-benefit analysis are generally imprecise or unquantifiable does not render the result inadequate
|
See Methow Valley Citizens Council, 490 U.S. at 352-53, 109 S.Ct. 1835 (holding agency did not have to submit fully developed mitigation plan or receive assurance that mitigation would occur before proceeding with proposed action where mitigation measures were completely within jurisdiction of state and local govern-mente). That said, however, the Navy did not completely ignore the consequences of the transfer of the F/A-18s on the local community.
The FEIS explicitly acknowledges that the transfer will have a significant noise impact on the surrounding community. FEIS at 4.8-1. The FEIS also thoroughly examined the noise impact on sensitive noise receptors such as public schools. FEIS at 4.8' — 4 to 4.8-9. The Navy even used the FEIS to suggest a number of methods that the local community could mitigate the noise impact, and also indicated its plan to work with local community officials to conduct surveys of the noise impacts at local schools. FEIS at 4.8-4.
Second, the Navy argues that the FEIS properly excluded consideration of mitigation costs to private homeowners because such costs were too speculative. The Navy claims the costs were speculative because there was no way of determining how many homeowners would actually undertake mitigation-. It is also uncertain whether all of the homes in question would even require additional sound attenuation. The cases the government relies on to support this argument, though, simply state that NEPA does not require an agency to discuss speculative environmental impacts. See, e.g., Dubois, 102 F.3d at 1286; Environmental Def. Fund, Inc. v. Hoffman, 566 F.2d 1060, 1067 (8th Cir. 1977). At the same time, the Navy’s reading of these cases for the broader proposition that NEPA does not require discussion of speculative mitigation costs resulting from the known noise impact appears to be correct, given the insurmountable difficulty of calculating those costs, Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 290 (4th Cir.1999) (“
|
9,277,444
| 11,773,036
|
2003-07-01
|
United States District Court for the Eastern District of North Carolina
|
Western North Carolina Alliance v. North Carolina Department of Transportation
|
Western North Carolina Alliance v. North Carolina Department of Transportation, 312 F. Supp. 2d 765 (2003)
|
1999-01-13
|
United States Court of Appeals for the Fourth Circuit
|
Hughes River Watershed Conservancy v. Johnson
|
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (1999)
|
11773036_2
|
entirely failed to consider an important aspect of the problem.
|
NEPA provides that cumulative actions that have been proposed must be considered in a single EIS, see 40 C.F.R. § 1508.25(a)(2), and NEPA separately requires that the environmental evaluation of the current action consider the cumulative impacts of reasonably foreseeable future actions. See 40 C.F.R. § 1508.7. To interpret “reasonably foreseeable” in the manner Defendants suggest would eliminate the distinction between these two sections and would undermine NEPA. An agency could circumvent the safeguards of NEPA whenever the allocation of resources for funding and planning of a large project proceeded in stages rather than as a single unit.
Finally, Defendants assert that in any case, the scope of the EA is sufficient because it included consideration of the impacts of the other projects. However, this claim is not supported by the record. On one half of one page the EA lists “other areas TIP projects” and gives a brief factual description of the projects. The EA does not contain any reference to the potential for cumulative environmental impacts from these other projects, even so as to dismiss the possibility, and does not even mention that the combined result of the various projects will be the increase from four to six lanes of over 40 miles of 1-26, and the extension of 1-26 to connect with 1-81. As noted above, the FONSI refers to the other projects in its discussion of whether 1-4400 will restrict consideration of alternatives for other reasonably foreseeable improvements.
The Court finds that in failing to assess, or even acknowledge the potential for, cumulative impacts from 1-4400, 1-4700, and the other proposed developments to the I-26 corridor in the EA and FONSI, Defendants “
|
9,277,444
| 11,773,036
|
2003-07-01
|
United States District Court for the Eastern District of North Carolina
|
Western North Carolina Alliance v. North Carolina Department of Transportation
|
Western North Carolina Alliance v. North Carolina Department of Transportation, 312 F. Supp. 2d 765 (2003)
|
1999-01-13
|
United States Court of Appeals for the Fourth Circuit
|
Hughes River Watershed Conservancy v. Johnson
|
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (1999)
|
11773036_5
|
An agency takes a sufficient ‘hard look’ when it obtains opinions from its own experts, obtains opinions from experts outside the agency, giver careful scientific scrutiny and response to all legitimate concerns that are raised.
|
Appendix to A.R. at 2031.
3. The EA’s “Hard Look”
Finally, the parties disagree as to whether the EA is sufficient in its consideration of the environmental impacts of the 13.6 mile segment of 1-26 in project I-4400. “
|
9,277,444
| 11,773,036
|
2003-07-01
|
United States District Court for the Eastern District of North Carolina
|
Western North Carolina Alliance v. North Carolina Department of Transportation
|
Western North Carolina Alliance v. North Carolina Department of Transportation, 312 F. Supp. 2d 765 (2003)
|
1999-01-13
|
United States Court of Appeals for the Fourth Circuit
|
Hughes River Watershed Conservancy v. Johnson
|
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (1999)
|
11773036_7
|
As long as the adverse environmental effects of a proposed action are sufficiently identified and evaluated, an agency is vested with discretion to determine under NEPA that other values outweigh the environmental costs.
|
North Carolina Alliance, 151 F.Supp.2d at 688. Similarly, in the instant case, the relatively low accident rate of 1-4400 would not have precluded Defendants from proceeding, but the failure to include accurate information or publicly correct the error resulted in the failure to accurately examine the project.
“
|
9,289,563
| 11,773,036
|
2004-01-07
|
United States District Court for the Eastern District of North Carolina
|
Hunt v. North Carolina Department of Transportation
|
Hunt v. North Carolina Department of Transportation, 299 F. Supp. 2d 529 (2004)
|
1999-01-13
|
United States Court of Appeals for the Fourth Circuit
|
Hughes River Watershed Conservancy v. Johnson
|
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (1999)
|
11773036_9
|
a ‘hard look’ at environmental consequences
|
In other words, NEPA guarantees that an agency will take “
|
9,289,563
| 11,773,036
|
2004-01-07
|
United States District Court for the Eastern District of North Carolina
|
Hunt v. North Carolina Department of Transportation
|
Hunt v. North Carolina Department of Transportation, 299 F. Supp. 2d 529 (2004)
|
1999-01-13
|
United States Court of Appeals for the Fourth Circuit
|
Hughes River Watershed Conservancy v. Johnson
|
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (1999)
|
11773036_10
|
to select their own methodology as long as that methodology is reasonable.
|
Mullin v. Skinner, 756 F.Supp. At 921.
Defendants state that the Topsail Island and Bogue Banks projects are not good comparisons, and they therefore did not study these projects. See AR 3187-89. They note that both projects are more than 100 miles away from Sunset Beach and that neither was a bridge-to-bridge replacement, as in the case of Sunset Beach. The bridge to Topsail Island established a new transportation linkage, while the Bogue Banks bridge replaced an existing ferry. They compare this to Ocean Isle which has an existing two-lane swing bridge and Holden Beach, which had a one lane swing bridge. They also note that although Ocean Isle and Holden Beach are both larger than Sunset Beach, neither has substantial commercial development (1-2%). AR 3197. The AR shows that Sunset Beach actually had a greater concentration of commercial development prior to a new bridge being constructed than did Ocean Isle or Holden Beach. However, this may be attributable to the smaller size of Sunset Beach and the need for certain commercial establishments on the island due to limited access to the mainland.
Plaintiffs ask the court to find the defendants’ FEIS inadequate because of the comparison study sites they chose. However, on these facts, this court cannot and will not do so. Although the sites chosen may not be identical in every way to Sunset Beach and although the islands cited by Judge Britt in the earlier decision were not chosen by the agency for study, the choice of comparable sites was not arbitrary and capricious. Agencies are free “
|
9,289,563
| 11,773,036
|
2004-01-07
|
United States District Court for the Eastern District of North Carolina
|
Hunt v. North Carolina Department of Transportation
|
Hunt v. North Carolina Department of Transportation, 299 F. Supp. 2d 529 (2004)
|
1999-01-13
|
United States Court of Appeals for the Fourth Circuit
|
Hughes River Watershed Conservancy v. Johnson
|
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (1999)
|
11773036_6
|
although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.
|
The Court in Overton Park also noted that “although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one.
|
9,493,414
| 11,773,036
|
2001-06-22
|
United States District Court for the Eastern District of Pennsylvania
|
Buckingham Township v. Wykle
|
Buckingham Township v. Wykle, 157 F. Supp. 2d 457 (2001)
|
1999-01-13
|
United States Court of Appeals for the Fourth Circuit
|
Hughes River Watershed Conservancy v. Johnson
|
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (1999)
|
11773036_6
|
court is not empowered to substitute its judgment for that of the agency
|
” Clairton Sportsmen’s Club, 882 F.Supp. at 465. Pertinent information upon which administrative decision-makers may have relied may be considered although not included in the record as filed. See Higgins, 574 F.2d at 792-93.
The ultimate question is whether the Record supports the FHWA’s decision and not whether a different decision would have been better or might have been made with more information. See Overton Park, 401 U.S. at 416, 91 S.Ct. 814 (reviewing “
|
9,493,414
| 11,773,036
|
2001-06-22
|
United States District Court for the Eastern District of Pennsylvania
|
Buckingham Township v. Wykle
|
Buckingham Township v. Wykle, 157 F. Supp. 2d 457 (2001)
|
1999-01-13
|
United States Court of Appeals for the Fourth Circuit
|
Hughes River Watershed Conservancy v. Johnson
|
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (1999)
|
11773036_6
|
court is not empowered to substitute its judgment for that of the [responsible] agency.
|
See 36 C.F.R. § 60.2 (establishing consultation requirement and noting that “[h]aving complied with this procedural requirement the Federal agency may adopt any course of action it believes is appropriate”); Concerned Citizens Alliance, 176 F.3d at 695-96 (noting § 106 is a “stop, look and listen” provision that merely requires an agency to acquire information before acting).
The Record shows that defendants identified historic resources within the Section 700 project area and published those identifications. Defendants then worked with the Pennsylvania Historical and Museum Commission (“PHMC”) and the ACHP to determine which properties would be eligible for the National Register. Defendants continued to cooperate with the PHMC until the PHMC concurred with defendants’ findings regarding the effects of the project on historic resources and both the PHMC and the ACHP signed a Memorandum of Agreement for the project.
Defendants likewise conducted studies required by the NHPA for the Pools Corner project. Defendants secured an archaeological study of the area and completed a search for nearby historic structures. The PHMC concurred with defendants’ determination that the Pools Corner project would have no effect on historic resources.
The steps taken by defendants constitute compliance with the procedural requirements of the NHPA. See 16 U.S.C. § 470f; 36 C.F.R. §§ 60.2, 800.4.
Y. Conclusion
Increased development is an inevitable fact of life in expanding suburban areas. It is not unusual for residents who hoped indefinitely to maintain pristine surroundings forebodingly to bemoan such development and, if aroused, to do so tenaciously. At the same time, government is expected to plan for and accommodate population growth, commercial expansion and transportation needs. As noted, the “
|
143,541
| 11,773,036
|
2001-05-09
|
United States Court of Appeals for the Fourth Circuit
|
Wilds v. South Carolina Department of Transportation
|
Wilds v. South Carolina Department of Transportation, 9 F. App'x 114 (2001)
|
1999-01-13
|
United States Court of Appeals for the Fourth Circuit
|
Hughes River Watershed Conservancy v. Johnson
|
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (1999)
|
11773036_5
|
[A]n agency takes a sufficient ‘hard look’ when it obtains opinions from its own experts, obtains opinions from experts outside the agency, gives careful scientific scrutiny and responds to all legitimate concerns that are raised.
|
” Id. (internal citations omitted). In reviewing the agency’s decision to issue a FONSI rather than perform an EIS, a court must determine whether the agency took a “hard look” at the project’s effects and whether the decision was arbitrary or capricious. “
|
143,541
| 11,773,036
|
2001-05-09
|
United States Court of Appeals for the Fourth Circuit
|
Wilds v. South Carolina Department of Transportation
|
Wilds v. South Carolina Department of Transportation, 9 F. App'x 114 (2001)
|
1999-01-13
|
United States Court of Appeals for the Fourth Circuit
|
Hughes River Watershed Conservancy v. Johnson
|
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (1999)
|
11773036_1
|
Agencies are entitled to rely on the view of their own experts. As long as the adverse environmental effects of a proposed action are sufficiently identified and evaluated, an agency is vested with discretion to determine under NEPA that other values outweigh the environmental costs.
|
“Agencies are entitled to rely on the view of their own experts.
|
9,240,831
| 11,773,036
|
2004-05-06
|
United States District Court for the Western District of Virginia
|
Clinch Coalition v. Damon
|
Clinch Coalition v. Damon, 316 F. Supp. 2d 364 (2004)
|
1999-01-13
|
United States Court of Appeals for the Fourth Circuit
|
Hughes River Watershed Conservancy v. Johnson
|
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (1999)
|
11773036_10
|
Defendants’ Brief’), Docket Item No. 36 (emphasis added).) Therefore, NEPA does not require the Forest Service to use a particular methodology when assessing cumulative impacts. In addition, the Fourth Circuit has stated that “[a]gencies are entitled to select their own methodology as long as that methodology is reasonable.
|
This model utilized a “worst case scenario” where it was assumed that all of the impacts to the area’s streams would take place within the first year of the project. (A.R., 283 at 79.) In addition, the sediment model also assumed that all Forest Plan standards and guidelines and Virginia Best Management Practices for Forestry would be employed. (A.R., 283 at 79.) The Forest Service then determined that for the proposed project not to have a significant impact that the condition of the streams would have to remain within the range of natural variability. (See A.R., 283 at 78-83.) Utilizing the sediment model, the Forest Service determined that the additional sediment that would be added to the streams would not significantly impact those streams because the condition of the streams would remain within the range of natural variability. (A.R., 283 at 80-83.) As a result, the Forest Service considered the past, present and future effects of the proposed project before coming to the conclusion that the proposed project would not significantly impact the environment.
The Forest Service is not required, as implied by the Plaintiffs, to quantify the cumulative impacts. In fact the Council on Environmental Quality has provided guidance on assessing cumulative impacts, and it states:
[i]f cause-and-effect relationships cannot be quantified, or if quantification is not needed to adequately characterize the consequences of each alternative, qualitative evaluation procedures can be used...
(Exhibit E at 41 attached to the Defendants’ Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment and in Opposition to Plaintiffs’ Motion for Summary Judgment, (hereinafter, “Defendants’ Brief’), Docket Item No. 36 (emphasis added).
|
9,201,152
| 11,773,036
|
2004-07-23
|
United States District Court for the District of Maryland
|
Maryland Native Plant Society v. U.S. Army Corps of Engineers
|
Maryland Native Plant Society v. U.S. Army Corps of Engineers, 332 F. Supp. 2d 845 (2004)
|
1999-01-13
|
United States Court of Appeals for the Fourth Circuit
|
Hughes River Watershed Conservancy v. Johnson
|
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (1999)
|
11773036_6
|
is not to substitute its judgment for that of the agency.
|
If the Corps “fully and ably explains its course of inquiry, its analysis, and its reasoning sufficiently” for the court “to discern a rational connection between its decision-making process and its ultimate decision,” then the decision of the Corps stands. That decision need only be rationally based; the court “
|
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