United States v. Covington, 738 F.3d 759

Background

Covington pled guilty in federal court to possession of a firearm in furtherance of drug trafficking (18 U.S.C. § 924(c)) and possession with intent to distribute cocaine base (21 U.S.C. § 841(a)).
U.S. Probation recommended career-offender treatment under U.S.S.G. § 4B1.1 based on two prior felonies, including a Michigan conviction for breaking and escaping prison (Mich. Comp. Laws § 750.193).
At sentencing the district court found the Michigan escape conviction qualified as a "crime of violence" under U.S.S.G. § 4B1.2(a)(2)’s residual clause, treating it analogously to burglary (invoking a "powder keg" or "stealth crime" theory).
The district court applied the career-offender enhancement and imposed consecutive terms; Covington appealed the enhancement determination.
The Sixth Circuit convened a de novo review, applied Descamps’s divisibility framework and the modified categorical approach, and examined whether the elements of Michigan’s "breaking and escaping" present the same serious potential risk of physical injury as the enumerated offenses in § 4B1.2(a)(2).
The Sixth Circuit concluded Michigan’s breaking-and-escape offense does not categorically present comparable risk to the enumerated offenses (burglary, arson, extortion, explosives) and reversed and remanded for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Mich. Comp. Laws § 750.193 is divisible for categorical analysis	Government: statute contains alternative means so modified categorical approach may apply	Covington: even if divisible, his conviction must be tested categorically against § 4B1.2	Held: statute is divisible; charging docs show Covington convicted of "breaking and escaping," so modified categorical approach applies
Whether Covington's § 750.193 conviction is a "crime of violence" under U.S.S.G. § 4B1.2(a)	Government: escape is a "stealth" crime like burglary and poses similar risk of an eruption of violence, qualifying under residual clause	Covington: elements of breaking-and-escaping do not present comparable risk to enumerated offenses; statute covers low-risk conduct (e.g., pushing open an unguarded door)	Held: Not a crime of violence; elements do not present the same "serious potential risk of physical injury" as enumerated offenses
Whether the district court permissibly relied on the "powder keg/stealth crime" theory	Government: analogies to other circuits support treating escapes as similar risk to burglary	Covington: Sixth Circuit precedent disfavors powder-keg theory; analysis must compare statutory elements, not hypothetical confrontation risk	Held: District court erred by relying on powder-keg theory; Sixth Circuit rejects reliance on that theory here
Scope of permissible inquiry under Descamps/Shepard	Government: may look to plea/charging documents to identify statute variant	Covington: only elements may be compared, not underlying factual conduct	Held: Follow Descamps and Shepard: use modified categorical approach only to identify the statutory alternative, then apply elements-based comparison

Key Cases Cited

Descamps v. United States, 570 U.S. 254 (2013) (clarifies divisibility and limits modified categorical approach to identifying the statutory alternative)
Sykes v. United States, 564 U.S. 1 (2011) (residual-clause risk-level comparison; compare risk to closest enumerated offense)
Begay v. United States, 553 U.S. 137 (2008) (residual clause excludes offenses lacking purposeful, violent, aggressive conduct)
Shepard v. United States, 544 U.S. 13 (2005) (authorizes limited review of charging documents, plea colloquy, etc., to identify which statutory alternative convicted)
Taylor v. United States, 495 U.S. 575 (1990) (adopts categorical approach focusing on statutory elements)
United States v. Anglin, 601 F.3d 523 (6th Cir. 2010) (rejects relying on powder-keg discovery risk in residual-clause analysis)
United States v. Denson, 728 F.3d 603 (6th Cir. 2013) (applies Descamps and modified categorical approach)