Lead Opinion
Aftеr his conviction as a felon in possession of a firearm, Alfred Tucker received an enhanced sentence under the Armed Career Criminal Act (“ACCA”), which applies to those felons guilty of possession of a firearm who have three prior convictions for a violent felony. See 18 U.S.C. § 924(e). After a panel of this court affirmed his conviction and sentence, we granted rehearing en banc to address whether Tucker’s prior conviction under a Nebraska escape statute qualifies as a violent felony for purposes of thе ACCA. Because the elements of the portion of the Nebraska statute under which Tucker was convicted do not, in the ordinary case, encompass conduct that presents a serious potential risk of physical injury to another, a conviction under that portion of the statute cannot serve as a predicate conviction for ACCA purposes. We thus vacate Tucker’s sentence and remand for resen-tencing.
I.
Our prior panel opinion in this case describes the circumstances of Tucker’s arrest and conviction. United States v. Tucker,
The ACCA applies to defendants who are convicted of being a felon in possession of a firearm after three prior convictions for a violent felony. 18 U.S.C. § 924(e). A violent felony is a felony 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.” § 924(e)(2)(B). To determine whether a past conviction qualifies as a violent felony, we apply the “categorical approach,” under which we “look only to the fact of conviction and the statutory definition of the prior offense.” Taylor v. United States,
The district court found that Tucker’s prior conviction under a Nebraska escape statute qualified as one of the three neсessary predicate violent felony convictions under the “otherwise” clause of § 924(e)(2)(B)(ii) because it “involvefd] conduct that presents a serious potential risk of physical injury to another.” On appeal, Tucker argued that his escape was a mere “walk-away escape” that could not be considered to present a serious potential risk of physical injury to another, similar to an offense of failure to report back to custody that the Supreme Court held was not a violent felony for ACCA purposеs in Chambers v. United States,
We granted Tucker’s petition for rehearing en banc to consider whether that precedent should be overruled. We also ordered supplemental briefing on two issues: (1) whether the court may subdivide a statute that is textually indivisible for purposes of applying the modified categorical approach, and (2) if so, how the generic offense of “walk-away escape” should be defined. These questions were designed to help us decide whether to adopt the approach of our panel in United States v. Parks,
II.
The statute under which Tucker was convicted provides as follows:
(4) Except as provided in subsection (5) of this section, escape is a Class IV felony.
(5) Escape is a Class III felony where:
(a) The detainee was under arrest for or detained on a felony charge or following conviction for the commission of an offense; or
(b) The actor employs force, threat, deadly weapon, or other dangerous instrumentality to effect the escape; or
(c) A public servant concerned in detention of persons convicted of crime purposely facilitates or permits an escape from a detention facility or from transportation thereto.
Neb.Rev.Stat. § 28-912.
The statute is divisible because it provides as alternative grounds for conviction “unlawful ] remov[al] ... from official detention” and “fail[ure] to return to official detention following temporary leave granted for a specific рurpose or limited period.” § 28-912(1). The modified categorical approach can be used to identify which of these alternatives was the basis for a conviction under § 28-912. Of course, following Chambers, it is clear that a conviction for failure to return to official detention is not a violent felony. Here, however, there is no dispute that Tucker was convicted on the basis of unlawfully removing himself from official detention, rather than a failure to return.
The statute is further divisible because the definition of “official detention” provides severаl alternative grounds for conviction, in that the detention from which a defendant removed himself could have been “arrest, detention in or transportation to any facility for custody of persons under charge or conviction of crime or contempt or for persons alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes,” excepting “supervision of probation or parole or constraint incidental to release оn bail.” Id.
The Government concedes that the portion of the statute under which Tucker was convicted applies to removing oneself from any type of detention facility, from the most heavily secured and guarded penitentiaries to relatively non-secure community-based housing facilities (often referred to as halfway houses). We ordered the parties to submit supplemental briefing as to whether a court could extend the modified categorical approach and split this basis for conviction into nonstatutory categories such as “escape from a secured and guarded facility” and “escape from an unsecured facility,” an apprоach that had been taken in some of our sister circuits and adopted by our panel in Parks.
After we ordered briefing, however, the Supreme Court rejected such an approach in Descamps. Descamps arose under the portion of § 924(e)(2)(B)(ii) that specifically enumerates certain crimes as violent felonies.
III.
Because the portion of the Nebraska statute under which Tucker was convicted is textually indivisible as between escape from secure custody and escape from nonsecure custody, we now examine whether “the conduct encompassed
Here, common sense suggests that removing oneself from a secured and guarded facility presents a significant likelihood of “confrontation leading to violence,” akin to the risk associated with burglary. See id. On the other hand, common sense suggests that such risks are much less if one is “removing oneself’ from a halfway house, where one is unconstrained by locked doors or physical barriers, often under no surveillance, and where no armed guards are tasked with preventing such departures. In thosе circumstances, the conduct is more analogous to a failure to report back to custody after authorized leave, in which “an individual ... would seem unlikely, not likely, to call attention to his whereabouts by simultaneously engaging in additional violent and unlawful conduct.” See Chambers,
Neither party has offered any statistics to suggest how often convictions for unlawfully removing oneself from official detention under the Nebraska escape statute are based on each of these modes or how often each mode results in an injury. In the absence of other data, we agree with the parties that the analogous statistics for federal escape offenses cited in Chambers are instructive. For the 177 reported federal escape cases based on leaving non-secure custody, an injury was reported in only three cases, Chambers,
Accordingly, a conviction under this portion of the Nebraska escape statute does not qualify as a violent felony under the
rv.
For the reasons discussed above, we vacate Tucker’s sentence and remand for resentencing in accordance with this opinion.
Notes
. The definition of "crime of violence” for the sentencing guidelines career offender provision, see U.S.S.G. § 4B1.2(a)(2), contains an "otherwise” clause similar to that in § 924(e)(2)(B)(ii). Although "separatе analysis” is necessary to ensure that there is no reason to distinguish between these two definitions, United States v. Ross,
. The statute also is divisible in other respects. For example, a conviction for a Class III felony under subsection 5(b) for the use of "force, threat, deadly weapon, or other dangerous instrumentality to effect the escape” is a category that would merit consideration as a violent felony. However, such other potential categories are not relevant to the instant case because Tucker was convicted of a Class IV felony.
. Although the statute provides multiple reasons for “detention,” the parties focused only on detention for conviction of a crime and detention after being found delinquent. For purposes of determining whether Tucker’s es
. We make no holding as to the other divisible portions of the Nebraska escape statute, including those based on alternative definitions of “official detention” as, for example, detention pursuant to an arrest.
Concurrence Opinion
concurring in the judgment.
I decline to adopt the court’s broad reading of Descamps v. United States, — U.S.-,
The Armed Career Criminal Act defines classes of prior convictions that qualify as “violent felonies” when sentencing a person convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). One section of the statute, 18 U.S.C. § 924(e)(2)(B)(ii), has two distinct subparts:
(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year ... that—
(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.
(Emphasis added.)
The Supreme Court developed its interpretation of § 924(e)(2)(B)(ii) in cases involving the first subpart, the enumerated crimes clause. In the seminal case of Taylor v. United States,
Like Taylor and Shepard, Descamps concerned proper application of the enumerated crimes subpart to a prior state court burglary conviction. The Massachusetts statutes at issue in Shepard were overbroad (“nongeneric”) because they prohibited unlawful entry into a “ship, vessel or vehicle,” as well as a building.
Descamps did not concern the residual “otherwise involves” subpart of 18 U.S.C. § 924(e)(2)(B)(ii). Nevertheless, our court confidently asserts, “we can discern no reason not to apply it here.” Though there are good reasons to draw this inference, I am not so sure it is correct.
The Supreme Cоurt first applied its categorical approach to the residual clause in James v. United States,
As a circuit court, we must of course follow the Supreme Court’s emphatic adherence to thе generic or categorical approach in applying both subparts of 18 U.S.C. § 924(e)(2)(B)(ii). But that is not the end of the inquiry. We must also carefully examine how the Court employed this approach in the cases most closely resembling the one now before us. To avoid construing the ACCA’s harsh sentencing enhancement too broadly, the Court’s first step has been “to choose the right category” of offenses and then decide whether the crime, as so categorized, satisfies the ACCA’s definition of violent felony “in the ordinary case.” Chambers,
This case is different. The Nebraska Legislature — not focusing on future federal sentencing issues — included all escapes from “official dеtention” in a single statutory provision. Neb.Rev.Stat. § 28-912. That provision encompasses escapes from a maximum security prison by eluding its
There is no clear signal the Court would decide that this textual difference does not affеct whether the modified categorical approach applies in this type of residual clause case. No doubt intentionally, I infer, the majority in Descamps carefully limited its discussion to the enumerated crimes clause and explicitly noted it was not presented with the question whether defendant’s prior California burglary conviction could be a “violent felony” under the residual clause.
In my view, this doctrinal uncertainty does not make the decision in this case difficult because Tucker must be resen-tenced whatever analytical approach governs. If the Descamps divisibility analysis applies to residual clause offenses, I agree with the court that Tucker must prevail. Likewise, he must prevail if the modified categorical approach as we applied it in United States v. Parks is the governing standard because Tucker’s prior conviction under Neb.Rev.Stat. § 28-912 is easily categоrized as an escape from an unsecure facility.
There are more radical approaches the Supreme Court might take in applying the residual clause, but they would also require the same disposition of this appeal. Justice Scalia might persuade a majority of his colleagues that the residual clause is
For these reasons, I concur in the court’s decision to vacate Tucker’s sentence and remand for resentencing.