UNITED STATES of America, Plaintiff-Appellee, v. Benji Antonio STOUT, Defendant-Appellant.
No. 10-6163.
United States Court of Appeals, Sixth Circuit.
Argued: July 26, 2012. Decided and Filed: Feb. 5, 2013.
706 F.3d 704
SARGUS, D.J., delivered the opinion of the court, in which COLE, J., joined. DONALD, J. (pp. 710-16), delivered a separate dissenting opinion.
OPINION
EDMUND A. SARGUS, District Judge.
Benji Stout pleaded guilty to knowingly possessing body armor after having been previously convicted of a crime of violence, in violation of
I.
On August 4, 2009, officers from the Winchester, Kentucky Police Department stopped Stout‘s vehicle. The officers discovered four pieces of body armor in the vehicle, which Stout admittedly possessed. The body armor had been manufactured by American Body Armor in Jacksonville, Florida and sold in interstate commerce prior to Stout‘s possession.
A grand jury returned an indictment charging Stout with one count of being a felon-in-possession of a firearm in violation of
The record below provides limited information with regard to Plaintiff‘s prior state-law conviction. In November 2004, Stout pleaded guilty to second-degree escape in violation of section 520.030 of the Kentucky Revised Statutes. The underlying complaint alleged that Stout committed the crime while incarcerated at the Detention Center in Lincoln County, Kentucky. According to the reporting officer, Stout “scaled the recreation area wall, cutting a hole in the fence at [the] top and escaping custody of the [j]ail.” During the evidentiary hearing, Stout, through his attorney, admitted to scaling the wall and escaping through a hole in the fence, but denied cutting the hole in the fence. The government proffered no evidence indicating that Stout was the individual who cut the hole in the fence that he used for his escape. On this basis, the district court “assume[d] that [Stout] merely used the hole to make his escape.”
The district court held that Stout‘s prior state-law conviction for escape constituted a “crime of violence” for purposes of
Stout‘s plea agreement allowed him to appeal the district court‘s ruling on the “crime of violence” issue. Accordingly, he filed a timely notice of appeal of his conviction.
II.
Stout‘s appeal presents a single issue: Does his prior state-law conviction for escape constitute a “crime of violence” within the meaning of
A “crime of violence” is defined as:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
In evaluating the residual clause of
III.
Pursuant to the approach outlined in Taylor and Shepard, we must first classify the offense in question. We have recognized, “[o]ften the key analytical move in the case happens at the first step: deciding whether the state-law definition of the offense involves just one category or two or more categories of crimes.” United States v. Mosley, 575 F.3d 603, 606 (6th Cir. 2009). “The ‘categorical approach’ requires courts to choose the right category,’ as the Supreme Court recently clarified, and sometimes that choice requires the federal courts to draw distinctions that the state law on its face does not draw.” Id. (quoting Chambers v. United States, 555 U.S. 122, 126 (2009)). For example, when the same statutory section criminalizes two types of behavior that significantly differ, “a sentencing court must treat the two as different crimes.” Chambers, 555 U.S. at 126. At the same time, however, we must be “careful that the lines we draw are meaningful ones” and must not circumvent the categorical approach that Taylor requires. United States v. Ford, 560 F.3d 420, 424 (6th Cir. 2009).
As detailed above, Stout‘s prior state-law conviction was for escape.1 Under Kentucky law, “escape in the first degree” is a Class C felony that arises when a person “escapes from custody or a detention facility by the use of force or threat of force against another person.”
To categorize
In this case, the proper classification of Stout‘s offense is an escape by leaving custody in a secured setting. Once again, within the relevant Shepard material, Stout admits that he scaled the recreational area wall of his detention facility and then escaped through a pre-existing hole in the fence. Such conduct falls squarely into the category of “leaving custody in a secured setting” that we recognized in Ford. Id. at 424. Specifically, in Ford, we discussed the differing nature of such conduct in comparison to walkaway escapes:
There is a difference between individuals who overcome physical barriers to freedom and those who walk off the grounds—those in other words who leave a facility without removing a physical restraint, without breaking a lock on a door, without climbing over a prison wall or security fence or without otherwise breaking through any other form of security designed to keep them put.
Id. (emphasis added).
At least within the circumstances of this case, we will not further divide the catego-
IV.
Having classified Stout‘s offense, we must now determine whether it constitutes a “crime of violence.” The use or threatened use of physical force is not an element of an escape from a secured facility and, therefore,
As the Supreme Court has stated, “[
Applying these guidelines, escape from a secured facility is a crime of violence within the meaning of
Furthermore, escape from a secure facility is similar to burglary, the classic crime of violence pursuant to
Tellingly, in light of statistical data, the Seventh Circuit has found “that escapes (other than walkaways) generate a sufficient risk of injury to count as crimes of violence.” United States v. Templeton, 543 F.3d 378, 382 (7th Cir. 2008) (citing a study reflecting “that 8% of escapees commit violence against guards in the process of getting away“). We also recognize that other circuits have concluded that escape from a secured facility is a crime of violence or violent felony within similar contexts. See, e.g., Proch, 637 F.3d at 1269 (holding that escape from jail was a violent felony under the ACCA); Hughes, 602 F.3d at 676-77 (same); Pratt, 568 F.3d at 22 (“[E]scape from secure custody, by crawling under a fence at a county jail, was a ‘violent felony’ within the meaning of the ACCA“); see also Furqueron, 605 F.3d at 616 (holding that escape from a penal institution was a crime of violence within the meaning of the sentencing guidelines).
Finally, in concluding that escape from a secured facility is a crime of violence under
V.
For these reasons, we AFFIRM the decision of the district court.
Benji Stout is no Edmond Dantes, who famously escaped from prison by cutting open a body bag with an improvised knife and hiding in the bag, to be flung unknowingly into the sea by gravediggers. See Alexander Dumas, The Count of Monte Cristo 172-75 (David Coward ed., Oxford University Press 1990) (1845). Nor is he Andy Dufresne, who slowly chiseled his way to freedom and destroyed a sewer pipe in effectuating his escape. See The Shawshank Redemption (Castle Rock Entertainment 1994). I would have no quarrel with the conclusion that either of their escapes would be a “crime of violence” for our purposes today.
Instead, an unarmed Stout climbed a wall and crawled through a hole in a prison gate that he was not responsible for creating. Because the law and common sense compel me to fundamentally disagree with the majority‘s conclusion that such acts are “crimes of violence,” I must respectfully dissent.
I.
Simply put, I disagree with the proposition that our decision in United States v. Ford, 560 F.3d 420 (6th Cir. 2009), applies here today. The primary basis for my disagreement is this: we are dealing with an entirely different statute.
I begin at the place where all federal laws find their beginning: Congress. Our legislature selected
Looking to the statutes themselves may be helpful in illustrating the difference between the two.
The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
(B) the term “violent felony” means 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....
I derive two points of significance in comparing the residual clauses of the two statutes. First,
These are not novel distinctions. This court has previously recognized that
On the surface, the majority appears to recognize that we are addressing a different statute, but its analysis suggests that it is paying little more than lip service to the nuances revealed by comparing both provisions. To make our otherwise-inapposite decision in Ford binding in a manner that comports with
I do not share my colleagues’ confidence that the law supports such contortion.
In Taylor, the Supreme Court, while analyzing the legislative history of the violent felony provision, made several “useful observations” to fill in the gaps of such history. One of these observations was the fact that an offender‘s entry into a building “often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.” Id. at 588. After careful review of what Congress had contemplated, the court concluded that the legislature believed “all burglaries serious enough to be punishable by imprisonment for more than a year constituted a category of crimes that shared this potential for violence.” Id. It was this careful intertwining of legislative history and judicial reasoning that likely led to the Leocal Court‘s observation that burglary was a “classic example” of an inherently dangerous crime. See Leocal, 543 U.S. at 10. We have the benefit of neither to support the inference of inherence that the majority suggests with respect to escapes.
Still, the lack of legislative history and extensive judicial commentary thereon does not definitively forbid the majority‘s attempt to bridge Ford with Leocal using inherence as a foundational pier. For that, I turn to Ford itself. In that case, we disavowed our past circuit precedent in which we deemed all escape offenses to be crimes of violence. Ford, 560 F.3d at 423 (emphasis added). We surmised that, after Chambers, it was no longer “clear-cut.” Id. The impetus for our subdividing of the Kentucky statute was the concession that not all escapes possessed the inherent potentiality of harm that seems unquestionably latent in all of the categorically sui generis offenses such as burglary. In addition, the majority cannot reason that walkaways were the exception and that inherent harm should be categorically recognized for all other offenses; if that were true, we would not have sanctioned further mincing of the Kentucky escape statute. See id. at 424. Therefore, the bridge between
II.
There is another aspect of the majority‘s opinion that I find conflictive with circuit precedent: its invocation of the “unique intensity of a jailbreak scenario” to justify sustaining the “crime of violence” determination. The powder-keg reasoning, which we have eschewed even in the context of the ACCA, seems to have made a reappearance. My colleagues assert, in a somewhat conclusory manner, that our decision today does not rest upon the buttress of the powder keg. I respectfully beg to differ. Indeed, the majority‘s analysis seems to belie this assertion.
To justify its decision, the majority relies on cases from our sister circuits that explicitly invoke the verboten rationale of the powder keg. See United States v. Hughes, 602 F.3d 669, 677 (5th Cir. 2010) (“It was in this sense that we termed escape a ‘powder keg’ in [United States v.] Ruiz, [180 F.3d 675 (6th Cir. 1999)] and now reaffirm our holding in that case.“); United States v. Pratt, 568 F.3d 11, 22 (1st Cir. 2009) (“Therefore, the ‘powder keg’ rationale still applies to such a crime.“). Notwithstanding my colleagues’ protestations to the contrary, it appears that we are restocking the recently-emptied keg with fresh gunpowder. I, however, would prefer to remain steadfast to our own circuit‘s decision to attribute “little, if any, continuing persuasiveness” to the powder-keg theory. See United States v. Anglin, 601 F.3d 523, 529 (6th Cir. 2010).
III.
To illustrate why it is important to draw distinctions between
There is a difference between individuals who overcome physical barriers to freedom and those who walk off the grounds—those in other words who leave a facility without removing a physical restraint, without breaking a lock on a door, without climbing over a prison wall or security fence or without otherwise breaking through any other form of security designed to keep them put.
560 F.3d at 424 (emphasis added). I note that, since Ford, the Supreme Court held in Johnson v. United States, 559 U.S. 133 (2010), that violence under the ACCA and
This is where the distinction between
Not so under
Moreover, the Ford decision undeniably rested on the broad swath of empirical evidence evaluated in Templeton. Undoubtedly, a small part of the Seventh Circuit‘s reasoning in that case was based on the risk of harm that emanated during the escape. See Templeton, 543 F.3d at 382. That court observed from a 2005 study that “8% of escapees commit violence against guards in the process of getting away.” Id. Indeed, our majority recognizes and relies upon this datum.
What my colleagues do not reveal, however, is the data that can permissibly be considered under the ACCA but not under
The majority, cognizant of this, invokes the lone statistic that we are permitted to consider: that a small percentage of non-walkaway escapees engage in violent conduct as they are in the process of escaping from the facility. See Templeton, 543 F.3d at 382. This statistic, however, does not distinguish between inmates who use physical force against persons in effecting their escape, cf.
IV.
No dissent is complete without some explanation as to how the case should have been decided. I start with classification. The majority hints at the perplexing dilemma that this case presents: either attempt to fit the square peg of Stout‘s offense into one of four previously-identified categories of escape recognized under the Kentucky escape statutes or recognize a new category of offenses that would further dissect Kentucky law. Picking the right label “makes all the difference.” See Ford, 560 F.3d at 424.
If there was ever an occasion to depart from Ford‘s quadripartite categorization of the Kentucky escape statutes, this is it. Adopting a broad, sweeping categorization of Stout‘s offense that declares his crime to be one of “leaving custody in a secured setting,” as the majority does, fails to capture the nuances of his offense that would otherwise suggest that his crime was not a violent one. I do acknowledge, however, that taking cognizance of a new offense category, viz. leaving custody in a compromised secured setting where the unarmed inmate was not the perpetrator of the breach, would put us in danger of endorsing the recognition of so many permutations of a single offense so as to render meaningless Taylor‘s mandate that the categorical approach be applied.4
But I do not think it farfetched to subdivide escapes from secured facilities into sub-classifications determined by an individual‘s culpability in the compromising conduct. In Leocal, the Supreme Court explained that the focal point of the
I would therefore draw a distinction between escapes from secured custody that require some degree of knowledge, intent, or recklessness with respect to the use of physical force and escapes from secured custody that lack such mens rea. Stout‘s offense clearly falls into the latter category. There is a qualitative and categorical difference between Stout‘s scaling of a wall and escape through an already-compromised barrier and a prisoner‘s deliberate use of physical force to cause a breach in his escape. See, e.g., Webster, 2009 WL 50495, at *1 (recalling the events leading to a
After classifying Stout‘s offense, I would faithfully adhere to Leocal‘s central premise: for an offense to be a “crime of violence” under
Mindful of what Johnson said about “violence“—that it must involve “a substantial degree of force“—I cannot conclude that the manner of Stout‘s escape posed a risk, much less a substantial risk, that he would exercise such a degree of force against the person or property of another to effectuate his escape. The only “force” that Stout applied against the property of another was the physical exertion necessary to scale a wall and exit through an already-existing breach of the secured facility. “In no ‘ordinary or natural’ sense can it be said that a person risks having to ‘use‘” a substantial degree of force against the property of another in doing so. See id. at 11.5
Nor could I conclude that Stout‘s escape posed a “substantial risk” of a “substantial
Thus, I discern no substantial risk from Stout‘s offense that a substantial degree of physical force would be used against the person or property of another. I would therefore hold that Stout‘s conviction under the Kentucky escape statute was not a “crime of violence” for purposes of
V.
If the law proves unpersuasive, perhaps common sense should prevail. See Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 557 (6th Cir. 2012) (noting the Supreme Court‘s reliance on common sense in a commercial speech case and seeing fit to do the same). Here are the realities of our decision today. For climbing a wall and exiting through an open hole in a fence as an unarmed inmate-turned-escapee, Benji Stout is now deemed to have committed a crime of violence. We are essentially sustaining Stout‘s conviction on a single line of dicta from a case that dealt with a different statutory scheme. Something is missing here—perhaps it is common sense.
The majority‘s decision to rely on Ford is understandable. But it is also unreasonable. Relying on Ford is tantamount to blind obeisance to a case that simply does not compel it. The concept of dicta is a dangerous thing, and it is Stout who suffers for it. See Alexander v. Baltimore Ins. Co., 8 U.S. (4 Cranch) 370, 379 (1808) (“It is extremely dangerous to take general dicta upon supposed cases not considered in all their bearings, and, at best, inexplicitly stated as establishing important law principles.“).
What troubles me the most, however, is the reality that we are upholding Stout‘s conviction on a single statistic: that 8% of escapees commit violence against guards in the process of getting away. We must be mindful of our longstanding legal maxim that “probability is not a guide which a court, in construing a penal statute, can safely take.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 105 (1820). It appears that we disregard this maxim today.
For these reasons, I regretfully cannot join my colleagues in the majority and must respectfully dissent.