Lead Opinion
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
Benji Stout pleaded guilty to knowingly possessing body armor after having been previously convicted of a crime of violence, in violation of 18 U.S.C. § 931(a)(2). Stout now appeals, contending that the district court erred when it found that his prior state-law conviction for second-degree escape constituted a “crime of violence,” as defined by 18 U.S.C. § 16. For the following reasons, we AFFIRM the decision of the district court.
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 18 U.S.C. § 922(g)(1) and one count of knowingly possessing body armor after having been previously convicted of a crime of violence in violation of 18 U.S.C. § 931(a)(2). At his arraignment, Stout requested a hearing to determine whether his prior state-law conviction for seeonddegree escape constituted a “crime of violence.”
The record below provides limited information with regard to Plaintiffs 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 18 U.S.C. § 16. The district court stressed that Stout had escaped from a secure facility, by scaling a fence. The district court reasoned that Stout’s actions were “purposeful and aggressive” and “created a serious risk of the use of physical force against guards and members of the general public.” After the district court’s ruling, Stout pleaded guilty to one count of knowingly possessing body armor having previously been convicted of a “crime of violence.” The government, through motion, dismissed the other remaining charge, being a convicted felon in posses
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 18 U.S.C. § 16? We review the district court’s legal determination de novo. United States v. Martin,
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.
18 U.S.C. § 16 (2006). Our inquiry is conditionally two-fold. First, we apply the “categorical approach” to discern the nature of a defendant’s prior conviction. Taylor v. United States,
In evaluating the residual clause of § 16(b), we recognize that the United States Sentencing Guidelines and the Armed Career Criminal Acts (“ACCA”) each contain similar residual clauses relating to crimes of violence. See U.S. Sentencing Guidelines Manual § 4B1.2 (2012) (providing that the term “crime of violence” includes a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another”); 18 U.S.C. § 924(e)(2)(B) (stating that “violent felony” includes a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another”). Although similar, the language of § 16(b) is narrower than these provisions to the extent that it explicitly requires that a crime carry a substantial risk “of physical force” during “the course of committing the offense.” 18 U.S.C. § 16(b); see also United States v. Amos,
III.
Pursuant to the approach outlined in Taylor and Shepard, we must first classify the offense in question. We have recognized, “[ojften 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,
As detailed above, Stout’s prior state-law conviction was for escape.
To categorize section 520.030 of the Kentucky Revised Statutes, we need not look far. In Ford, we acknowledged that “a conviction for second-degree escape [under this provision] covers everything from a felon who breaks out of a maximum-security prison to one who fails to report at a halfway house.”
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 eatego
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, 18 U.S.C. § 16(a) does not apply. Accordingly, the question becomes whether escaping from a secured facility “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.” 18 U.S.C. § 16(b).
As the Supreme Court has stated, “[§ 16(b) ] covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense.” Leocal,
Applying these guidelines, escape from a secured facility is a crime of violence within the meaning of 18 U.S.C. § 16(b). Escape from a secured facility is an active crime, requiring intentional conduct on the part of the offender. As we implied in Ford, such escapes involve individuals overcoming physical barriers, as well as security, and are the type of “traditional escapes ... apt to lead to serious risks of physical injury.”
Furthermore, escape from a secure facility is similar to burglary, the classic crime of violence pursuant to § 16(b). See, e.g., United States v. Proch,
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,
Finally, in concluding that escape from a secured facility is a crime of violence under 18 U.S.C. § 16(b), we are not attempting to revive an expansive “powder-keg” approach. Prior to Chambers, various holdings of this and other circuits “turned on the reasoning that every escape scenario is a powder keg because [a] defendant who escapes from jail is likely to possess a variety of supercharged emotions and violence could erupt at any time.” United States v. Anglin,
V.
For these reasons, we AFFIRM the decision of the district court.
Notes
. Prior to the Supreme Court’s decision in Chambers, the Sixth Circuit had taken the view that all escape offenses — from failure to report at one end of the spectrum, to a breakout at the other — constituted crimes of violence. See, e.g., United States v. Bailey,
. This is not to say that there are no other possible divisions, outside the four categories Ford listed, of section 520.030 of the Kentucky Revised Statutes. As detailed above, however, Stout's conduct in scaling a jail wall clearly falls within the category of leaving the custody of a secured setting.
. Like the majority, I posit that the ACCA’s residual clause and section 4B1.2 of the Sentencing Guidelines should be read in pari materia. Because I have no need to draw distinctions between the two, I will refer only to the ACCA’s provisions.
Dissenting Opinion
dissenting.
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,
I begin at the place where all federal laws find their beginning: Congress. Our legislature selected § 16 as the basis for determining which violent crimes would serve as a predicate offense making the possession of body armor illegal. See H.R. Conf. Rep. 107-685 § 11009 (2002), 2002 U.S.C.C.A.N. 1120. By cross-referencing § 16, Congress sought to have the statute operate in tandem with existing drug-trafficking weapons possession statutes. See 18 U.S.C. § 924(c)(3) (2000). In doing so, it impliedly opted not to adopt another definition of “violent felony” that was already on the books — the ACCA’s. See 18 U.S.C. § 924(e)(2)(B) (2000). We must be mindful of the distinction that Congress drew when it eschewed one for the other. To conflate the two statutes, as the majority does today, is to disregard the careful contemplation the legislature undertook in writing the statute the way it did. Cf. Cannon v. Univ. of Chicago,
Looking to the statutes themselves may be helpful in illustrating the difference between the two. Section 16 provides:
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.
18 U.S.C. § 16 (2006) (emphasis added). In contrast, the violent felony provision of the ACCA provides, in pertinent part:
(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*711 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....
Id. § 924(e)(2) (emphasis added). I doubt anyone could validly posit that § 16(a) and § 924(e)(2)(B)(i) apply to section 520.030 of the Kentucky Revised Statutes, so I will proceed by discussing only § 16(b) and § 924(e)(2)(B)(ii).
I derive two points of significance in comparing the residual clauses of the two statutes. First, § 16(b) is temporally constrained, whereas § 924(e)(2)(B)(ii) is not: the substantial risk of physical force must arise “in the course of committing the offense.” In contrast, § 924(e)(2)(B)(ii) merely requires conduct “that presents a serious potential risk of physical injury to another.” Second, § 16(b) is contextually constrained in two ways: (a) the use of physical force must arise from the “course of’ committing the offense, i.e., in order to effectuate the offense; and (b) the person who may potentially use physical force must be the offender. Section 924(e)(2)(B)(ii) has neither facial constraint.
These are not novel distinctions. This court has previously recognized that § 16(b) is constrained in a manner that the ACCA is not. See United States v. Amos,
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 § 16, my colleagues rely on dicta from the Supreme Court’s decision in Leocal v. Ashcroft,
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,
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,
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 eonclusory 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.
III.
To illustrate why it is important to draw distinctions between § 16 and the ACCA, I now address Ford itself, particularly the passage that has led to my quandary today. In Ford, we opined that:
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.
This is where the distinction between § 16 and the ACCA’s “violent felony” provision creates a deviation of disposition. It may very well be true, as the Ford court’s reliance on the Seventh Circuit’s decision in United States v. Templeton,
Not so under § 16. As I explain above, that provision constrains us both temporally and contextually. For Stout, this means we should only consider the risk that arises from his escape standing alone, not the risk arising from events that may occur subsequent to his escape, including his apprehension. These limitations would not exist under the ACCA, which is why Ford’s dicta would be tenable in that context.
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,
What my colleagues do not reveal, however, is the data that can permissibly be considered under the ACCA but not under § 16(b), in light of the latter’s statutory constraints — in other words, the core of what made Ford possible. Because § 16(b) requires that the risk arise from the “course of committing the offense,” we cannot look to facts like the “11% to 15% chance of violent resistance to recapture,” or the commission of “violent crimes such as murder or robbery against civilians while on the lam.” See id. at 381-82 (emphasis added). Once the crime is complete, a defendant is no longer “in the course of committing the offense,” and our inquiry of risk must end. Under Kentucky law, once an inmate goes beyond a secured perimeter, “his departure from the ‘detention facility’ [is] complete[ ].” Cope v. Commonwealth,
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,
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,
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
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 § 16(b) analysis is not “the possibility that harm will result from a person’s conduct, but ... the risk that the use of physical force against another might be required in committing a crime.” Leocal,
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,
After classifying Stout’s offense, I would faithfully adhere to Leocal’s central premise: for an offense to be a “crime of violence” under § 16(b), it must naturally fall within a “category of violent, active crimes.”
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,
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 § 16(b), and would reverse and remand with instruction to dismiss the indictment.
V.
If the law proves unpersuasive, perhaps common sense should prevail. See Discount Tobacco City & Lottery, Inc. v. United States,
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,
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,
For these reasons, I regretfully cannot join my colleagues in the majority and must respectfully dissent.
. I do not mean to suggest that a defendant, under the ACCA, would be responsible for the serious potential risk of physical injury to another posed by another, e.g., a police officer wounding an innocent bystander in an attempt to apprehend an escaped inmate who used improvised tools to effectuate his escape. I am merely comparing the face of the two statutes.
. As I explain below, the "powder keg" rationale is unconvincing and foreclosed by circuit precedent.
. It appears, however, that we have not shied away from such a multitudinous approach in other contexts. See, e.g., United States v. Kratt,
. I would find the degree of force used here akin to the degree of force that a walkaway might use to open a gate, jump over a ditch, or hop across a small stream.