Friday, August 21, 2009

PA Escape (M2) is not a Crime of Violence

In US v. George Hopkins, No. 06-5091 (3d Cir. Aug. 21, 2009), the 3rd Circuit ruled that escape as a second degree misdemeanor in Pennsylvania does not count as a "crime of violence" for purposes of the Career Offender enhancement in the Guidelines, USSG 4B1.1. In so ruling, the Circuit recognized that its prior decision to the contrary in US v. Luster, 305 F.3d 199 (3d Cir. 2002), has been effectively overruled.

Hopkins was convicted of drug trafficking. At sentencing the district court concluded he qualified as a career offender because he had two qualifying predicate offenses under USSG 4B1.1. One of the prior convictions was for escape under Pennsylvania state law. The escape occurred when local police went to Hopkins' home to arrest him for failure to appear for a traffic violation. Hopkins ran out the back and was caught as he tried to jump over a fence.

Hopkins challenged the sentence on appeal, and the Circuit initially affirmed on the basis of its prior decision in Luster, which held that all escape crimes are crimes of violence. Hopkins filed a cert petition, however, and the Supreme Court vacated the judgment and remanded for reconsideration in light of its decision in Chambers v. US, 129 S. Ct. 687 (Jan. 13, 2009). Chambers held that the crime of failure to report to prison, which is defined as escape under Illinois law, does not count as a "violent felony" for purposes of the Armed Career Criminal Act, 18 USC 924(e).

On reconsideration, the 3rd Circuit concluded that Chambers "is in conflict with" Luster, and that the Court would have to "undertake to determine anew" whether the escape counted as a crime of violence. Examining the PA escape statute, the Court determined that as a second degree misdemeanor, escape consists of "unlawfully removing" oneself from official detention, and does not require force, threat or the use of a weapon. The Court then compared escape to the other crimes listed in USSG 4B1.1 as crimes of violence -- burglary, arson, extortion -- and concluded that it does not pose the same degree of risk of physical injury to another. Finding that escape involves conduct "materially less violent and aggressive than the enumerated offenses," the Court held that as a misdemeanor, it does not qualify as a crime of violence. The effect of this holding is to overrule Luster. The effect is also to reject Luster's "powder keg" theory, under which the potential for an offense to explode into violence was enough to qualify it as a crime of violence.

(See also the post below regarding US v. Polk, No. 08-4399 (Aug 12, 2009), in which the 3rd Cir held that possession of a weapon in prison is not a crime of violence, overruling its prior decision in US v. Kenney, 310 F.3d 135 (3d Cir. 2002).)

Practice tips:
This ruling means two things for practitioners:

1) PA escape as a misdemeanor does not count as either a "crime of violence" under USSG 4B1.1, or a "violent felony" under the Armed Career Criminal Act, 18 USC 924(e). The definitions of the two terms are almost identical, and the Supreme Court has made clear that the case law applying to the ACCA applies also to the Career Offender provision.

2) Practitioners should look back over their closed cases to identify any sentences in which the Career Offender or ACCA enhancement was applied based on a prior escape offense. In any such cases, the defendants should be contacted and advised to file petitions under 28 USC 2255 to vacate their sentences. These petitions should be filed by January 12, 2010 -- within one year of Chambers, otherwise they will likely be time-barred.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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