Chambers v. United States
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Authorship: John Dalton, a student at Stanford Law School
Contents |
[edit] Briefs and Documents
Docket: 06-11206
Issue: Whether a failure to report to prison is the equivalent of escape for purposes of enhanced sentencing under the Armed Career Criminal Act.
Merits briefs
- Brief for Petitioner Deondery Chambers
- Brief for Respondent United States
- Reply Brief for Petitioner Deondery Chambers
Other materials
Oral Argument Transcript
Opinion: REVERSED AND REMANDED in an opinion by Justice Breyer
[edit] Pre-Argument Articles
[edit] Grant write-up
[edit] Argument Preview
On November 10, the Court will consider whether failure to report to prison is a violent felony for the purposes of enhanced sentencing under the Armed Career Criminals Act.
[edit] Background
In 2006, petitioner Deondery Chambers pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). At sentencing, the government argued that petitioner was subject to a fifteen-year mandatory minimum sentence pursuant to § 924(e) of the Armed Career Criminal Act (ACCA), which requires such a sentence when a defendant violates § 922(g) after committing three “violent felon[ies] or [] serious drug offense[s].” One of the three “predicate convictions” on which the government relied to establish petitioner’s eligibility for the enhanced sentence was petitioner’s state conviction for escape. Under Illinois law, the term escape encompasses both breaking free from prison or custody and knowingly failing to report to prison. The government did not dispute that Chambers’ escape was in the latter category. Petitioner argued that his failure-to-report escape was not in fact violent because it did not present the kind of struggle that normally is present in escape from confinement and thus fell outside the purview of § 924(e).
At the sentencing hearing, the district court relied on Seventh Circuit precedent to hold that escape constituted a “violent felony.” The court held that “for reasons of simplicity . . . escape is escape” and declined to differentiate between failure-to-report escape and custodial escape. Accordingly, the court concluded that Chambers was an armed career criminal and sentenced him to 188 months – a sentence at the bottom of the applicable Guidelines range. Had Chambers had not been treated as a career criminal, by contrast, his sentencing range would have been 130 to 162 months, with the statutory maximum for his offense at 120 months.
On appeal, the Seventh Circuit, in an opinion by Judge Posner, framed the question before it as whether “a conviction under Illinois law for escape, was indeed a crime of violence.” “As an original matter,” the court observed, “one might have doubted whether failing to report to prison . . . was a crime that typically or often ‘involves conduct that presents a serious potential risk of physical injury to another.’” This, however, was not a question of first impression, and the court deemed itself bound by an earlier panel decision in United States v. Golden, holding that any escape under Illinois law constituted “a crime of violence [under] the Act.”
The court then reviewed the other circuits’ positions on this question and concluded that the Seventh Circuit position was consistent with its sister circuits, except for the Ninth and D.C. Circuits. The court, however, indicated that “there would be no impropriety in dividing escapes, for purposes of ‘crime of violence’ classification, into jail or prison breaks on the one hand and . . . failures to report . . . on the other,” and that this division would be easy to apply for sentencing judges.
Ultimately, the court decided to “adhere to the precedents for now“ but emphasized that “it is an embarrassment to the law when judges base decisions of consequence on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences.”
[edit] Petition for Certiorari
In his petition for certiorari, Chambers advanced three primary reasons for granting certiorari. First, there is a well-developed circuit split. The circuits are divided ten to two on the issue, with the Ninth and D.C. Circuits holding that failure-to-report escapes are not violent crimes and the other circuits reaching a contrary conclusion.
Second, Chambers argued that because the Supreme Court recently acknowledged in James v. United States that some standard needed to be created for what constitutes a “violent felony,” this case is the proper vehicle for setting that standard. The provision in the ACCA has an enumerated list of felonies that clearly constitute a violent felony (i.e., burglary, arson, extortion, or crimes involving the use of explosives) , but it concludes with a catch-all, encompassing any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” In James, the crime (attempted burglary) was analogous to the enumerated felony of burglary and thus, although the majority recognized the need for a standard, the Court refused to establish such a standard in James because that case was not an appropriate vehicle. Chambers argued that his case differs from James, as his case is “an excellent vehicle to address this substantial gap in the interpretation and application of the ACCA,” because failure-to-report cases are not analogous to any of the enumerated felonies.
Finally, granting certiorari would give the Court an “opportunity to place a principled limit” on the catch-all provision of the ACCA.
The government, in its opposition, provided three primary reasons for denying certiorari. First, the government argued that Chambers’s argument is wrong on the merits. Invoking the Tenth Circuit’s characterization of escape, the government argued that even failure-to-report escape “gives rise to a serious risk of physical injury.” This is true with failure-to-report, the government explained, because there is no way to determine what an individual will do when confronted by police who know he is wanted. The government argued that the individual factual context is irrelevant; instead, the statutory definition is what is important.
Second, most of the circuits agree that escape constitutes a “violent felony” under the ACCA. The Ninth Circuit case on which Chambers relied, according to the government, considered only whether failure-to-report is a crime of violence according to the Sentencing Guidelines. Therefore, even the Ninth Circuit’s position does not conflict with the majority of circuit precedent.
Finally, the government argued that James was a different case because it involved attempted burglary and thus does not require a grant in this case. In addition, the government cited two prior cases presenting the same question in which the Court denied certiorari.
In his reply brief, Chambers argued that the government’s claim that factual context is irrelevant contradicts precedent which requires a court to look at the charging document, not the statutory definition alone. In addition, Chambers noted that even the government recognizes that the Sentencing Guidelines and the ACCA have ”identical” language, so the Ninth Circuit’s decision is relevant. Also, since the initial petition, the Sixth Circuit has held that failure-to-report was not a violent felony in Michigan. Finally, certiorari should be granted so that the Court can do in this case what it was unable to do in James – that is, set a reasoned standard.
[edit] Merits Briefing
In his merits brief, Chambers advances five main reasons why failure-to-report escape should not be considered a violent felony under the ACCA. Chambers begins by focusing on the Court’s decision from last Term in Begay, in which the Court noted that only crimes “similar” to the enumerated crimes would be included in the catch-all. Chambers argues that the enumerated crimes have two characteristics in common: (1) “they involve purposeful, violent and aggressive conduct during the commission of the offense,” and (2) “they are property crimes.” Failure-to-report escape is thus not a violent crime within the meaning of the ACCA, Chambers argues, as it does not have either of these characteristics.
First, the crime of failure-to-report is one of omission, not commission, and therefore cannot be considered “purposeful, violent, and aggressive” as required by the residual statute of the ACCA. Failing to report “is itself without risk” and “involves doing nothing.” Thus, Chambers argues, failure-to-report escape cannot be considered a violent felony under ACCA because “[i]naction is the very antithesis of purposeful, violent and aggressive conduct.” Chambers contrasts his case with Begay, in which the Court held that driving under the influence was strict liability and therefore did not have the required purpose element necessary. Because the crime in Begay was active and yet still insufficient, Chambers argues, the inactive crime of failing to report certainly is not sufficient.
Furthermore, the hypothetical possibility that violence could erupt when the individual is confronted by a police officer is not sufficient for a crime to constitute a crime of violence. Otherwise, every crime would carry this possibility, because violence could potentially erupt from that arrest. Instead, the focus is on whether “the conduct encompassed by the elements of the offense” is “inherently dangerous.” Because there is no risk that an individual will be confronted during the actual commission of the crime, the commission of the crime is not “inherently dangerous.” The fact that the offender was allowed to move about freely in the community shows that the concern for violence must not have been that high.
Second, Chambers argues that the catch-all provision should be limited to property crimes, which all of the enumerated felonies target. When read alone, the language in the residual clause encompasses every crime involving purposeful, violent and aggressive conduct . Therefore, unless the “residual subclause” is limited to property crimes, it would render the first clause with enumerated felonies “superfluous,” and principles of statutory interpretation require that every clause of a statute be given meaning. This construction is also confirmed by the purpose of the Act and the legislative history. Failure-to-report escape is not a property crime.
Third, Chambers argues that if the Court adopts the proposed reading of the ACCA, the lower courts will have a standard that can be consistently applied. Whether property damage is done, or intended, is a much simpler approach than requiring lower courts to study statistical data on the likelihood that violence would occur as a result of a particular crime. Furthermore, to allow sentencing to turn on such a vagary would violate constitutional requirements of clarity in criminal laws.
Fourth, even if the Court considered the numerical frequency of the harm that results from a particular offense, failure-to-report escape is still not a violent felony, as the government has failed to produce any data showing the frequency with which violence occurs in failure-to-report escape cases.
In conclusion, Chambers briefly contends that at the very least, the rule of lenity should apply because Congress did not clearly intend to include failure-to-report escape cases in the ACCA provision.
In its brief on the merits, the government provides five reasons why failure-to-report escape is indeed a violent felony within the meaning of the ACCA. First, failure-to-report creates an analogous risk to that of burglary. With burglary, the Court held that the risk of violence occurs when someone investigates. Similarly, in failure-to-report cases, there is a “risk of violent confrontation between the escapee and law enforcement officers seeking to recapture him.” In addition, to be liable for failure-to-report, the individual must be a recidivist with some criminal record, and the person who finds him will most likely be an armed police officer who knows of the individual’s propensity for violence. The Court’s decision in James made clear that “hard statistics” are not necessary.
Second, failure-to-report escape satisfies the Begay standard that it be “purposeful, violent, and aggressive.” Purpose exists because the crime requires the individual to knowingly fail to report. In addition, failure-to-report escape is violent because of the risk of “closely related, violent confrontation” discussed above. Finally, the criminal is making a “conscious decision to disobey a legal obligation to report,” so it cannot be said that he is guilty of pure inaction.
Third, the government argues that Chambers’s claim that potential violence must occur “during the commission of the offense” directly contradicts the text of the ACCA because some enumerated felonies are classified in this category based on the harm after the offense (e.g. placing bombs on a boat may be the crime, but no harm occurs until they explode). In addition, such an interpretation limiting the ACCA would violate its purpose, which was to identify crimes in which the criminal is “willing to engage in conduct ‘where the risk of harm to others is consciously known.’” Because failure-to-report is a continuing offense, the potential violence occurs during the recapture (and thus is part of the offense).
Fourth, the government contends that Chambers’s proposed limitation of the catch-all clause to “property crimes” is incorrect because extortion and use of explosives do not necessarily involve property. Instead, extortion simply involves an effort to obtain “anything of value,” and an explosive can be used in an open area where property is not damaged. The legislative history does not support this construction; nor does the canon against surplusage, as the initial clause can still have meaning because it provides a list that requires no “qualitative analysis.” In addition, the government casts doubt on the claim by petitioner that the vagary raises constitutional issues, noting that in James the Court rejected just such an argument.
Finally, the government argues that the rule of lenity is completely inapplicable in this case as there is no ambiguity in the statutory text.
In his reply brief on the merits, Chambers reiterated the primary arguments from his opening brief. In addition, he reemphasized that because the Court in Begay “exclusive[ly] focus[ed] on the conduct encompassed by the elements of the enumerated offenses, there is no basis in the language or rationale of Begay, or any other decision of this Court, for looking beyond the conduct encompassed by the elements of an unenumerated offense to determine whether that offense involves violent and aggressive conduct.” Chambers argued that both the Court’s precedents and the statutory text of the ACCA call for this approach. As a result, because the elements for failure to report do not encompass any “dangerous circumstances,” and in fact involve merely inaction, Chambers argued that failure-to-report escape is not a violent felony under the ACCA. Chambers argued that, by contrast, the government was arguing for an abandonment of this categorical approach by looking outside of the elements of the crime, which would lead to massive confusion among lower courts trying to apply the standard of the Court and constitutional concerns.
Argument is scheduled for November 10, 2008.
[edit] Oral Argument Recap
Robert Hochman argued the case for petitioners and began by stating that failure to report is not a violent felony because it does not involve a serious potential risk of injury nor does it involve violent and aggressive conduct. Almost immediately Chief Justice Roberts asked whether petitioner agreed that a breakout would be a violent felony. Mr. Hochman conceded that point and used that question as an opportunity to set forth the distinction between breakouts, which are clearly violent felonies, and simple failure-to-report cases. Justice Kennedy interjected with a hypothetical asking whether it would be relevant if ninety percent of escapes were breakouts and only ten percent were failure to report. Justice Kennedy focused the question with a follow-on question of whether the Court is supposed to look generally at a crime to see if it involves violence or on a case-by-case basis. Mr. Hochman struggled to find an answer to this question, but eventually argued that the Court’s focus should be on the narrow subset of escape crimes at issue in this case. Chief Justice Roberts then clarified the hypothetical and asked whether it would be different if the escape statute was broad and all-encompassing. Mr. Hochman’s response was that it would be a difficult question. Chief Justice Roberts then pointed out that in Illinois the language was broad and did not break out failure to report. Mr. Hochman’s responded by focusing on the charging document, which only charged failure-to-report escape.
Justice Ginsburg then interjected briefly, asking what the sentence for the failure-to-report was. Mr. Hochman made clear that the only result was an extension of probation for Chambers – no jail time.
Justice Scalia joined the fray by stating that he had a real problem with Mr. Hochman’s formulation that allows larger crimes to be narrowed into smaller subcategories when determining whether they are violent. Justice Scalia argued it could eviscerate any benefits of the categorical approach because it would result in a case-by-case analysis that was meant to be avoided by such an approach. Mr. Hochman responded that the decision in Shepard already answered this question because it allows the Court to look to the charging document and the elements considered by the jury. Justice Scalia pushed back on this point arguing that it was not necessary that it be an element.
Justice Alito argued that the categorical approach did not work and proposed a case-by-case basis looking at the individual’s conduct to see if he or she was violent. Mr. Hochman countered with two responses. First, he argued that such a system would encounter major Sixth Amendment Apprendi concerns because of the difficulty of determining what facts the jury found to be true. Second, he argued that since this was a statute and has been interpreted in the categorical fashion for twenty years, the Court should not stray from that interpretation because Congress could have amended the statute.
Changing gears, Justice Scalia began to ask how burglary can be considered violent or aggressive, since the elements of burglary require an individual breaking in at night in an attempt to be “sneaky.” Justice Souter immediately countered this argument by pointing out the danger of burglary if the home owner is home and Mr. Hochman latched onto this argument suggesting that burglary had a high potential for violence. Justice Scalia countered by suggesting that is exactly what the government is arguing, that there is a potential for violence. Mr. Hochman responded that nothing in the record showed that the potential was higher in failure-to-report cases than in any other case where someone is being arrested for a crime. He concluded by emphasizing that there must be, in his view, both violent and aggressive conduct and serious potential risk of injury, and therefore since failure to report is not violent and aggressive, it cannot qualify under 924(e), no matter the risk of injury.
Matthew Roberts, arguing for the United States, began by analogizing failure-to-report escape to burglary but was quickly interrupted by Justice Ginsburg, who asked whether failure-to-report escape was different from any other crime because all crimes have the potential for violence when the individual is arrested. Mr. Roberts responded by arguing that avoidance of custody is an element of escape, but this is not an element of typical crimes.
Justice Souter was unconvinced by this line of reasoning and focused instead on the passive nature of failure-to-report escape. Mr. Roberts argued that since legal obligation to respond existed, the conduct was not passive, as it opened up the possibility of violent confrontation with police. Justice Kennedy interjected that the same duty could be said about failure to respond to a traffic ticket.
Chief Justice Roberts changed the focus and asked whether it made a difference if the crime was failure to report to a probation officer. Mr. Roberts responded by saying it is “common sense” that the police will pursue those who do not report to prison. Justice Scalia turned those words around on Mr. Roberts and asked if common sense also dictated that an individual who is so trusted that he is required to only come into prison on the weekend would be violent when confronted by police. Mr. Roberts countered by suggesting that it is not the task of the Court to look at the individual offender, but the elements of the offense in the ordinary case. Justice Kennedy then briefly asked how much discretion a U.S. attorney would have over whether to prosecute such an offense.
Chief Justice Roberts then interjected, changing the subject and noting petitioner’s claim that there are no examples where failure to report resulted in violence, and asked whether that was true. Mr. Roberts then pointed to two examples where innocent bystanders were injured. Justice Stevens asked whether the size of the risk was relevant at all. Mr. Roberts asserted that the government does not believe statistics of any kind should be used as only “potential risk” need be shown. Justice Kennedy responded by pointing out that risk can be more easily assessed with empirical data, so why should it be ignored. In addition, Justice Souter attacked Mr. Roberts’ arguments on “potential risk” pointing out that the statute requires “serious potential” risk. Mr. Roberts responded by pointing to James and suggesting that decision stands for the principle that to determine risk the Court should compare the risk with the enumerated felonies.
Justice Breyer then requested that Mr. Roberts respond to the statistics released by the Sentencing Guidelines Committee, which show that in 160 cases of failure to report and failure to return cases, zero force was involved, zero injuries resulted, and in only five cases the offender had a dangerous weapon. Mr. Roberts emphasized the dangerous weapon in those five cases and that the sample size was too small and then said that even under those statistics if one of the individuals had used his gun that would result in a 2.4 percent chance of harm. Justice Scalia forcefully disagreed on this point emphasizing that no one used the gun in those cases though and so the statistic of 2.4 percent is “imagination.”
Justice Stevens shifted gears and asked whether the danger was greater based on these statistics than the danger of drunk driving in Begay. Mr. Roberts immediately agreed that the risk was not as high but emphasized the strict liability nature of the offense in Begay.
Mr. Roberts concluded that if under the categorical approach the Court says failure-to-report escape is not a violent felony then active escape would also not be counted as a violent felony under many state statutes.
On rebuttal, Mr. Hochman emphasized that most states do distinguish between failure-to-report and escape from custody cases, and so the concerns of Mr. Roberts are unfounded. He also reemphasized that the government looks back over thirty years and is unable to produce much, if any, evidence of injury resulting from failure-to-report cases.
[edit] Opinion Analysis
Justice Breyer delivered the unanimous opinion of the Court holding that “failure to report” escape is not a violent felony under the ACCA.
The Court begins by pointing out that under the ACCA the focus is not on whether the specific crime at issue was violent, but instead, looking more broadly to determine whether that type of crime generally involves violent conduct. The Court emphasized, citing Shepard v. United States, that even within one category of crime under a statute, such as burglary, the type of burglary (whether it is breaking into a building or a car) can determine whether the crime is considered violent. The Court then described how the Illinois statute at issue in this case involved the same sort of categorization.
Under the Illinois statute, many different forms of escape are described but only in “a single numbered statutory section.” The issue, therefore, according to the Court, is whether failure to report may be deemed a separate offense for purposes of the ACCA. The Court concluded that failure to report is a separate crime from typical escape from custody, and that “[t]he behavior . . . underl[ying] a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody.” In making this determination that failure to report is separate from escape, the Court relied not only on the fact that it is broken out separately, but also on the Illinois code’s placement of these crimes in two different felony classes, which is determined by seriousness of the crime. The Court then noted that all of the different varieties of failure to report crimes were effectively the same and grouped them together, so that the Illinois statute only contained two types of crimes, failure to report and escape from custody.
After categorizing the types of crimes in the Illinois statute, the Court then turned to the more pointed question of whether failure to report was a violent felony under the ACCA. The Court held that while failure to report was clearly a crime punishable by more than one year, failure to report did not “satisf[y]” any of the other statutory requirements of the violent felony definition. The Court noted the obvious points that the elements of the crime didn’t involve physical force and that it was not one of the enumerated crimes. The Court went on to say “[a]nd, more critically . . . it does not ‘involve conduct that presents a serious potential risk of physical injury to another.’”
The Court emphasized that failure to report is a crime of inaction and is “a far cry from the ‘purposeful, violent, and aggressive conduct’ potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion.” The Court then considered and rejected the Government’s argument that failure to report showed a “strong aversion to penal custody.” The Court noted that such aversion is irrelevant as the true question is whether such an individual is more likely than others to have a violent encounter with the police. The Court then relies on the Sentencing Commission’s report to dispel the claim that violence is more likely in failure-to-report cases. The Court pointed out that the report details 160 failure-to-report cases over a two-year period, none of which involved violence either when the crime was committed or when the individuals were captured. Therefore, the report proves that indeed no serious potential risk of injury is present in these cases. The Court distinguished the three cases cited by the Government (showing that violence had occurred in failure-to-report cases) as showing that in only those three documented cases was violence present and so the chances of violence occurring were very small.
Justice Alito wrote a concurring opinion that was joined by Justice Thomas. In Justice Alito’s view, neither the approach taken by the majority in this case nor that of Begay can be squared with the statutory text, but the result was dictated by stare decisis. He wrote separately to ask Congress to redraft the ACCA to fix “the mire” created under the current draft of the residual clause. The Court’s adoption in Taylor of a categorical, rather than case-by-case, approach has led to innumerable problems and inconsistent application for twenty years. Thus, Congress should create a detailed and enumerated list of every crime that falls within the scope of the ACCA.
[edit] Links and further information
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