United States v. Simmons, No. 11-10459 (9th Cir. 2015)
Annotate this CaseDefendant was convicted of drug and firearm offenses and sentenced to 168 months’ imprisonment. Defendant appealed, arguing that the district court erred in sentencing him as a career offender because it erroneously concluded that his prior conviction for second degree escape was a “crime of violence” as that term is defined by the Sentencing Guidelines. A panel of the Ninth Circuit vacated the sentence, holding (1) Defendant’s prior conviction for second degree escape in violation of Haw. Rev. Stat. 710-1021 is not a categorical crime of violence under the career offender guideline; (2) assuming, without deciding, that section 710-1021 is divisible into three separate crimes, application of the modified categorical approach demonstrates that Defendant was convicted of the “escape from custody” version of the crime; and (3) the crime of escape from custody is not a crime of violence under the career offender guideline. Remanded for resentencing.
Court Description: Criminal Law. Vacating a sentence for drug and firearm offenses, the panel held that the defendant’s prior conviction for second degree escape in violation of Hawaii Revised Statutes § 710- 1021 was not a “crime of violence” under the career offender guideline U.S.S.G. § 4B1.1(a). The panel held that because § 710-1021 includes both active and passive forms of escape, the district court properly concluded that a conviction under that statute is not a categorical crime of violence. The panel applied Descamps v. United States, 133 S. Ct. 2276 (2013), which was decided after sentencing in this case, to address whether the modified categorical approach can be applied to determine whether the defendant’s conviction qualifies as a crime of violence. The panel assumed, without deciding, that § 710-1021 is, as agreed by the parties, divisible into three separate crimes. The panel also accepted, as the parties agreed, that application of the modified categorical approach demonstrates that the defendant was convicted of the “escape from custody” version of the crime. The panel rejected the government’s argument that escape from custody may be further subdivided into three additional, distinct offenses. Comparing the elements of the crime of conviction with the elements of the generic crime, the panel UNITED STATES V. SIMMONS 3 held that the crime of escape from custody is not a crime of violence under § 4B1.1(a) because it does not have as an element the use, attempted use, or threatened use of force; it is not burglary, arson, or extortion; it does not involve the use of explosives; it does not present a serious potential risk of physical injury to another; and the risk involved in the offense is not roughly similar, in kind or in degree of risk posed, to any of the enumerated offenses set forth in U.S.S.G. § 4B1.2(a).
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