United States v. Mills, No. 07-0308 (2d Cir. 2009)
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07-0308-cr United States v. Mills 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 5 6 (Argued: May 30, 2008 Final briefs submitted February 4, 2009 Decided: 7 Docket No. 07-0308-cr 8 ------------------------------------- 9 UNITED STATES OF AMERICA, 10 Appellee, 11 - v - 12 GARY MILLS, also known as G KNOCKER, 13 Defendant-Appellant. 14 June 26, 2009) ------------------------------------- 15 16 Before: KEARSE, SACK, and LIVINGSTON, Circuit Judges. Appeal from a judgment of conviction of the United 17 States District Court for the District of Connecticut (Peter C. 18 Dorsey, Judge), sentencing defendant-appellant Gary Mills 19 principally to a term of imprisonment of 188 months under the 20 Armed Career Criminal Act, 18 U.S.C. § 924(e). 21 the district court's determination that his prior conviction for 22 escape under Connecticut law is a violent felony for statutory 23 sentencing-enhancement purposes. 24 recent decision in Chambers v. United States, 129 S. Ct. 687 25 (2009), we conclude that Mills's conviction for escape based on 26 his failure to abide by the terms of his "transitional Mills challenges Based on the Supreme Court's 1 supervision" was not a violent felony within the meaning of the 2 Armed Career Criminal Act. 3 pursuant to the Act, was therefore improper. 4 Mills's sentencing, conducted Remanded. 5 6 7 8 9 10 11 12 KAREN L. PECK, Assistant United States Attorney (Kevin J. O'Connor, United States Attorney, District of Connecticut; John H. Durham, Deputy United States Attorney; William J. Nardini, Assistant United States Attorney, of counsel), New Haven, CT, for Appellee. 13 14 RICHARD S. CRAMER, Hartford, CT, for Appellant. 15 16 PER CURIAM: Defendant-Appellant Gary Mills appeals from a judgment 17 of conviction of the United States District Court for the 18 District of Connecticut (Peter C. Dorsey, Judge) by which he was 19 sentenced principally to a term of imprisonment of 188 months 20 under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). 21 The ACCA applies to persons who violate 18 U.S.C. § 922(g) and 22 who have "three previous convictions . . . for a violent felony 23 or a serious drug offense, or both." 24 Mills met the first requirement inasmuch as he pled guilty to 25 being a felon in possession of a firearm in violation of 18 26 U.S.C. § 922(g)(1). 27 three prior convictions for violent felonies or serious drug 28 offenses, and that he therefore should not have been sentenced 29 under the ACCA. 30 conviction for first-degree escape in violation of Conn. Gen. 18 U.S.C. § 924(e)(1). He argues, however, that he did not have Specifically, Mills asserts that his prior 2 1 Stat. § 53a-169 should not have been treated as a violent felony 2 within the meaning of the statute. 3 under the Supreme Court's recent decision in Chambers v. United 4 States, 129 S. Ct. 687 (2009), the matter should be remanded for 5 resentencing without reference to the ACCA. 6 with both Mills and the government that under Chambers, Mills's 7 prior conviction for escape in the first degree was not a violent 8 felony, we remand to the district court to vacate the sentence 9 and to resentence Mills. The government concedes that Because we agree 10 Mills contends further that his sentence was 11 procedurally unreasonable because the sentencing court failed to 12 address his request for a downward departure. 13 for resentencing in any event, we need not and do not resolve 14 this issue. BACKGROUND 15 16 Because we remand On February 18, 2003, Mills was indicted on one count 17 of being a felon in possession of a firearm in violation of 18 18 U.S.C. § 922(g)(1). 19 United States Probation Office prepared a presentence 20 investigation report ("PSR") recommending that Mills be sentenced 21 under the ACCA because he had three prior convictions for a 22 violent felony or serious drug offense. 23 that one of the three predicate offenses identified in the PSR, On October 19, 2006, he pled guilty. 3 The Mills objected, arguing 1 first-degree escape in violation of Conn. Gen. Stat. § 53a-169, 2 was not a violent felony.1 1 In 1997 the statute provided, in pertinent part: A person is guilty of escape in the first degree (1) if he escapes from a correctional institution or (2) if he escapes from any public or private, nonprofit halfway house, group home or mental health facility or community residence to which he was transferred pursuant to subsection (e) of section 18-100 and he is in the custody of the Commissioner of Correction or is required to be returned to the custody of said commissioner upon his release from such facility or (3) if he escapes from a work detail or school on the premises of the correctional institution or (4) if he fails to return from a furlough . . . or (5) if he fails to return from work release or education release as authorized under sections 18-90a and 18-100 or (6) if he escapes from a hospital for mental illness in which he has been confined . . . or (7) if, while under the jurisdiction of the Psychiatric Security Review Board, but not confined to a hospital for mental illness, he leaves the state without authorization of the board. Conn. Gen. Stat. § 53a-169(a). Connecticut law further provides: If the Commissioner of Correction deems that the purposes of this section may thus be more effectively carried out, the commissioner may transfer any person from one correctional institution to another or to any public or private nonprofit halfway house, group home or mental health facility or, after satisfactory participation in a residential program, to any approved community or private residence. Any inmate so transferred shall remain under the jurisdiction of said commissioner. Conn. Gen. Stat. § 18-100(e). 4 1 At an evidentiary hearing in the district court, 2 defense counsel established the circumstances of Mills's 3 conviction in state court for first-degree escape. 4 1997, Mills was released from prison and placed in "transitional 5 supervision," under which he was authorized to reside in a 6 private residence. 7 jurisdiction of the Connecticut Commissioner of Correction, see 8 Conn. Gen. Stat. § 18-100(e), and was required to satisfy 9 conditions similar to those required of parolees, including 10 On July 15, By statute, however, he remained under the reporting regularly to a community enforcement officer. 11 On July 16, 1997, the day after his release, Mills 12 reported as scheduled to his community enforcement officer. He 13 was required to do so thereafter on a weekly basis. 14 that appointment, however, he failed to appear for the meetings. Following 15 When Mills missed his next appointment, the enforcement 16 officer attempted to find Mills by visiting the private residence 17 in which he had been authorized to reside. 18 In light of Mills's continued missed appointments and the 19 officer's continued inability to locate him, Mills was charged 20 with first-degree escape in violation of Conn. Gen. Stat. § 53a- 21 169(a). 22 PSR relied on this conviction as a predicate violent felony 23 conviction in recommending that Mills be sentenced under the 24 ACCA. Mills was not there. On June 2, 1998, he was convicted of this crime. The 25 At a sentencing hearing held on January 22, 2007, the 26 district court rejected Mills's objection to the classification 5 1 of this offense as a violent felony for purposes of sentencing 2 him under the ACCA. 3 Taylor v. United States, 495 U.S. 575, 602 (1990), and relying on 4 United States v. Jackson, 301 F.3d 59, 63 (2d Cir. 2002) (holding 5 that escape is categorically a violent felony under the ACCA), 6 the court concluded that it was required to classify Mills's 7 conviction for escape as a violent felony and sentence him 8 accordingly under the ACCA. 9 that the statutory mandatory minimum sentence was 180 months and 10 the advisory sentencing range under the United States Sentencing 11 Guidelines was 188 to 235 months. 12 Employing the "categorical approach," see As a result, the court concluded Defense counsel argued for a below-Guidelines sentence 13 equal to the mandatory minimum, 180 months, based on the non- 14 violent nature of Mills's "escape" and his "extraordinary 15 rehabilitation" while incarcerated prior to sentencing. 16 also filed a sentencing memorandum setting forth two additional 17 grounds for a below-Guidelines sentence: the restrictive 18 conditions of his confinement while in state custody under a 19 federal detainer and "the profound effect upon Mr. Mills during 20 his formative years" of the suicides of his sister and godfather. 21 Mills The district court explicitly discussed the sentencing 22 factors enumerated in 18 U.S.C. § 3553(a). 23 entitled to," the district judge said, "includes an accommodation 24 for the fact that you have manifested a redirection of your 25 life . . . and I think you're entitled to some credit for that, 26 but on the other hand, the seriousness of the offense . . . is 6 "The credit you are 1 something I cannot ignore. . . . I am not inclined to think that 2 in reaching for what is a reasonable sentence, that going below 3 the [G]uideline range is warranted." 4 2007, Sentencing Hr'g (page unnumbered); Government Appendix at 5 126-27. 6 which was at the bottom of the Guidelines range and eight months 7 above the mandatory minimum sentence under the ACCA. Transcript of January 22, The court therefore imposed a sentence of 188 months, DISCUSSION 8 9 I. Applicability of the ACCA 10 A. Standard of Review 11 "We review de novo the district court's determination 12 of whether a prior offense is a 'violent felony' under the ACCA." 13 United States v. Lynch, 518 F.3d 164, 168 (2d Cir. 2008). 14 B. Analysis 15 Mills was convicted in state court of escape in the 16 first degree under Conn. Gen Stat. § 53a-169, the text of which 17 is set forth in the margin at note 1 above. 18 of this crime if, inter alia, he or she "escapes from a 19 correctional institution," Conn. Gen Stat. § 53a-169(a)(1), or 20 "escapes from any public or private, nonprofit halfway house, 21 group home or mental health facility or community residence to 22 which he was transferred pursuant to subsection (e) of section 23 18-100 and he is in the custody of the Commissioner of Correction 24 or is required to be returned to the custody of said commissioner 25 upon his release from such facility," id. at § 53a-169(a)(2). 26 The Connecticut Supreme Court has interpreted "escape" within the 7 A person is guilty 1 meaning of Section 53a-169 to mean any "unauthorized departure 2 from, or failure to return to, whatever may be designated as [the 3 defendant's] place of incarceration or confinement." 4 Lubus, 581 A.2d 1045, 1048 (Conn. 1990). 5 State v. "In Taylor[,] . . . the [Supreme] Court endorsed a 6 'categorical approach' to determining whether a prior conviction 7 qualifies as a 'violent felony' under the ACCA. 8 court generally must 'look only to the fact of conviction and the 9 statutory definition of the prior offense.'" The sentencing United States v. 10 Rosa, 507 F.3d 142, 151 (2d Cir. 2007) (quoting Taylor, 495 U.S. 11 at 602). 12 "the statutory definition of the state crime of conviction 13 encompasses both crimes that would qualify as a 'violent felony' 14 and crimes that would not, . . . the Taylor Court concluded that 15 a broader inquiry is permissible." 16 encompasses both violent and non-violent felonies, as Conn. Gen 17 Stat. § 53a-169 does, we make a limited inquiry into which part 18 of the statute the defendant was convicted of violating. 19 But where, as in Taylor, Rosa, and the instant case, Id. The inquiry is an easy one here. When a statute The government 20 concedes that Mills's prior conviction for escape was pursuant to 21 Conn. Gen Stat. § 53a-169(a)(2). 22 has made clear that a violation of this section of the statute is 23 consistent with both an affirmative escape from custody and a 24 mere failure to return. 25 conclude . . . that § 53a-169(a)(2) employs the term 'escape' to 26 contemplate an unauthorized departure from, or failure to return The Connecticut Supreme Court See Lubus, 581 A.2d at 1048 ("We 8 1 to, a 'community residence.'"). 2 concedes that, having the burden of proof on the issue, see Rosa, 3 507 F.3d at 151, it "did not establish, pursuant to [Shepard v. 4 United States, 544 U.S. 13, 26 (2005) (limiting court's review to 5 specific documents when deciding under which provision of a 6 statute encompassing both violent and non-violent crimes a 7 defendant was convicted)], that the defendant had been convicted 8 of an affirmative escape from custody rather than a failure to 9 return." 10 Moreover, the government also Government's Supplemental Letter Br. 2 (Feb. 4, 2009). The government therefore concluded: 11 12 13 14 15 16 For this reason, the record would not support, in the wake of Chambers, a conclusion that the defendant had been convicted in state court of an "escape" crime that generically qualifies as a violent felony under § 924(e) . . . . 17 18 19 20 21 22 23 24 25 26 27 28 [E]ven the facts outside the scope of Shepard, if they could have been considered, would have narrowed Mills'[s] conviction only to either a failure to report or a walkaway escape from a non-secure facility . . . . [T]he Government concedes that a simple walkaway escape from a nonsecure community residence does not constitute the sort of purposeful, aggressive and violent behavior that is required . . . to constitute a "violent felony" for the purposes of § 924(e). 29 Id. at 2-3. 30 We need not address whether a "walkaway escape" is, as 31 the government says, not a violent felony for these purposes 32 under Chambers. 33 Chambers, that a walkaway escape is categorically a violent 34 felony). Cf. Jackson, 301 F.3d at 63 (holding, prior to For the purpose of deciding this appeal, it is 9 1 sufficient to note our agreement with the government that after 2 Chambers, a failure to report or failure to return is not a 3 violent felony under the ACCA, and that the government concedes 4 it has not proved -- and cannot prove -- that Mills was convicted 5 of anything more than a failure to return. 6 Ct. at 693 ("[W]e conclude that the crime here at issue [failure 7 to report to a penal institution, in violation of Ill. Comp. 8 Stat., ch. 720, § 5/31-6(a)] falls outside the scope of ACCA's 9 definition of 'violent felony.'"); see also id. at 691 ("we See Chambers, 129 S. 10 believe that a failure to report (as described in the statutory 11 provision's third, fourth, fifth, and sixth phrases)[, including, 12 (3) failing to report to a penal institution, (4) failing to 13 report for periodic imprisonment, (5) failing to return from 14 furlough, (6) failing to return from work and day release,] is a 15 separate crime, different from escape (the subject matter of the 16 statute's first and second phrases)[, including (1) escape from a 17 penal institution and (2) escape from the custody of an employee 18 of a penal institution]"). 19 Mills's sentencing was thus improper, if understandably 20 so. The district court's determination that Mills was an armed 21 career criminal under the ACCA had two effects on his sentencing: 22 (1) it required a mandatory minimum sentence of 180 months under 23 18 U.S.C. § 924(e)(1); and (2) it changed Mills's base offense 24 level from 24 to 33 pursuant to U.S.S.G. § 4B1.4(b)(3)(B), which 25 led to a Guidelines imprisonment range of 188 to 235 months. 26 noted, the district court sentenced Mills to a term of 188 10 As 1 months, at the bottom of this range. Because the district 2 court's calculation of the applicable Guidelines range was 3 affected by its determination -- which, in light of Chambers, we 4 now recognize was incorrect -- that Mills was an armed career 5 criminal under the ACCA, we remand to the district court to 6 vacate the sentence and to resentence Mills.2 7 v. Fagans, 406 F.3d 138, 141 (2d Cir. 2005) ("In many 8 circumstances, an incorrect calculation of the applicable 9 Guidelines range will taint . . . [a sentence that] may have been Cf. United States 10 explicitly selected with what was thought to be the applicable 11 Guidelines range as a frame of reference."). 12 13 II. Whether Mills's Sentence Was Procedurally Unreasonable 14 We doubt that Mills's sentence was imposed in a 15 procedurally unreasonable manner. 16 S. Ct. 2456, 2468 (2007) ("The sentencing judge should set forth 17 [reasoning] enough to satisfy the appellate court that he has 18 considered the parties' arguments and has a reasoned basis for 19 exercising his own legal decisionmaking authority."); see also 20 United States v. Villafuerte, 502 F.3d 204, 210 (2d Cir. 2007) 21 (stating that although "[n]on-frivolous arguments for a 22 non-Guidelines sentence" may require some discussion, "we do not 23 insist that the district court address every argument the 2 See Rita v. United States, 127 We intimate no view as to the appropriate course of action when an improper application of the ACCA does not affect the district court's calculation of the applicable sentencing range. 11 1 defendant has made or discuss every § 3553(a) factor 2 individually"). 3 however, this is not an issue we need resolve. 4 5 6 Inasmuch as we are remanding for resentencing, CONCLUSION For the foregoing reasons, we remand to the district court to vacate the sentence and to resentence Mills. 12
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