DEFENDANT-APPELLANT’S OPENING BRIEF · 10/8/2014 · The Honorable J. Michael Seabright, United...

C.A. NO. 11-10459

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JORDON SIMMONS,

Defendant-Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF HAWAII

The Honorable J. Michael Seabright, United States District JudgeDistrict Court Criminal Number 1:10-cr-00789

DEFENDANT-APPELLANT’S OPENING BRIEF

PETER C. WOLFF, JR.Federal Public DefenderDistrict of Hawaii300 Ala Moana Boulevard, Suite 7104Honolulu, Hawaii 96850-5269Telephone: (808) 541-2521Facsimile: (808) 541-3545

Counsel for Defendant-AppellantJORDON SIMMONS

Case: 11-10459 12/04/2013 ID: 8889192 DktEntry: 13-1 Page: 1 of 30

TABLE OF CONTENTSPage

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BAIL STATUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CASE STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

FACTUAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

I. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

II. The District Court Calculated The Applicable GuidelineRange Incorrectly Because The Defendant Was Not A CareerOffender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

STATEMENT OF RELATED CASES

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

i


TABLE OF AUTHORITIES

Cases Page(s)

Chambers v. United States, 555 U.S. 122 (2009) . . . . . . . . . 5, passim

Descamps v. United States, 133 S. Ct. 2276 (2013) . . . . . . . . 2, passim

Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013) . . . 15-16

State v. Smith, 59 Haw. 456 (1978) . . . . . . . . . . . . . . . . . . . . 5, passim

United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . 2, passim

United States v. Bonilla-Guizar, 729 F.3d 1179 (9th Cir. 2013) . . . . 15

United States v. Castillo-Marin, 684 F.3d 914 (9th Cir. 2012) . . . . . 15

United States v. Cotton, 535 U.S. 625 (2002) . . . . . . . . . . . . . . . 12, 15

United States v. Crews, 621 F.3d 849 (9th Cir. 2010) . . . . . . . . . . . . 13

United States v. Spencer, 724 F.3d 1133 (9th Cir. 2013) . . . . . . 13, 15

Williams v. United States, 307 F.2d 366 (9th Cir. 1962) . . . . . . . . . . . 9

Statutory Provisions

18 U.S.C. § 922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. § 924 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, passim

18 U.S.C. § 3231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 3742 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ii


TABLE OF AUTHORITIES(Continued)

Statutory Provisions Page(s)

21 U.S.C. § 841 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

21 U.S.C. § 846 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 2255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Haw. Rev. Stat. § 710-1020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Haw. Rev. Stat. § 710-1021 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, passim

Guideline Provisions

U.S.S.G. § 4B1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, passim

U.S.S.G. § 4B1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, passim

U.S.S.G. § 5A (Sentencing Table) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Rules

Fed. R. App. P. 4(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. Crim. P. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8

Other Authority

Haw. Pattern. Jury Instr. Crim. § 12.04 . . . . . . . . . . . . . . . . . . . 11, 19

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JURISDICTION

In this criminal matter, the district court had jurisdiction under

18 U.S.C. § 3231. The district court filed its written judgment on

September 14, 2011. Defendant-Appellant’s Excerpts of Record (ER)

46–53; Dist. Ct. Docket 76. The defendant timely filed a notice of appeal

on September 16, 2011. ER 54–56; Fed. R. App. P. 4(b). This Court

granted the defendant’s motion for voluntary dismissal of his appeal on

January 18, 2012, ER 57, but recalled its mandate and reinstated the

defendant’s direct appeal on September 6, 2013, ER 61. This Court has

jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

BAIL STATUS

The defendant is presently serving his sentence at Atwater USP.

His projected release date is March 5, 2023.

ISSUE PRESENTED

The general question that this case presents is whether the

district court erroneously calculated the guidelines. This general

question turns on a series of subsidiary questions.

It turns on whether the defendant is a career offender under

U.S.S.G. § 4B1.1(a) because he had two prior convictions for crimes of

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violence. That question turns on whether the defendant’s prior

conviction for second degree escape in violation of Haw. Rev. Stat.

§ 710-1021 was a crime of violence under U.S.S.G. § 4B1.2(a)(2) because

it involved conduct that presented a serious potential risk of physical

injury to another. That question turns on whether § 710-1021 is subject

to the modified categorical approach or not. And that question turns on

whether § 710-1021, under Descamps v. United States, 133 S. Ct. 2276

(2013), defines an indivisible set of elements for second degree escape.

CASE STATEMENT

On April 19, 2011, the defendant pled guilty in this matter to six

drug and firearm offenses without a plea agreement. Dist. Ct. Docket 1,

16, and 46. At sentencing, the district court determined that the

defendant was a career offender pursuant to U.S.S.G. § 4B1.1(a), based

on its determination that the defendant’s Hawaii conviction for second

degree escape constituted a crime of violence under this Court’s (now

abrogated) approach to the modified categorical approach. ER 16–23;

United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011) (en

banc), abrogated by Descamps v. United States, 133 S. Ct. 2276 (2013).

The career offender determination elevated the applicable guideline

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range from 135–168 to 188–235 months of imprisonment. Presentence

Report (PSR) at pp. 8–14.

Prior to sentencing, the district court had agreed with the parties

and accordingly ruled that the defendant’s second degree escape

conviction did not qualify as a crime of violence under the categorical

approach. Dist. Ct. Docket 67. But at sentencing, the district court

found that the defendant’s remarks when pleading guilty to second

degree escape indicated that his conviction was necessarily based on

conduct that posed a serious potential risk of injury to another.

ER 17-23. The district court therefore concluded that the second degree

escape conviction qualified as a crime of violence under the modified

categorical approach. Id. The defendant objected to being classified as

a career offender under either the categorical approach or the modified

categorical approach. ER 9–10; Dist. Ct. Docket 55, 64, 69.

The district court sentenced the defendant to a total sentence of

204 months’ imprisonment and four years’ supervised release, varying

downward for pre-sentencing cooperation. ER 35,48, 50. Pursuant to

the government’s motion under Fed. R. Crim. P. 35(b)(1), the district

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court later lowered the defendant’s sentence to a total sentence of 168

months of imprisonment. ER 60.

The district court filed its written judgment on September 14,

2011. ER 46. The defendant filed his notice of appeal on September 16,

2011. ER 54. This Court granted his motion for voluntary dismissal of

his appeal on January 18, 2012. ER 57. But this Court recalled its

mandate and reinstated his appeal on September 6, 2013. ER 61. This

direct appeal is therefore not untimely.

FACTUAL STATEMENT

The government indicted the defendant on six drug and firearm

offenses under 18 U.S.C. §§ 922(g)(1), 924(c), and 924(o) and 21 U.S.C.

§§ 841 and 846 that occurred in October 2010. ER 1–6. On April 19,

2011, the defendant plead guilty to the charged offenses without a plea

agreement. Dist. Ct. Docket 46.

The presentence report recommended that the district court find

that the defendant was a career offender under U.S.S.G. § 4B1.1(a)(1)

based on prior convictions in the State of Hawaii for second degree

assault and second degree escape. PSR at ¶ 48. The defendant objected

to being classified as a career offender, arguing that his prior conviction

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for second degree escape under Haw. Rev. Stat. § 710-1021 was not a

crime of violence using either the categorical or modified categorical

approaches. ER 9–10; Dist. Ct. Docket 55, 64, 69; Addendum to the

Presentence Report at pp. 1A–2A.

The district court (and the government) agreed that second degree

escape, as defined by Haw. Rev. Stat. § 710-1021, was not categorically

a crime of violence. The district court initially did so in a minute order,

which appears to have only been entered as “docket text” in the district

court’s docket. The relevant entry reads, in pertinent part:

Defendant Jordon Simmons disputes the findingthat his conviction for Escape in the SecondDegree, in violation of Hawaii Revised Statutes(HRS) § 710-1021, is a crime of violence. Docs.No. 55 and 64. Under the categorical approach,it appears that Simmons[’s] HRS § 710-1021conviction is not a crime a violence. SeeChambers v. United States, 555 U.S. 122 (2009);State v. Smith, 59 Haw. 456 (1978).

Dist. Ct. Docket 67. Chambers held that a failure-to-report escape was

not a crime of violence, contrasting such passive types of escape, which

do not pose a serious potential risk of injury to another, with escapes

from the actual custody of a police officer or guard, which did.

Chambers, 555 U.S. at 126–130; see also U.S.S.G. § 4B1.2(a)(2) (defining

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a “crime of violence” as, among other things, a felony that “involves

conduct that presents a serious potential risk of physical injury to

another”); 18 U.S.C. § 924(e)(2)(B) (same). Smith construed the

“custody” element of second degree escape under Haw. Rev. Stat.

§ 710-1021 as including not only escape from the actual custody, but also

any other type of escape that was “perpetrated by a person even though

he [was] not in actual physical custody or under immediate control and

supervision of a guard” — in other words, as including walk-away and

failure-to-report types of escape. Smith, 59 Haw. at 462, 583 P.2d 337,

342.

The district court, however, requested that the parties submit

additional briefing and relevant documentation regarding whether the

defendant’s escape conviction qualified as a crime of violence under

the modified categorical approach and this Court’s (since abrogated)

decision in Aguila-Montes De Oca. Dist. Ct. Docket 67. The defendant

maintained his view that, even under Aguila-Montes De Oca, his escape

conviction should not qualify as a crime of violence under the modified

categorical approach. Dist. Ct. Docket 69.

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At sentencing, the district court orally confirmed its minute order

ruling that a conviction under § 710-1021 did not categorically qualify as

a crime of violence at sentencing:

First, I believe everyone agrees under theShepard’s categorical approach it is not a crime ofviolence. We know that failure to report, forinstance, pursuant to Chambers [v.] UnitedStates, is not categorically a crime of violence,according to the Supreme Court. And we alsoknow that the Hawaii Supreme Court has saidthat an inmate who intentionally fails to returnto custody commits the offense of Escape in theSecond Degree. So it encompasses conduct whichis clearly not a crime of violence. So categoricallyit is not a crime of violence.

ER 17. But it orally ruled that the defendant’s prior escape conviction

qualified as a crime of violence under the modified categorical approach.

It did so by finding that the defendant’s remarks when pleading guilty

to second degree escape — admitting that he “ran away” from “a police

car” without “permission” — indicated that he escaped from actual,

police custody and did not commit a walk-away or failure-to-report

escape. The district court then concluded that this conduct posed a

serious potential risk of physical injury to another, that the escape

conviction “necessarily rested” on such conduct, and that the escape

conviction therefore qualified as a crime of violence under Aguila-

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Montes De Oca’s approach to the modified categorical approach.

ER 17–23.

The district court filed its written judgment on September 14,

2011. ER 46. The defendant filed his notice of appeal on September 16,

2011. ER 54. This Court, however, granted his motion for voluntary

dismissal of his appeal on January 18, 2012. ER 57.

On September 28, 2012, the district court filed a written order

granting the government’s motion to reduce the defendant’s sentence

under Fed. R. Crim. P. 35(b)(1). ER 59–60. The district court’s order

reduced the defendant’s original total sentence of 204 months’

imprisonment to a total sentence of 168 months of imprisonment.

ER 60.

On January 23, 2013, the defendant filed a motion under 28 U.S.C.

§ 2255 challenging his sentence. Dist. Ct. Docket 115. He argued two

things: (1) his counsel was ineffective for not getting the § 924(c)

charges dismissed; and (2) his counsel was ineffective for successfully

seeking voluntary dismissal of his direct appeal because she lacked his

consent. Id. The district court dismissed the motion as to the

defendant’s first claim contesting his § 924(c) convictions and denied a

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certificate of appealability on that claim. Dist. Ct. Docket 118 and 131.

As to the second claim, the district court appointed present counsel to

represent the defendant, but, after further briefing, denied the second

claim as well, on the ground that it lacked jurisdiction under Williams v.

United States, 307 F.2d 366 (9th Cir. 1962), to grant relief for ineffective

assistance of appellate counsel. Dist. Ct. Docket 135.

In accord with Williams, the defendant thereafter filed a motion in

this Court to recall the mandate in his direct appeal on August 8, 2013.

Ninth Cir. Docket 10. In his recall-the-mandate motion, the defendant

raised the same claim he had in the district court: his counsel on direct

appeal had been ineffective in seeking and obtaining voluntary dismissal

of his appeal because he did not consent to her doing so. Id. In an order

filed on September 6, 2013, this Court granted the defendant’s motion

and reinstated his direct appeal. Dist. Ct. Docket 136; Ninth Cir.

Docket 12.

ARGUMENT SUMMARY

There is no dispute in this matter that, in accord with Chambers

and Smith, second degree escape under Haw. Rev. Stat. § 710-1021 does

not constitute a crime of violence. Smith held that the “custody”

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element of the offense included both active types of escape, such as those

from the actual custody of a guard or police officer, and passive types of

escape, such as those involving a failure to report or other types of walk-

away escapes. Smith, 583 P.2d at 342. Chambers defined generic

escape (for purposes of determining whether escape was a crime of

violence because it involved conduct that presented a serious potential

risk of physical injury to another) as excluding passive, failure-to-

report types of escape. Chambers, 555 U.S. at 126–130. As such, there

is no doubt that the defendant’s second degree escape conviction does

not qualify as a crime of violence under the categorical approach,

because § 710-1021 includes the kinds of escape that Chambers

excluded from the generic offense.

The question, then, is whether the modified categorical approach

applies in this case. Descamps teaches that the modified categorical

approach only applies to divisible statutes. When the prior conviction is

for a crime that has only “a single, indivisible set of elements,” the

modified categorical approach does not apply. Descamps, 133 S. Ct. 2282.

Where such is so, if the prior offense is not a crime of violence under the

categorical approach, then that is the end of the matter. Id.

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The statute defining second degree escape in Hawaii provides as

follows: “A person commits the offense of escape in the second degree if

the person intentionally escapes from a correctional or detention facility

or from custody.” Haw. Rev. Stat. § 710-1021(1). It is convenient for

purpose of analysis under Descamps to characterize this statute as a

‘hybrid’ one. It is divisible because it defines three types of escape: (1)

escape from a correctional facility; (2) escape from a detention facility;

and (3) escape from custody. Hawaii’s model instruction for the offense,

Haw. Pattern. Jury Instr. Crim. § 12.04, confirms as much, presenting

“correctional facility,” “detention facility,” and “custody” as alternatives

to each other. But the statute is also indivisible as to each of the three

types of escape it defines. When the offense is escape from custody,

rather than from a correctional or detention facility, state law defines the

offense with a single set of elements. State law does not, that is, set out

different alternatives or otherwise define separate offenses based on

whether the offense involved escape from actual, active custody or

instead involved only passive, walk-away or failure-to-report types of

escape. Smith, rather, broadly construed the “custody” element of the

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escape from custody offense to include both active and passive types of

conduct.

Because escape from custody under § 710-1021 is defined by a

single, indivisible set of elements, the modified categorical approach is

not applicable. The district court therefore erred in finding that the

defendant’s second degree escape conviction was a crime of violence

under the modified categorical approach. Once the district court

determined that the defendant’s prior conviction for second degree

escape was not categorically a crime of violence, it should have directly

concluded that the defendant was not a career offender rather than

consider whether it qualified under the modified categorical approach.

That the district court relied at sentencing on settled circuit

precedent that Descamps later overruled does not affect the outcome

here. This is because the error is plain as of the time of this appeal and

it is clearly prejudicial, having resulted in a significant elevation in the

applicable guideline range. United States v. Cotton, 535 U.S. 625, 632

(2002). This Court, accordingly, should vacate the district court’s

judgment and remand for resentencing in this matter without the career

offender enhancement skewing the applicable guideline range and the

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district court’s starting point for determining the sentence that is no

greater than necessary to serve the statutory goals of sentencing.

ARGUMENT

I. Standard of Review

This Court “review[s] the district court’s determination that a

conviction constitutes a ‘crime of violence’ under § 4B1.2(a) of the

Sentencing Guidelines de novo.” United States v. Spencer, 724 F.3d

1133, 1136 n. 2 (9th Cir. 2013) (citing United States v. Crews, 621 F.3d

849, 851 (9th Cir. 2010)).

II. The District Court Incorrectly Calculated The ApplicableGuideline Range Because The Defendant Was Not ACareer Offender.

At sentencing, the district court determined that the defendant was

a career offender under U.S.S.G. § 4B1.1(a) because he had two prior

convictions for crimes of violence. ER 17–23. The career offender

determination elevated the defendant’s criminal history category from

3 to 6, which alone elevated the applicable guideline range from 135–168

to 188–235 months’ imprisonment. PSR at pp. 8–14; U.S.S.G. § 5A

(Sentencing Table). A career offender determination may also trigger a

prejudicial effect in a defendant’s offense level pursuant to U.S.S.G.

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§ 4B1.1(b). This Court, however, need not delve into whether, taking

into consideration the Guideline’s grouping rules, designation as a career

offender did so in the present matter — that is a question that may be

left for the district court to determine in the first instance on remand.

This is because the prejudicial effect of the career offender determination

on the defendant’s criminal history score suffices to establish whatever

degree of prejudice the error in this case may require to constitute

reversible error.

Similarly, this Court need not determine whether the error here

should be reviewed under the harmless error standard or under the plain

error standard. This is because the error constitutes reversible error

under either standard, given the significant effect it had in skewing the

applicable guideline range and the fact that the error was the result of

one of this Court’s cases (Aguila-Montes de Oca) that the Supreme Court

has since overturned (Descamps). These things establish not only that

error in designating the defendant a career offender was not harmless,

but that the error affected the defendant’s substantial rights and

seriously affected the fairness, integrity, or public reputation of judicial

proceedings. United States v. Bonilla-Guizar, 729 F.3d 1179, 1188 (9th

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Cir. 2013) (reaffirming that “when a sentencing judge incorrectly

calculates the Guidelines range, potentially resulting in the imposition

of a greater sentence, the error affects the defendant’s substantial rights

and ‘the fairness of the judicial proceedings’” (quoting United States v.

Castillo-Marin, 684 F.3d 914, 927 (9th Cir. 2012))). And given that

Descamps was decided before this direct appeal has come to an end, if

error occurred under Descamps, then it is “plain,” notwithstanding that

it wasn’t so when the error occurred at sentencing. Cotton, 535 U.S. at

632. Accordingly, the only thing really at issue here is whether error

under Descamps in fact occurred. As the discussion below evinces, it did.

The first step in determining whether a prior conviction is for a

crime of violence looks at whether the prior offense categorically qualifies

as a crime of violence. Descamps, 133 S. Ct. at 2283; Rodriguez-

Castellon v. Holder, 733 F.3d 847, 853 (9th Cir. 2013).1 This “formal

1 The residual clause of both U.S.S.G. § 4B1.2(a)’s definitionof “crime of violence” is the same as the residual clause of the definitionof “violent felony” under the Armed Career Criminal Act, 18 U.S.C.§ 924(e)(2)(B). Cases involving whether a prior offense is or is not acrime of violence under the residual clause of either of these provisions may be relied upon given that the residual clauses are identical to eachother. See, e.g., United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir.2013).

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categorical approach” asks only whether the prior offense has the same

elements as one of the generic crimes of violence listed in the relevant

definition of “crime of violence,” here U.S.S.G. § 4B1.2(a)(2), or whether

the prior offense “defines the crime more narrowly” than the generic

crime is federally defined. Descamps, 133 S. Ct. at 2283; see also

Rodriguez-Castellon, 733 F.3d at 853. If the statute defining the prior

offense “sweeps more broadly than the generic crime,” then “a

conviction cannot count” as a crime of violence. Descamps, 133 S. Ct. at

2283; see also Rodriguez-Castellon, 733 F.3d at 853 (“if the state statute

of conviction criminalizes more conduct than the general generic

offense, then the state offense is not categorically included in the

definition of the federal generic offense”).

In some cases, a second step may be employed if the prior offense

does not qualify under the categorical approach. Under the “modified

categorical approach,” the court may look to a limited set of documents

from the prior court record to determine whether the prior offense

qualifies. Descamps, 133 S. Ct. at 2283–2284; see also Rodriguez-

Castellon, 733 F.3d at 853. The modified categorical approach only

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applies, however, in a “narrow range of cases.” Descamps, 133 S. Ct. at

2283.

That narrow range of cases consists of those in which the statute

defining the prior offense is a “divisible” one. Id. at 2284. A statute is

divisible under Descamps when it defines “multiple, alternative versions

of the crime[.]” Id. The focus is still on the elements of the crime, but

documentary evidence from the prior court record may be used to figure

out which version of the prior crime the defendant was indeed convicted

of committing. Id. at 2285. When the statute defining the prior offense

is not divisible — when, that is, the prior offense consists of “a single,

indivisible set of elements” — the modified categorical approach may not

be used. Id. at 2282. In such cases, the analysis of whether the prior

offense qualifies as a crime of violence begins and ends with whether it

qualifies under the categorical approach. Id. at 2282, 2285–2286.

In the present matter, one of the defendant’s prior convictions that

the district court relied upon to designate him a career offender was a

conviction for second degree escape in violation of Haw. Rev. Stat.

§ 710-1021. Section 710-1021 defines second degree escape as follows:

“A person commits the offense of escape in the second degree if the

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person intentionally escapes from a correctional facility or detention

facility or from custody.” Haw. Rev. Stat. § 710-1021(1). This statute

has both divisible and indivisible aspects.

Section 710-1021 is divisible because it defines three alternative

versions of second degree escape. One is escape from a correctional

facility. The second is escape from a detention facility. And the third is

escape from custody.

Hawaii’s model jury instruction confirms that there are three

versions of second degree escape. The model instruction defines the

elements of second degree escape as follows:

A person commits the offense of Escape in theSecond degree if he/she intentionally escapesfrom [a correctional facility] [a detention facility][custody].

There are two material elements of theoffense of Escape in the Second Degree, each ofwhich the prosecution must prove beyond areasonable doubt.

These two elements are:

1. That, on or about (date) in the [Cityand] County of (name of county), the Defendantescaped from [a correctional facility] [a detentionfacility] [custody]; and

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2. That the Defendant did sointentionally.

Haw. Pattern Jury Instr. Crim. § 12.04. In this model instruction, the

brackets “are used to indicate words, phrases or sentences which should

be used or eliminated in accordance with the actual charges in the

individual case.” Haw. Pattern Jury Instr. (Introduction). In other

words, the bracketed words are alternatives to each other.

With regard to escape from custody, state case law construes the

element of “custody” broadly. Smith, 59 Haw. at 462, 583 P.2d at 342.

In Hawaii, the custody element of escape from custody includes not only

escape from the actual custody of a police officer or guard. It also

includes passive types of escape, those that are “perpetrated by a person

even though he is not in actual physical custody or under immediate

control and supervision of a guard[.]” Id. Hawaii thus defines second

degree escape from custody broadly as including walk-away and failure-

to-report types of escape. Id.

In this case, it is Section 4B1.2’s definition of “crime of violence”

that is relevant. Section 4B1.2 defines “crime of violence” as meaning:

any offense under federal or state law, punishableby imprisonment for a term exceeding one year,that —

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(1) has as an element the use, attempteduse, or threatened use of physical forceagainst the person of another, or

(2) is burglary of a dwelling, arson, orextortion, involves the use of explosives orotherwise involves conduct that presents aserious potential risk of physical injury toanother.

U.S.S.G. § 4B1.2(a).

Second degree escape from custody is not an offense that has an

element that requires the use, attempt use, or threatened use of physical

force against the person of another.2 Nor is escape a burglary of a

dwelling, arson, or extortion offense or an offense that involves the use

of explosives. Thus, the question here is whether the defendant’s

second degree escape conviction qualifies as a crime of violence under

the residual clause of §4B1.2(a)(2). And that question turns on whether

§ 710-1021 defines an offense that involves conduct that presents a

serious potential risk of physical injury to another.

In Chambers, the Supreme Court explained when escape is

generically an offense that involves a serious potential risk of physical

2 In Hawaii, it is first degree escape that has a force element,not second degree escape. See Haw. Rev. Stat. § 710-1020(1).

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injury to another. Chambers held that the offense of failure-to-report

escape did not involve conduct that presents a serious potential risk of

physical injury to another. Chambers, 555 U.S. at 128–130. In doing so,

the Supreme Court contrasted the risk posed by such passive types of

escape with the risk posed in escapes from the actual custody of a police

officer or guard. Id. at 126–130. Escapes from actual custody pose a risk

of injury that is comparable to the risk posed by the enumerated crimes

of violence, burglary of a dwelling, arson, extortion and offenses

involving the use of explosives; such escapes therefore qualify under the

residual clause. Id. But passive escapes, involving nothing more than a

failure to report, do not pose a risk that is comparable to that posed by

the listed offenses; such passive escapes therefore do not qualify under

the residual clause and fall outside the generic category of offenses that

present a serious potential risk of physical injury to another. Id.

Given Smith and Chambers, the district court correctly ruled that

the defendant’s second degree escape conviction was not a crime of

violence under the categorical approach. Second degree escape from

custody in Hawaii is defined broadly as including the passive types of

escape that Chambers held do not qualify under the residual clause.

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Modified categorical analysis does not lead to a different result.

Under Descamps, the modified categorical approach may only be used in

this matter to determine whether the defendant’s second degree escape

conviction was for escape from a correctional facility, from a detention

facility, or from custody. It may not be used to make some further

determination about the type of custody that predicated the defendant’s

conviction. This is because, as Smith construes the “custody” element

of the offense, second degree escape from custody is not a divisible

offense, but an indivisible one that consists of a single set of elements.

And those elements are defined broadly as including conduct that does

not constitute a crime of violence under the residual clause.

The district court therefore erred in using the modified categorical

approach to determine the type of custody from which the defendant

escaped. Once the district court determined that the defendant’s second

degree escape conviction was for the offense of escape from custody, the

inquiry was over and the modified categorical analysis could not be

further used to make such a factual determination.

That the district court relied on this Court’s decision in Aguila-

Montes de Oca does not alter the outcome here. This is because this

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matter is still on direct appeal. And at the time of this appeal, Descamps

has made clear that Aguila-Montes de Oca was wrongly decided. It thus

also makes clear that the district court erred in using the modified

categorical approach to find that the defendant’s prior conviction for

second degree escape involved an escape from police custody, rather than

some other type of custody that did not pose the requisite degree of risk

to constitute a crime of violence under the residual clause of

§ 4B1.2(a)(2).

CONCLUSION

This Court should vacate the district court’s judgment and remand

for resentencing.

DATED: Honolulu, Hawaii, December 4, 2013.

/s/ Peter C. Wolff, Jr. PETER C. WOLFF, JR.


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STATEMENT OF RELATED CASES

Counsel is not aware of any cases pending in this Court that are

related to the present matter.





CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), I hereby certify that this

principal brief complies with Fed. R. App. P. 32(a)(7)(B)(i); it is

proportionately spaced in 14-point Century Schoolbook typeface and

contains less than 14,000 words; specifically, it contains 4,494 words.





CERTIFICATE OF SERVICE

I hereby certify that on December 4, 2013, I electronically filed the

foregoing with the Clerk of Court for the United States Court of Appeals

for the Ninth Circuit by using the appellate CM/ECF system.

I certify that all participants in this case are registered CM/ECF

users and that service will be accomplished by the appellate CM/ECF

system.




DEFENDANT-APPELLANT’S OPENING BRIEF · 10/8/2014 · The Honorable J. Michael Seabright, United...

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