United States v. Golden, Reggie , 466 F.3d 612 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1326
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
REGGIE GOLDEN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05 CR 119—John C. Shabaz, Judge.
____________
ARGUED SEPTEMBER 18, 2006—DECIDED OCTOBER 25, 2006
____________
Before BAUER, ROVNER, WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Reggie Golden pleaded guilty
to possessing a firearm as a felon in violation of 18
U.S.C. § 922(g)(1) and was sentenced to 200 months
imprisonment. On appeal, Golden challenges the district
court’s enhancement of his sentence pursuant to the armed-
criminal career statute, 18 U.S.C. § 924(e). Golden argues
that the district court erred in determining that Golden had
committed three prior violent felony offenses for the
purpose of the § 924(e) enhancement. Specifically, Golden
contends that the court erred in classifying as “violent
felonies” his two prior convictions for failure to report to
county jail. We affirm.
2 No. 06-1326
I. Background
On November 10, 2005, Golden pleaded guilty pursuant
to a written plea agreement to count II of a superceding
indictment, possession of a firearm by a felon in violation of
18 U.S.C. § 922(g)(1).
At the sentencing hearing, Golden objected to the Pre-
Sentence Investigation Report’s recommendation that he
was subject to the sentencing enhancement provision of
§ 924(e). Golden had been convicted previously of possession
of a short-barreled shotgun, false imprisonment, and, on
two separate occasions, failure to report to county
jail in violation of the Wisconsin Criminal Code, WIS.
STAT. § 946.425(1m)(b). Golden conceded that his convic-
tions for possession of a short-barreled shotgun and false
imprisonment were violent felonies. Golden argued, how-
ever, that failure to report to jail did not constitute a violent
felony pursuant to § 924(e).
The district court accepted the plea agreement and, over
Golden’s objection, found that the provisions of § 924(e)
applied to Golden’s sentence because Golden had at
least three previous convictions for violent felony offenses,
including the two convictions for failure to report to
county jail. The district court then determined that the
applicable guideline sentence was 188 to 235 months and
sentenced Golden to 200 months of imprisonment, followed
by five years of supervised release. This timely appeal
followed.
II. Discussion
Under § 924(e), a defendant who violates 18 U.S.C.
§ 922(g) and who has at least three prior convictions for
violent felonies or serious drug offenses is subject to a
mandatory minimum sentence of fifteen years imprison-
ment. 18 U.S.C. § 924(e)(1). Golden concedes that he has
No. 06-1326 3
two prior convictions for violent felonies, possession of a
short-barreled shotgun and false imprisonment, but
argues that the district court erred in determining that
his prior convictions for failure to report to jail con-
stitute violent felonies pursuant to § 924(e). He contends
that the failure to report to jail does not contain as an
element the use, attempted use, or threatened use of
physical force against another person or otherwise pre-
sent serious potential risk of physical injury to another
person. Whether a prior offense constitutes a “violent
felony” for purposes of sentencing is a question of law
that we review de novo. United States v. Wallace, 326 F.3d
881, 886 (7th Cir. 2003).
Section 924(e)(2)(B) defines “violent felony” as any crime
punishable by imprisonment exceeding one year that—
(1) has an element the use, attempted use, or threat-
ened use of physical force against the person of another,
or
(2) is burglary, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.
Id. (emphasis added).
Golden’s prior convictions for felony failure to report to
jail were pursuant to WIS. STAT. § 946.425(1m)(b).1 There is
no dispute that the use or threatened use of physical force
are not elements of an offense under WIS. STAT.
§ 946.425(1m)(b). The Court therefore must consider
whether the failure to report to jail “otherwise involves
1
Under this statute, “[a]ny person who receives a stay of
execution of a sentence of imprisonment of 10 or more days to
a county jail under s. 973.15(8)(a) and who intentionally fails
to report to the county jail as required under the sentence is guilty
of a Class H felony.” WIS. STAT. § 946.425(1m)(b) (2005).
4 No. 06-1326
conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
In making a risk determination, “the benchmark should
be the possibility of violent confrontation, not whether one
can postulate nonconfrontational hypothetical scenario.”
United States v. Franklin, 302 F.3d 722 at 723 (7th Cir.
2002) (quoting United States v. Davis, 16 F.3d 212, 217 (7th
Cir. 1994)). Rather than examining the specific facts of each
defendant’s offense to determine whether that offense
constitutes a violent felony, “sentencing courts take a
categorical approach, looking to the statutory elements of
the crime . . . .” Id. at 725 (holding that the crime of escape
is a crime of violence for purposes of § 924(e) because escape
involves a “serious potential risk of physical injury to
another”). See also Taylor v. United States, 495 U.S. 575,
600-01, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990) (adopting
a formal, categorical approach for determining whether a
particular offense constitutes a “violent felony” under
§ 924(e)).
Under this categorical approach, the Court sees no
principled distinction between the failure to report to
jail and the failure to report back to a halfway house
after being absent on a work release. See United States
v. Bryant, 310 F.3d 550 at 553-54 (7th Cir. 2002). In Bryant,
this Court held that the crime of escape, as a category, is a
crime of violence for purposes of the federal sentencing
guidelines. Id. at 554. After pleading guilty to four counts
of making false statements in connection with the transfers
of firearms in violation of 18 U.S.C. § 922(a)(6), the defen-
dant received an elevated base offense level under the
sentencing guidelines because of his previous conviction for
a “crime of violence.” The defendant had been convicted of
the crime of “escape” for failing to return to a halfway house
after receiving permission to be absent temporarily for work
purposes. Id. The defendant was on the lam for ten days
before being re-apprehended. He was charged with and
No. 06-1326 5
pleaded guilty to violating the federal scape statute, 18
U.S.C. § 751(a). Id.
On appeal, this Court rejected the defendant’s argu-
ment that the Court should adopt a fact-specific approach
to determine whether a particular offense constitutes a
crime of violence under the sentencing guidelines, reasoning
that this Court’s decision in Franklin and the Supreme
Court’s decision in Taylor foreclosed that argument. Id.
at 553-54 (citing Franklin, 302 F.3d at 724, Taylor, 495 U.S.
at 601). Moreover, the Court explained, the defendant’s
“approach risks opening the courts to countless arguments
as to whether a crime is actually an ‘escape’ or merely a
‘failure to return.’ ” Id. at 554.
The same reasoning holds true in the instant matter.
While Golden attempts to distinguish the failure to report
to jail from escape by arguing that the failure to report
to jail is a passive inaction rather than the deliberate action
of escaping from jail, both offenses involve the
same potential for a violent confrontation. In failing to
report to jail, the potential for a violent confrontation arises
between the defendant and law enforcement during the
attempted capture. In escaping from jail or in failing to
report back to a halfway house, the potential for a violent
confrontation arises during the attempted recapture.
Differentiating between capture and recapture serves no
useful purpose. Both offenses also involve a defendant
whose guilt has been adjudicated, who has received a
sentence, and who knows what the future
holds: incarceration. Following the required categorical
approach for determining whether an offense is a “violent
felony” for purposes of § 924(e), we find that the offense
of failing to report to jail constitutes such a “violent felony.”
The district court properly applied the sentenc-
ing enhancement to Golden.
6 No. 06-1326
III. Conclusion
For the foregoing reasons, we AFFIRM the sentence
imposed by the district court.
ROVNER, Circuit Judge, concurring. I concur in my
brother’s very fine opinion. I agree that treating failure
to report to jail as a violent felony is a logical extension
of our earlier decision treating failure to return to a halfway
house as a violent felony. See United States v. Bryant, 310
F.3d 550 (7th Cir. 2002). The risk to law enforcement is
likely the same in capture as it is in recapture. Defense
counsel relied largely on the difference between an active
escape and a passive failure to report to demonstrate that
the risks are not the same. There are many differences
between those who escape and those who fail to report, but
there are also many similarities. We assume for the pur-
poses of this opinion that the similarities are greater than
the differences and that both situations present a serious
potential risk of physical injury to law enforcement or the
public.
I write separately because, as a practical matter, we do
not know the actual risks to law enforcement officers
in recaptures following escapes (and in escapes, I include
failures to return to halfway house custody) versus captures
following failure to report to jail. The statute characterizes
as a violent felony a crime that “is burglary of a dwelling,
arson, or extortion, involves explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. §924(e)(2)(B) (empha-
sis added). I doubt that the failure to report for incarcera-
tion by its nature presents the same danger that escape
No. 06-1326 7
from custody does. In Bryant, we declined the defendant’s
invitation to reclassify his failure to return to halfway
house custody as a “failure to return” rather than escape.
Bryant was charged under an escape statute, which was
appropriate because he was in a type of custody in the
halfway house. We applied a categorical approach to
Bryant’s escape conviction and concluded that it posed the
same risks as any other escape.
The failure to report reflects deliberate disregard of an
order, but it is not clear to me that a defendant who fails to
report on schedule is any more likely to resist attempts to
take him into custody than someone who commits contempt
of court, for example. Escape is in that regard different: the
defendant has demonstrated not only a willingness to
disobey an order, but also a specific inclination to resist or
evade restraint, making it likely that the authorities will
have to employ force in order to recapture him. The mere
failure to report to custody in the first instance does not
reflect that extra element. No doubt the defendant who
chooses not to report for jail as ordered appreciates that the
authorities will come looking for him; but that decision,
unlawful as it is, does not necessarily or even probably
signal the defendant’s willingness to run or resist when a
sheriff’s deputy comes knocking on his door. There may well
be some defendants in this situation who have no intention
of going quietly, but we have no way of knowing how
representative those individuals would be. The government
has given us no statistics to support a conclusion that
failure to report to jail presents a serious potential risk to
the public or to the officers involved in the subsequent
capture.
Because we use a categorical approach in making this
determination, our decision will have a wide-ranging effect.
As counsel for Golden pointed out, a person who has never
committed a violent crime in her life but has failed to report
to jail in Wisconsin for three shoplifting sentences exceed-
8 No. 06-1326
ing ten days each would face this enhancement as a violent
felon. No other appellate court has considered whether
failure to report to jail is a violent felony. Most circuits
agree that all escapes, even those by stealth or those from
halfway houses, are violent felonies, mainly because of the
risks inherent in recapture. The Ninth Circuit has declined
to apply our categorical approach to a failure to return to a
halfway house. See United States v. Piccolo, 441 F.3d 1084
(9th Cir. 2006). Now that we have found that failure to
report constitutes a violent felony, we are on the path to
determining that comparable crimes, a probation violation,
for example, might qualify as well. If statistics do not bear
out the assumption that persons who fail to report pose a
serious potential risk of physical harm to others, we may
have to reconsider our approach.
WILLIAMS, Circuit Judge, dissenting. Because I do not
believe that “failure to report to jail” constitutes a “violent
felony” under 18 U.S.C. § 924(e)(2)(B)(ii), I respectfully
dissent.
The panel’s decision in this case is an outgrowth of our
holding in United States v. Franklin, 302 F.3d 722, 724 (7th
Cir. 2002), that all escapes constitute violent felonies
because “[e]ven the most peaceful escape cannot eliminate
the potential for violent conflict when the authorities
attempt to recapture an escapee.” Here, the panel opinion
concludes that there can be no logical difference between
capture and recapture. While it is a close question, I believe
that we must draw a line between capture and recapture or
risk exposing defendants to enhanced punishment under
section 924 on the basis of virtually any felony. My view
No. 06-1326 9
that Wisconsin’s “failure to report to jail” crime is not a
violent felony under section 924 is supported by a close
reading of the statute.
As Judge Bauer’s opinion observes, the relevant portion
of section 924 defines “violent felony” as one which “is
burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a seri-
ous potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii). The meaning of the final clause in sec-
tion 924, beginning with “otherwise,” is far from clear.
However, we can deduce its meaning by calling upon an
age-old canon of statutory construction, ejusdem generis,
which instructs that the scope of an ambiguous term in a
statute is limited by more precise terms with which it
is listed. See Tourdot v. Rockford Health Plans, 439 F.3d
351, 353 (7th Cir. 2006) (“Ejusdem generis provides guid-
ance on how to interpret language where meaning is not
plain. This Latin phrase confines the scope of a general
term to the nature of the preceding class or thing, unless a
contrary intent is clearly shown.”); see also McBoyle v.
United States, 283 U.S. 25, 26 (1931) (Holmes, J.) (“[A]fter
including automobile truck, automobile wagon and motor
cycle, the words ‘any other self-propelled vehicle not
designed for running on rails’ still indicate that a vehicle in
the popular sense, that is a vehicle running on land is the
theme. It is a vehicle that runs, not something, not com-
monly called a vehicle, that flies.”). In McBoyle, Justice
Holmes famously concluded that the words “any other
self-propelled vehicle not designed for running on rails” did
not include airplanes where the more specific words in
the statute referred only to vehicles that ran on land.
See id.
Here, it is worth asking if “failure to return to jail,” as
that crime is defined in Wisconsin, is like burglary, arson,
extortion, or crimes involving the use of explosives. The
10 No. 06-1326
common thread between these crimes is that they all
involve a “serious potential risk of physical injury to an-
other.” See 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). To
add failure to return to jail to the list would contort the will
of Congress into enhanced punishment when there is any
risk of physical injury.
In Davis, we stated that “in determining whether an
offense falls under the ‘otherwise’ clause, the benchmark
should be the possibility of violent confrontation, not
whether one can postulate a nonconfrontational hypo-
thetical scenario.” United States v. Davis, 16 F.3d 212, 217
(7th Cir. 1994). Although we used the word “possibility,” the
more appropriate term would have been “probability”— the
probability of violent confrontation is the benchmark that
best conforms with logic and Congressional intent.
All crimes carry the possibility of violent confronta-
tion—even the feeblest episode of shoplifting triggers the
possibility that violent confrontation will ensue when
a police officer attempts to apprehend the shoplifter. It
seems unlikely, however, that Congress would have gone to
the trouble of delimiting the reach of section 924 to “violent
felonies” if it intended to subject even this crime to en-
hanced punishment for recidivism. Moreover, if Congress
intended for the courts to examine the risk of physical
injury in the abstract, it could have simply instructed the
courts that “violent felonies” are all those involving “con-
duct that presents a serious potential risk of physical injury
to another,” but it did not. Instead, the legislature chose to
provide a list of crimes that presumably pose a comparable
risk of physical injury to others. The dissimilarity between
crimes involving the use of explosives and failure to report
to jail could not be more extreme.
Our prior opinions on the classification of escape crimes
under section 924 do not constrain our decision here. The
Wisconsin law that Golden was previously convicted of
violating provides: “Any person who receives a stay of
No. 06-1326 11
execution of a sentence of imprisonment of 10 or more
days to a county jail under s. 973.15(8)(a) and who inten-
tionally fails to report to the county jail as required under
the sentence is guilty of a Class H felony.” Wis. Stat.
§ 946.425(1m)(b). As we explained in Franklin, the categori-
cal approach mandated by Taylor1 requires us to “look[ ] to
the statutory elements of the crime, rather than the
particular facts underlying the conviction.” See Franklin,
302 F.3d at 723. In Franklin, the statutory elements of the
escape crime at issue were “(a) the knowing and voluntary
departure of a person (b) from lawful custody and (c) with
intent to evade due course of justice.” Id. (quoting Miller v.
State, 492 So. 2d 978, 981 (Miss. 1986)). While these were
the only elements necessary to secure a conviction under
the Mississippi escape statute, the first subsection of that
statute gives a glimpse into the minds of the drafters, as it
punishes “[w]hoever escapes or attempts by force or violence
to escape from any jail in which he is confined . . . .” See
Miss. Code Ann. § 97-9-49. The important point is that the
escape crime in Franklin punished intentional departure
from custody, an act that usually requires physical force.
This is likely the reason that the Mississippi legislature
chose to punish first and foremost those who use force or
violence to escape under § 97-9-49. Our other cases also
involved statutes that punished active crimes posing a high
risk of physical injury to another. See, e.g., United States v.
Howze, 343 F.3d 919, 921 (7th Cir. 2003) (finding that
statute which proscribed “knowingly flee[ing] or
attempt[ing] to elude any traffic officer by willful or wanton
disregard of such signal so as to interfere with or endanger
the operation of the police vehicle, or the traffic officer or
other vehicles or pedestrians” was properly classified as a
violent felony under 18 U.S.C. § 924(e)(2)(B)(ii)) (quoting
Wis. Stat. § 346.04(3)); United States v. Bryant, 310 F.3d
1
Taylor v. United States, 495 U.S. 575, 601 (1990).
12 No. 06-1326
550, 553 (7th Cir. 2002) (applying categorical approach to
defendant’s “failure to return”-type escape and finding that
it constituted a crime of violence where the statute pun-
ished “escapes or attempts to escape from the custody of the
Attorney General or his authorized representative, or from
any institution or facility”).
By contrast, Golden’s prior offense, failure to report to
jail, is largely a crime of omission. Cf. United States v.
Piccolo, 441 F.3d 1084, 1088 (9th Cir. 2006) (“Those
who leave without returning do not pose an automatic
risk of danger and therefore do not categorically raise a
serious potential risk of physical harm.”); United States v.
Adkins, 196 F.3d 1112, 1119 (10th Cir. 1999) (McKay, J.,
concurring) (“There is a quantum difference between the
assumptions about the intrinsic danger of unauthorized
departure from actual custody, as in this case, and of failure
to return from authorized departure from actual custody.”).
No element of the Wisconsin statute at issue involves force
or violence, or suggests the likelihood of physical injury.
While it is possible that, eventually, some physical alterca-
tion could occur, as Judge Rovner points out in her concur-
rence, the government has not introduced any evidence
indicating that failure to report is typically a violent crime.
Regardless, if a failure to report ultimately results in a
violent confrontation, the violator’s record will likely
contain a crime more appropriately suited to section 924’s
violent crime definition, such as assault or battery. Thus, I
would not find that Section 924(e)(2)(B)(ii)’s definition of
“violent felony” includes Golden’s failure to report to jail
felony.
By extending our violent felony jurisprudence to crimes
such as failure to report to jail, we run the risk of com-
promising the very due process concerns that the Supreme
Court addressed in McBoyle, where Justice Holmes wrote:
Although it is not likely that a criminal will carefully
consider the text of the law before he murders or steals,
No. 06-1326 13
it is reasonable that a fair warning should be
given to the world in language that the common
world will understand, of what the law intends to do
if a certain line is passed. To make the warning fair, so
far as possible the line should be clear. When a rule of
conduct is laid down in words that evoke in the common
mind only the picture of vehicles moving on land, the
statute should not be extended to aircraft simply
because it may seem to us that a similar policy applies,
or upon the speculation that if the legislature had
thought of it, very likely broader words would have
been used.
McBoyle, 283 U.S. at 27 (emphasis added); see also United
States v. Lanier, 520 U.S. 259, 265 (1997) (citing McBoyle
for principle that due process requires fair warning “in
language that the common world will understand”). No
layman would anticipate that “failure to report to jail,” as
that crime is defined in Wisconsin, would trigger a recidi-
vist statute that punishes those guilty of committing
multiple violent felonies. While that fact is not dispositive
in our inquiry, it should trigger some alarm with regard
to the distance our interpretation of section 924 has trav-
eled from “language that the common world” would under-
stand. For these reasons, I respectfully dissent.
14 No. 06-1326
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-25-06