United States v. Thomas F. Mills ( 2009 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 06-2306
    ___________
    United States of America,               *
    *
    Appellee,                  *
    *
    v.                                *    On remand from the Supreme
    *    Court of the United States.
    Thomas Frederick Mills,                 *
    *    [PUBLISHED]
    Appellant.                 *
    *
    ___________
    Submitted: July 8, 2009
    Filed: August 14, 2009
    ___________
    Before WOLLMAN, MURPHY, and BYE, Circuit Judges.
    ___________
    PER CURIAM.
    In 2005, Thomas Mills (Mills) pled guilty to escape in violation of 18 U.S.C.
    § 751(a) and theft of government property in violation of 18 U.S.C. § 641. At
    sentencing, the district court determined that Mills was a career offender under
    U.S.S.G. § 4B1.1(a) because of two earlier felony convictions for controlled substance
    offenses and his escape conviction under § 751(a). Mills appealed his sentence, and
    we affirmed. United States v. Mills, 223 Fed. Appx. 516 (8th Cir. 2007) (unpublished
    per curiam). Mills' appeal is again before us on remand from the United States
    Supreme Court. See Mills v. United States, 
    129 S. Ct. 989
    (2009). We now remand
    for resentencing.
    At the time of Mills' sentencing hearing, this court had determined that all
    convictions for felony escape qualified as a crime of violence under U.S.S.G. § 4B1.2.
    United States v. Nation, 
    243 F.3d 467
    , 472 (8th Cir. 2001). Following Mills'
    sentencing, the Supreme Court issued its opinion in Chambers v. United States, 
    129 S. Ct. 687
    (2009), holding that an escape conviction for failure to report was not a
    crime of violence under the Armed Career Criminal Act (ACCA). The Court in
    Chambers did not discuss whether escape from custody crimes qualify as violent
    felonies under the ACCA, but did state that "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." 
    Id. at 691.
    Following Chambers, we reaffirmed that "escape from a penal institution or the
    custody of an employee of a penal institution" is a violent felony. United States v.
    Pearson, 
    553 F.3d 1183
    , 1185 (8th Cir. 2009). Pearson did not consider, however,
    whether a walkaway escape is a violent felony under Chambers and Begay v. United
    States, 
    128 S. Ct. 1581
    (2008). That question remains undecided. United States v.
    Parks, 
    561 F.3d 795
    , 798 (8th Cir. 2009). We cannot make that determination based
    on the limited factual record before us, the record not presently clear whether Mills'
    escape conviction was a walkaway escape or in fact an "escape from a penal
    institution." 
    Pearson, 553 F.3d at 1185
    .
    Accordingly, we remand Mills' case to the district court for resentencing, and
    direct the court to analyze his escape conviction in light of Chambers and Begay. The
    district court is instructed to apply a modified categorical approach to determine
    whether Mills' escape conviction was a crime of violence under § 4B1.2. 
    Pearson, 553 F.3d at 1186
    (under a modified categorical approach, "a court may refer to the
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    charging document, the terms of the plea agreement, jury instructions, or comparable
    judicial records to determine" whether the offense was a crime of violence).
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