Argued and Submitted October 8, 2014, University of Hawaii William S. Richardson School of Law, Honolulu, Hawaii
Appeal from the United States District Court for the District of Hawaii. DC No. 1:10 cr-0789 JMS. J. Michael Seabright, District Judge, Presiding.
VACATED and REMANDED.
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, 186 L.Ed.2d 438 (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 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).
Peter C. Wolff, Jr. (argued), Federal Public Defender, Honolulu, Hawaii, for defendant-appellant.
Florence T. Nakakuni, United States Attorney, Jonathan M. F. Loo (argued), Assistant U.S. Attorney, Honolulu, Hawaii, for plaintiff-appellee.
Before: A. Wallace Tashima, Johnnie B. Rawlinson, and Richard R. Clifton, Circuit Judges.
TASHIMA, Circuit Judge:
Appellant Jordan Simmons (" Simmons" ) appeals from the judgment of the district court sentencing him to 168 months' imprisonment. He contends that the district court erred in sentencing him as a career offender because it erroneously concluded that his prior conviction for second degree escape in violation of Hawaii Revised Statutes § 710-1021 was a " crime of violence" as that term is defined by U.S. Sentencing Guidelines (" Sentencing Guidelines" or " U.S.S.G." ) § 4B1.1(a). We agree. We therefore vacate Simmons' sentence and remand for resentencing.
Simmons pleaded guilty, without a plea agreement, to six drug and firearm offenses. He was sentenced to 204 months' imprisonment, followed by four years of supervised release. Simmons' sentence was based, in part, on the district court's determination that Simmons was a " career offender" under U.S.S.G. § 4B1.1(a). Application of the career offender guidelines raised Simmons' criminal history category
from category III to category VI, which increased his advisory Guidelines sentencing range from 135--168 months' imprisonment to 188--235 months' imprisonment.
U.S.S.G. § 4B1.1 provides, in relevant part, that " [a] defendant is a career offender if . . . the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). Simmons had previously been convicted in Hawaii state court of one count of second degree assault, in violation of Hawaii Revised Statutes § 707-711, and one count of second degree escape, in violation of Hawaii Revised Statutes § 710-1021. The district court concluded that both prior convictions were " crimes of violence" under ...