Chambers v. United States - Brief (Merits)

No. 06-11206

 

In the Supreme Court of the United States

DEONDERY CHAMBERS, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

GREGORY G. GARRE
Solicitor General
Counsel of Record
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
J. CAM BARKER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether petitioner's conviction for escape, based on his knowing failure to report to a penal institution after his conviction for a felony, qualifies as a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. 924(e), because it "involves conduct that presents a serious po tential risk of physical injury to another."

 

 

In the Supreme Court of the United States

No. 06-11206

DEONDERY CHAMBERS, PETITIONER

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

 

 

 

 

OPINION BELOW

The opinion of the court of appeals (J.A. 90-95) is reported at 473 F.3d 724.

JURISDICTION

The judgment of the court of appeals was entered on January 9, 2007. A petition for rehearing was denied on February 16, 2007 (J.A. 96-97). The petition for a writ of certiorari was filed on May 8, 2007, and was granted on April 21, 2008. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are reprinted in an appendix to this brief. App., infra, 1a-3a.

STATEMENT

Petitioner pleaded guilty in the United States Dis trict Court for the Southern District of Illinois to pos sessing a firearm after having been convicted of a fel ony, in violation of 18 U.S.C. 922(g)(1). He had prior convictions for robbery and aggravated battery, distrib uting cocaine near public housing, and escape by know ingly failing to report to a penal institution after convic tion for a felony. The district court determined that those prior convictions, including the conviction for failure-to-report escape, qualified as "violent felon[ies]" or "serious drug offense[s]" under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e), and thus required a mandatory minimum 15-year sentence. The court sentenced petitioner to 188 months of imprison ment. The court of appeals affirmed. J.A. 52, 84-85, 90- 95, 110-115.

1. Section 922(g)(1) of Title 18, United States Code, makes it unlawful for a person who has been convicted of a felony to possess a firearm. Violation of that prohi bition ordinarily carries a maximum term of imprison ment of ten years. 18 U.S.C. 924(a)(2). The ACCA, as amended in 1986, provides a 15-year mandatory mini mum sentence for persons convicted of violating Section 922(g)(1) who have three prior convictions "for a violent felony or a serious drug offense." 18 U.S.C. 924(e)(1). The ACCA defines a "violent felony" to include "any crime punishable by imprisonment for a term exceeding one year" that:

(i) has as an element the use, attempted use, or threatened use of physical force against the per son of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical in jury to another.

18 U.S.C. 924(e)(2)(B).

2. In May 2005, after petitioner and a neighborhood resident exchanged heated words, petitioner drove to his home, got a handgun, loaded it, and returned to the scene of the fight. When he met his adversary there, petitioner pulled out his gun and fired into the air. Peti tioner then fled in a car driven by his girlfriend. Police officers tried to stop the fleeing car by positioning a squad car in its path, but petitioner instructed his girl friend to swerve around the police car and to keep going. The pursuit continued at speeds of up to 80 miles per hour. In the course of the high-speed chase, petitioner threw his gun out of the car window onto the lawn of a residence. The gun was loaded with three rounds of live ammunition. Petitioner was later arrested and detained without bond. He pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1). J.A. 3, 27- 29, 30, 32, 35, 40-42, 100-103.

3. At sentencing, it was undisputed that petitioner had two prior convictions for a violent felony or serious drug offense: (1) a conviction for robbery and aggra vated battery and (2) a conviction for distributing co caine near public housing. It was also undisputed that petitioner had a prior felony conviction under the Illinois escape statute. Petitioner disputed, however, whether that conviction qualified as a "violent felony" under the ACCA. J.A. 110-115, 135-136.

The Illinois escape statute creates several offenses, which vary in severity depending on the nature of the violation and the underlying charges. The subsection of the statute that is relevant here creates two offenses, escape from a penal institution or direct custody, which is a Class 2 felony, and escape involving the failure to report or return to penal institution, which is a Class 3 felony:

A person convicted of a felony or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 fel ony; however, a person convicted of a felony who knowingly fails to report to a penal institution or to report for periodic imprisonment at any time or knowingly fails to return from furlough or from work and day release or who knowingly fails to abide by the terms of home confinement is guilty of a Class 3 felony.

720 Ill. Comp. Stat. 5/31-6(a). Petitioner had been con victed of the "class 3 felony" of "knowingly fail[ing] to report * * * to * * * a penal institution" following conviction of a felony. J.A. 67. That offense is punish able by up to five years of imprisonment. 730 Ill. Comp. Stat. 5/5-5-3(b), 5/5-8-1(a)(6).1

The district court determined that petitioner's fail ure-to-report escape qualified as a "violent felony" based on United States v. Bryant, 310 F.3d 550 (7th Cir. 2002). J.A. 52. Bryant held that the federal crime of escape, 18 U.S.C. 751, which includes failure to return to custody after an authorized release, 18 U.S.C. 4082(a), is a "crime of violence" under Sentencing Guidelines § 4B1.2(a) because it "involves conduct that presents a serious potential risk of physical injury to another." 310 F.3d at 553-554. Courts of appeals, including the Sev enth Circuit, have interpreted the ACCA's "violent fel ony" provision to have the same meaning as the Guide lines "crime of violence" provision because the two pro visions have materially identical language. See, e.g., United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008), petition for cert. pending, No. 07-1024 (filed Mar. 31, 2008).

Bryant rejected the argument that a court should assess a particular defendant's manner of committing the escape, which, in that case, was failing to return to a halfway house after work release. 310 F.3d at 552-554. The Bryant court concluded that "every escape scenario is a powder keg, which may or may not explode into vio lence and result in physical injury to someone at any given time, but which always has the serious potential to do so." Id. at 553 (brackets omitted) (quoting United States v. Franklin, 302 F.3d 722, 724 (7th Cir.), cert. denied, 537 U.S. 1095 (2002), and United States v. Gos ling, 39 F.3d 1140, 1142 (10th Cir. 1994)).

Because petitioner had three prior convictions for a violent felony or serious drug offense, the district court concluded that he was subject to the ACCA's 15-year mandatory minimum. See J.A. 52, 54, 128. Applying the advisory Sentencing Guidelines, the court sentenced petitioner to 188 months of imprisonment, to be followed by five years of supervised release. J.A. 60.

4. The court of appeals affirmed petitioner's sen tence, rejecting his argument that failure-to-report es cape is not a "violent felony" under the ACCA. J.A. 90- 95. Relying on its prior decision in United States v. Golden, 466 F.3d 612 (7th Cir. 2006), petition for cert. pending, No. 06-10751 (filed Apr. 9, 2007), the court held that failing to report for custody, like escaping from cus tody, "involves conduct that presents a serious potential risk of physical injury to another." J.A. 91. Golden held that a conviction under Wisconsin law for failing to re port to jail, Wis. Stat. Ann. § 946.425(1m)(b) (West 2005), qualifies as a "violent felony" under the ACCA. 466 F.3d at 615. The court concluded that the risk that failure to report for custody will lead to physical injury is essentially the same as the risk that direct escape from custody will have that result. See id. at 614. The court explained that, in both cases, law enforcement offi cers will attempt to capture the fugitive, a convicted offender who knows that the future holds only incarcera tion. Ibid. Thus, the court reasoned, both offenses cre ate the same potential for a violent confrontation be tween the offender and law enforcement officials at tempting to recapture him. Ibid.

In this case, the court of appeals expressed regret that it did not have statistics conclusively establishing the frequency of violence in failure-to-report escapes. J.A. 93-95. But the court noted that Golden had square ly held that failure-to-report escape is a "violent felony" under the ACCA and that "[t]he other courts of ap peals," except the District of Columbia Circuit-which had reserved the issue-and the Ninth Circuit, were "in accord." J.A. 91-92 (citing cases).2 The court of appeals therefore held that petitioner was subject to an en hanced sentence under the ACCA. J.A. 93.3

SUMMARY OF ARGUMENT

Petitioner's conviction for escape by knowingly fail ing to report to a penal institution is a "violent felony" under the Armed Career Criminal Act of 1984 (ACCA) because it "involves conduct that presents a serious po tential risk of physical injury to another." 18 U.S.C. 924(e)(2)(B)(ii).

A. Like attempted burglary, which was held to be a "violent felony" in James v. United States, 127 S. Ct. 1586 (2007), failure-to-report escape creates a risk of injury comparable in degree to the risk created by the ACCA enumerated offense of burglary. Just as bur glary creates the risk of a violent confrontation between the burglar and someone who comes to investigate, failure-to-report escape creates the risk of a violent con frontation between the escapee and law enforcement officers seeking to recapture him.

Law enforcement agencies make vigorous efforts to recapture prisoners who fail to report, and those efforts have a serious potential to become violent. A felon who has refused to submit to custody is likely to possess a volatile state of mind that may cause him to react vio lently to police officers and others who confront him. The potential dangerousness of such a confrontation is heightened by the fact that the escapee knows that the future holds only incarceration, which he has already found intolerable. Moreover, failure-to-report escapees are, by definition, recidivist felons, and they often have serious criminal records, including convictions for vio lent crimes. Petitioner, who has prior convictions for robbery, aggravated battery, and cocaine distribution, well illustrates this concern.

B. Failure-to-report escape also satisfies the addi tional requirement for qualification as a "violent felony" that this Court recognized in Begay v. United States, 128 S. Ct. 1581 (2008). It is similar "in kind" to the enu merated crimes because it is "purposeful, violent, and aggressive" in the same way as burglary. Id. at 1585- 1586.

Failure-to-report escape is purposeful like burglary because it requires a mental state of knowledge or in tent. There is no sound reason to exclude knowing viola tions from the ACCA's scope. At least two enumerated offenses require only a mens rea of knowledge, as do numerous crimes that are obviously "violent felonies," such as knowingly using a chemical weapon, 18 U.S.C. 229, and knowingly derailing a train, 18 U.S.C. 1992. Failure-to-report escape is also violent and aggressive in the same way as burglary. Commission of the offense demonstrates that the offender is willing to risk a closely-related, violent confrontation in which law en forcement officers or others could be injured.

Contrary to petitioner's claim, failure-to-report es cape involves far more than "doing nothing." Br. 14.

The escapee must make a conscious decision to disobey a legal obligation to report for custody and to achieve a result-his absence from prison-that contravenes that legal duty. Inaction in the face of a duty is an act and one that can result in many violent crimes, including arson and burglary. The deliberate nature of the of fense conduct and its creation of a clear risk of a violent result make failure-to-report escape purposeful, violent, and aggressive for purposes of the ACCA.

C. Petitioner contends that courts may not consider potential violence or injury unless it would occur "dur ing the commission of the offense," Br. 23, which in his view excludes violence during recapture. But that con tention ignores the fact that several enumerated of fenses are classified as "violent felonies" because of vio lence that would occur only after commission of the of fense. A prohibition on considering post-offense vio lence has no support in the ACCA's text and would frus trate its purpose.

Even if there were a requirement that the violence risked by an offense must occur while the offense is on going, potential violence during recapture would satisfy that test. Failure-to-report escape is a continuing of fense. Because the offense is not complete until the es capee returns to custody, violence during recapture oc curs during commission of the offense.

Moreover, the risk of violence during recapture is qualitatively greater than the risk of violence in seeking to apprehend ordinary felons. A person who has failed to report to prison has demonstrated an unwillingness to submit to custody; authorities will virtually always at tempt to recapture him; and, because he is a recidivist who often has a serious criminal record, he poses a greater danger than an ordinary criminal suspect.

D. The ACCA's "otherwise" clause cannot be limited to "property crimes." Even under petitioner's defini tion, at least two of the enumerated offenses-extortion and crimes involving the use of explosives-are not "property crimes." In addition, status as a "property crime" is irrelevant to the ACCA's purpose of identify ing offenses that make it more likely that the offender would willingly harm others to achieve his goals. Nor is a "property crimes" limitation supported by the ACCA's legislative history or necessary to avoid rendering the ACCA's first clause superfluous.

Although petitioner claims that a "property crimes" requirement is necessary to avoid purported constitu tional problems with the serious-risk inquiry mandated by the ACCA, the constitutional concerns identified by petitioner do not exist. The exercise of judicial judg ment to determine whether conduct presents a serious risk of causing harm is a familiar aspect of statutory construction, and the serious-risk inquiry is not more difficult to apply here than in James or in other con texts.

E. Finally, the rule of lenity does not apply here. Petitioner does not identify any language in the ACCA that is ambiguous. Instead, he disagrees with the court of appeals' conclusion that a convicted felon's deliberate failure to report to prison creates a "serious potential risk of physical injury to another." That standard, al though it sometimes requires close examination and comparison of particular offenses, is not ambiguous. And failure-to-report escape clearly satisfies it.

ARGUMENT

PETITIONER'S CONVICTION FOR ESCAPE BY KNOW INGLY FAILING TO REPORT TO A PENAL INSTITUTION QUALIFIES AS A "VIOLENT FELONY" UNDER THE ARMED CAREER CRIMINAL ACT

The Armed Career Criminal Act of 1984, 18 U.S.C. 924(e), defines a "violent felony" to include "any crime punishable by imprisonment for a term exceeding one year" that "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another," or "(ii) is burglary, arson, or extortion, in volves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. 924(e)(2)(B). Petitioner's convic tion for knowingly failing to report to a penal institution (failure-to-report escape), in violation of 720 Ill. Comp. Stat. 5/31-6(a), qualifies as a "violent felony" under that definition because it "otherwise involves conduct that presents a serious potential risk of physical injury to another."

To qualify under that residual clause, an offense must satisfy a two-part test: First, it must create a po tential risk of physical injury to others that is "serious." That requirement means that the offense must create a risk comparable in degree to the risk created by one of the specifically enumerated crimes-burglary, arson, extortion, or crimes involving the use of explosives. See James v. United States, 127 S. Ct. 1586, 1594, 1596-1598 (2007). Second, the offense must be similar in kind to the enumerated crimes. That requirement means that it must be "purposeful, violent, and aggressive" in the way that the enumerated crimes share those character istics. See Begay v. United States, 128 S. Ct. 1581, 1585- 1588 (2008). Failure-to-report escape satisfies both parts of that test because it creates a potential risk of injury to others that is comparable in both degree and kind to the risk created by burglary.

A. Failure-To-Report Escape Presents A Serious Potential Risk Of Physical Injury To Others Comparable To The Risk Posed By Burglary

In James, this Court held that an offense presents a "serious" potential risk of physical injury to another if the risk of injury that it creates is comparable in degree to the risk posed by one of the enumerated offenses. See 127 S. Ct. at 1594, 1597-1598 (stating that the enu merated offenses provide "a baseline against which to measure the degree of risk that a non-enumerated of fense must 'otherwise' present in order to qualify"). In determining whether the risk posed by a crime is com parable in degree to the risk created by an enumerated offense, the Court follows a "categorical approach." Id. at 1593. The Court considers the crime generically, measured by the legal definition of the offense rather than how it was committed on a particular occasion. Id. at 1593-1594. The categorical approach does not require that every factual scenario encompassed by the offense present the requisite risk of injury. Id. at 1597. In stead, the Court examines "the conduct encompassed by the elements of the offense, in the ordinary case." Ibid.

The Court in James concluded that the potential risk of physical injury presented by attempted burglary is comparable in degree to the risk posed by the enumer ated offense of burglary. The Court noted that "[t]he main risk of burglary arises not from the simple physical act of wrongfully entering onto another's property, but rather from the possibility of a face-to-face confronta tion between the burglar and a third party-whether an occupant, a police officer, or a bystander-who comes to investigate." James, 127 S. Ct. at 1594. Attempted bur glary, the Court held, creates a similar "risk of violent confrontation." Id. at 1595. Considering both the likeli hood of confrontation and the likelihood that any con frontation will result in injury, the Court concluded that the risk posed by attempted burglary is similar in de gree to the risk posed by burglary. Id. at 1599.

Failure-to-report escape likewise presents a poten tial risk of physical injury to others that is at least com parable in degree to burglary. Like burglary, failure-to- report escape creates a serious risk of a violent confron tation between the offender and others, because law enforcement officers are likely to pursue and attempt to recapture the escapee, who has already demonstrated a willingness to disobey a legal command to submit to cus tody.

1. A convicted felon's failure to report to prison creates a serious potential risk of a confrontation with law enforcement officers seeking to recapture him

An offender commits failure-to-report escape if he "knowingly fails to report to a penal institution" follow ing conviction of a felony. See 720 Ill. Comp. Stat. 5/31-6(a). That conduct creates a serious risk of a con frontation between the offender and others because the offender's absence from prison triggers efforts by law enforcement to recapture him. United States v. Thomas, 361 F.3d 653, 660 (D.C. Cir. 2004) (noting that "escape invites pursuit; and the pursuit, confrontation") (quoting United States v. Jackson, 301 F.3d 59, 63 (2d Cir. 2002)), vacated and remanded on other grounds, 543 U.S. 111 (2005), reaffirmed in relevant part by United States v. Cook, 161 Fed. Appx. 7 (D.C. Cir.), cert. denied, 546 U.S. 913 (2005). That risk of confrontation is compa rable to the risk of confrontation between a burglar and the occupants of the burgled premises or the police. Indeed, the risk of a confrontation between a failure-to- report escapee and law enforcement officers seeking to recapture him is likely higher than the risk of a confron tation between a burglar and others. A burglar gener ally goes out of his way to ensure that his offense goes undetected, casing the premises and breaking in only when he is confident that the occupants are not present. Prison officials, in contrast, know immediately when an offender fails to report for confinement, and they gener ally take prompt action to return him to custody.

The United States Marshals Service informs us that it assigns a law enforcement officer to seek to capture all criminals who fail to report to prison. Accord General Accounting Office, Federal Law Enforcement: Informa tion on Use of Investigation and Arrest Statistics 46 (2004) (explaining that the Marshals Service attempts to locate and arrest federal fugitives who have escaped from custody or failed to make a required appearance). State law enforcement officials also make vigorous ef forts to recapture offenders who fail to report or to re turn to prison. See, e.g., New York Dep't of Corr. Servs., Temporary Release Program: 2007 Annual Re port 3 (2007) (stating that prison officials are "commit ted to apprehending absconders [from temporary re lease] as quickly as possible"); California Dep't of Corr. & Rehab., Annual Escape Report: Calendar Year 2007 at 10 (2008) (indicating that the average recapture rate for all escapees over the past 30 years has been 99.1%); New York Dep't of Corr. Servs., Comparison of Tempo rary Release Absconders and Non-Absconders: 1993- 1994 at v (1995) (N.Y. Absconder Report) (observing that "[m]ost inmates [who absconded from temporary release] were returned to the Department involun tarily").

Nationwide data indicate that approximately 75% of all escapees are recaptured. Richard F. Culp, Fre quency and Characteristics of Prison Escapes in the United States: An Analysis of National Data, 85 Prison J. 270, 282 (2005). The recapture rate for absconders from work release programs is 70%. Ibid. The fact that the federal government and the States take action to recapture all escapees, including those who fail to return to prison, is not surprising considering that the United States, the District of Columbia, and at least 36 States deem failure to return to be a form of escape or punish it as severely.4

Law enforcement officials have good reasons for their forceful efforts to recapture failure-to-report es capees. Like other escapees, failure-to-report escapees frequently have serious criminal records. For example, in the federal system, approximately 72% of all defen dants convicted of failure-to-return escape (18 U.S.C. 4082(a)) between 2003 and 2007 had a criminal history score in the top three categories of the Sentencing Guidelines. See App., infra, 4a. Approximately 52% had a criminal history score in the top two categories, and 35% were in the highest category. See ibid.

Statistics from the States also indicate that non-cus todial escapees frequently have serious criminal records, including convictions for violent crimes. See App., infra, 5a (76% of Florida prisoners who escaped while on work release between July 1, 2003, and June 25, 2008, were serving time for violent crimes); id. at 6a (77% of Massa chusetts prisoners who failed to return from work re lease or other unsupervised activities from January 1, 2003, to June 30, 2008, were serving sentences for vio lent crimes); id. at 7a-8a (47% of North Carolina prison

ers who failed to return from work release, home leave, community volunteering, or other outside activities from January 1, 2003, to June 30, 2008, were serving sen tences for violent crimes); id. at 9a-10a (77% of Pennsyl vania failure-to-return escapees from January 1, 2003, to June 24, 2008, were serving sentences for violent crimes); id. at 11a (60% of Washington prisoners who failed to return from work release from January 1, 2003, to July 23, 2008, were serving sentences for violent crimes).5 Moreover, anyone convicted for failure-to-re port escape in Illinois has, by definition, previously com mitted a felony offense. See 720 Ill. Comp. Stat. 5/31-6(a). Petitioner, for example, was serving time for robbery and aggravated battery. J.A. 12-13, 110, 113.

There is thus no support for petitioner's assertion that "it is far less urgent" for law enforcement to pursue escapees who fail to report for imprisonment than those who escape directly from custody. Br. 25. On the contrary, as the courts of appeals have recognized, any escape, no matter what kind, is a serious matter that warrants prompt recapture efforts by law enforce ment. See, e.g., United States v. Mathias, 482 F.3d 743, 748 (4th Cir. 2007), petition for cert. pending, No. 07-61 (filed July 2, 2007); United States v. Franklin, 302 F.3d 722, 724 (7th Cir.), cert. denied, 537 U.S. 1095 (2002).

2. A confrontation between an escapee and law enforce ment officers seeking to recapture him has a serious potential to become violent

Efforts to recapture failure-to-report escapees pose a serious potential risk of becoming violent. "[J]ust as the cautious burglar may be startled by the unexpected return of the homeowner," a failure-to-report "escapee may suddenly be confronted by police officers sent to apprehend him, leading to injury to the officers or by standers." Thomas, 361 F.3d at 660. In the same way that a burglar's nervousness about being in a confined, foreign environment may lead him to react violently upon confrontation, a convicted felon who has refused to submit to lawfully imposed custody is likely to experi ence a number of supercharged emotions that may cause him to feel threatened by those who confront him and therefore to resort to violence. See United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994) ("[E]very escape scenario is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so.").

A failure-to-report escapee is particularly likely to use violence to resist recapture because he knows that, if he is recaptured, incarceration is a certainty. United States v. Golden, 466 F.3d 612, 614 (7th Cir. 2006), peti tion for cert. pending, No. 06-10751 (filed Apr. 9, 2007). His deliberate failure to report to prison demonstrates that he finds the incarceration that awaits him to be in tolerable. Criminals in that situation "are unlikely to calmly succumb to recapture efforts." Mathias, 482 F.3d at 748. Moreover, as described above, failure-to-report escapees generally have serious and violent crim inal histories, as petitioner's criminal history well illus trates. And, in Illinois, every failure-to-report escapee is necessarily not only a felon but (by virtue of his es cape) a recidivist, characteristics that are indicative of dangerousness. See 720 Ill. Comp. Stat. 5/31-6(a); United States v. Rodriquez, 128 S. Ct. 1783, 1789 (2008); Caron v. United States, 524 U.S. 308, 312, 315 (1998).

The risk of violence is further increased because law enforcement officers know of the fugitive's demon strated hostility to custody and are prepared to protect themselves. Unlike homeowners, who are frequently un armed when they confront a burglar, law enforcement officers typically carry firearms. And they necessarily seek to apprehend the escapee, while homeowners may only try to drive the burglar away from the property.

Because recapture efforts present a significant po tential for violence, "hair-raising recovery efforts by law enforcement officers [are] far from unusual." Mathias, 482 F.3d at 748 (citing examples). Case law and newspa pers alike contain descriptions of violent confrontations between failure-to-report escapees and law enforcement officers seeking to recapture them. See, e.g., United States v. Eaglin, 571 F.2d 1069 (9th Cir. 1977) (fugitive who failed to return from temporary release shot at po lice officers who surrounded his apartment during un successful recapture attempt), cert. denied, 435 U.S. 906 (1978); State v. Johnson, 245 S.W.3d 288 (Mo. Ct. App. 2008) (fugitive who failed to report to jail shot at police after leading them on high-speed chase); State v. Jones, 979 P.2d 898 (Wash. Ct. App. 1999) (same); West v. State, 923 P.2d 110 (Alaska Ct. App. 1996) (fugitive who failed to report to prison blew up his hideout after standoff with state troopers); Alan J. Keays, Man in Plea Deal on Several Charges, Rutland Herald, Dec. 17, 2007, (law enforcement officers and failure-to-return escapee engaged in armed standoff); Joshua Palmer, Nowhere to Run-Four Agencies Corner Convicted Sex Offender, Times-News, Sept. 14, 2006 (failure-to-report escapee brandished gun and engaged in two-hour stand off when law enforcement sought to recapture him); Vic tim of Police Shooting at Store Was a Fugitive, San Jose Mercury News, Feb. 15, 2001, at 2B (police encoun ter with failure-to-report escapee led to gunfire); Woman Who Fled With Fugitive Receives Suspended Sentence, Portland Press Herald, Feb. 2, 2001, at 2B (statewide manhunt for failure-to-report escapee culmi nated in deadly recapture attempt).

Despite this evidence of the serious potential risk that recapture efforts will lead to violence, petitioner argues (Br. 26-27) that violence is unlikely. He contends that, because a failure-to-report escapee necessarily enjoyed some limited freedom to move about the com munity, a public official must have made a determination that the escapee does not present a significant danger. That argument is fundamentally flawed because any determination that the offender was not considered dan gerous enough to warrant secure confinement was made before his escape. The escapee's deliberate decision to disobey the law and evade custody alters significantly the assessment whether he is likely to use force to resist recapture. Cf., e.g., N.Y. Absconder Report 2 (stating that inmates who have committed "abscondence [or] es cape" may not further participate in temporary release programs); Va. Code Ann. § 53.1-131(A) (2005) (provid ing that an offender who exceeds the limits of work re lease "shall be ineligible for further participation in a work release program during his current term of con finement").

3. Statistical data is not necessary to demonstrate the existence of a serious potential risk of physical in jury to others

Petitioner also argues (Br. 42) that the Court cannot conclude that failure-to-report escape presents a serious potential risk of injury because there is no hard statisti cal data documenting the magnitude of the risk. That argument is untenable in light of James, in which the Court held that attempted burglary presents the necessary risk despite the absence of "hard statistics." James, 127 S. Ct. at 1598. Indeed, even the dissent in James, which disagreed with the Court's evaluation of the risk presented by attempted burglary, acknowl edged that, under the ACCA, courts must decide, "with out hard statistics to guide them, * * * the degree of risk of physical injury posed by various crimes." Id. at 1608 (Scalia, J., dissenting) (internal quotation marks omitted).

Petitioner cites no evidence that Congress intended the decision whether an offense presents a serious risk to depend on statistical analysis, rather than judicial judgment based on experience and common sense. In deed, because hard statistical evidence about that risk is seldom available, almost no crimes would qualify as "violent felonies" under the ACCA's residual clause if hard statistical evidence were required. It is difficult to imagine that Congress intended that result when it in cluded that "broad residual provision." James, 127 S. Ct. at 1592.

B. Failure-To-Report Escape Is Purposeful, Violent, And Aggressive In The Same Way As Burglary

Failure-to-report escape also satisfies the second requirement for qualification as a "violent felony" under the ACCA's residual clause. In Begay, the Court con cluded that the presence of the four enumerated of fenses, coupled with the use of the word "otherwise," indicates that the residual clause covers only "crimes that are roughly similar, in kind as well as in degree of risk posed," to the listed offenses. 128 S. Ct. at 1585. To qualify as similar in kind, a crime must, like the enumer ated offenses, involve "purposeful, violent, and aggres sive" conduct. Id. at 1586. That similarity among the listed offenses is "pertinent," the Court reasoned, be cause it relates to the ACCA's "basic purpose[]": identi fying prior crimes the commission of which makes it more likely that the offender, later possessing a gun, would use the gun to harm others. Id. at 1586-1587.6

The Court held that the New Mexico offense of re peatedly driving under the influence of alcohol (DUI) does not involve purposeful, violent, and aggressive con duct because "the offender need not have had any crimi nal intent at all." Begay, 128 S. Ct. at 1586-1587. For that reason, unlike the enumerated offenses of burglary and arson, which involve "intentional or purposeful con duct," a conviction for DUI does not show an increased likelihood that the offender is the kind of person who might deliberately harm others. Id. at 1587.

In contrast to DUI, failure-to-report escape involves conduct that is purposeful, violent, and aggressive in the same way as burglary. Failure-to-report escape is purposeful like burglary because it requires a mental state of intent or knowledge. And failure-to-report escape is violent and aggressive like burglary because the of fender's failure to report for imprisonment creates the risk of a closely related, violent confrontation. The of fender's deliberate decision not to report to prison, de spite the clear risk of a resulting confrontation in which others are injured, makes it more likely that he would be willing to harm others to carry out his plans.

1. Failure-to-report escape is purposeful because the offender acts knowingly or intentionally

Unlike the strict-liability offense in Begay, failure-to- report escape is a purposeful crime because it requires a mental state of knowledge or intent. See 720 Ill. Comp. Stat. 5/31-6(a). Knowledge and intent are the most culpable mental states under Illinois criminal law. See id. 5/4-4, 5/4-5. They are only subtly different: a person acts "knowingly" if he is aware that his conduct is practically certain to cause a proscribed result, where as a person acts "intentionally" if he affirmatively de sires that result. Compare id. 5/4-5 with id. 5/4-4. As this Court has explained, that distinction is not impor tant in most crimes because "there is good reason for imposing liability whether the defendant desired or merely knew of the practical certainty of the results." United States v. Bailey, 444 U.S. 394, 404 (1980) (cita tion omitted).

Petitioner suggests (Br. 15) that failure-to-report escape does not satisfy Begay's "purposeful" require ment because the crime can be committed knowingly as well as intentionally. But there is no sound reason for excluding knowing violations from the scope of the ACCA's residual clause. The distinction between intent and knowledge is irrelevant to the ACCA's purpose be cause both mental states evince a deliberate decision to cause a prohibited result. For example, the arsonist who sets a fire knowing that a building will burn-what ever his purpose may have been-has willingly created a risk of injury to others. That deliberate decision is what increases the probability that the offender, if he later possessed a gun, would use it to harm others. Peti tioner does not identify any court of appeals that has held that knowing offenses are not "purposeful" under Begay, nor are we aware of any. At least one court of appeals has held to the contrary. See United States v. Williams, 529 F.3d 1, 3, 7 (1st Cir. 2008).

A requirement that a crime be committed with the mens rea of intent to qualify as a "violent felony" cannot be reconciled with the enumerated crimes. Congress presumably intended the federal arson offense, 18 U.S.C. 81, to qualify as "arson" under the ACCA, but the federal offense may be committed with a mens rea of knowledge. United States v. Doe, 136 F.3d 631, 635-636 (9th Cir. 1998), cert. denied, 526 U.S. 1041 (1999); Uni ted States v. M.W., 890 F.2d 239, 240-241 (10th Cir. 1989). In addition, several federal statutes involving the use of explosives do not require the offender to act with intent. See, e.g., 18 U.S.C. 1992(a)(2) (knowingly placing a destructive device on a mass transportation vehicle with reckless disregard for the safety of human life).

Moreover, an intent requirement would exclude from coverage as "violent felonies" numerous offenses that clearly present a serious risk of physical injury to others and indicate an increased likelihood that the offender would be willing to harm others to achieve his plans. For example, jail-break escape under federal law and the law of many States requires only a mens rea of knowledge,7 and, in several more States, the offense may be committed with a mens rea of recklessness.8 Other crimes that would not qualify as "violent felonies" in clude knowingly using a chemical weapon, 18 U.S.C. 229, and knowingly derailing a train, 18 U.S.C. 1992. Con gress could not have intended to exclude those crimes from coverage under the ACCA.

In his effort to show that failure-to-report escape is not purposeful, petitioner suggests (Br. 14) that the of fense could be committed by a defendant who made ev ery effort to report on time but was inadvertently de layed by traffic while traveling to prison. That counter intuitive suggestion is not correct. The conduct that petitioner describes would not establish a "knowing" violation. Under Illinois law, a person acts with knowl edge of a prohibited result only "when he is consciously aware that such result is practically certain to be caused by his conduct." 720 Ill. Comp. Stat. 5/4-5(b). In petitioner's example, the hapless traveler never acts or de cides not to act while aware that his decision will cause him to be late to prison. Indeed, because the hypotheti cal defendant has made reasonable efforts to report on time, his failure to report would not even establish the less culpable mental states of "recklessness" or "negli gence" under Illinois law. See id. 5/4-6, 5/4-7. It neces sarily follows that the defendant would not satisfy the more demanding mental state of knowledge. See, e.g., People v. Higgins, 229 N.E.2d 161, 163 (Ill. Ct. App. 1967) ("[O]ffenses involving the mental state of 'intent' or 'knowledge' require[] a higher degree of mental cul pability than an offense involving the mental state of 'recklessness.'").

Petitioner is likewise incorrect in suggesting (Br. 14) that a defendant could commit failure-to-report escape by oversleeping. The failure-to-report statute would apply to a defendant who was asleep at the time he was required to report to prison only if he had earlier "con sciously" decided not to report. 720 Ill. Comp. Stat. 5/4- 5(b). It is that conscious decision to avoid an imposed term of imprisonment that makes failure-to-report es cape purposeful.

2. Failure-to-report escape is violent and aggressive because the offender deliberately commits the crime despite the clear risk of an ensuing violent confron tation

Failure-to-report escape is also "violent" and "ag gressive" within the meaning of Begay. An offense qual ifies as "violent" and "aggressive" if its commission in creases the likelihood that the offender would deliber ately harm others. See Begay, 128 S. Ct. at 1586. An of fense may indicate that inclination in one of two ways. First, an offense may indicate the offender's willingness to inflict injury because the offender knowingly unleash es a force that can directly cause harm to others. For example, a defendant commits the enumerated offense of arson by setting a fire, and a fire can spread quickly and injure others without subsequent human interven tion. Alternatively, an offense may indicate the offen der's willingness to inflict injury because the offender consciously commits the crime despite the clear risk that it will trigger a violent confrontation in which others may be harmed. The offender's deliberate commission of the crime despite the risk of a closely related, violent confrontation demonstrates his willingness to cause in jury to others to achieve his plans.

Burglary is violent and aggressive in the second way. Although the conduct involved in burglary does not in itself cause injury to others, it demonstrates that the of fender is willing to risk a closely related, violent con frontation in which law enforcement officers or others might be injured. The commission of burglary thus makes it more likely that the offender might deliber ately harm others.

Failure-to-report escape is violent and aggressive in the same way. A knowing failure to report to prison does not in itself cause any physical injury. But the of fense conduct, by its nature, creates a clear risk of a confrontation during recapture efforts in which law en forcement officers or bystanders may be injured. The offender's deliberate decision not to report to prison despite the risk of that closely related, violent confronta tion makes it more likely that he would willingly harm others.

3. Failure-to-report escape is not disqualified from be ing a "violent felony" merely because it involves the failure to comply with a legal duty

Petitioner contends (Br. 14-19) that failure-to-report escape cannot qualify as purposeful, violent, and aggres sive because it "involves doing nothing" (Br. 14) and is "committed by inaction" (Br. 19). That characterization of the offense is not accurate. It ignores the fact that the offender must knowingly achieve a result-his ab sence from prison-that contravenes his legal duty to submit to custody. See 720 Ill. Comp. Stat. 5/31-6(a). As discussed above, the "knowing" requirement means that the offender must make a conscious decision to fail to comply with his duty. See pp. 25-26, supra; 720 Ill. Comp. Stat. 5/4-5(b). Because he must make a conscious decision to achieve that result, his conduct is not fairly described as "doing nothing" or "inaction." Whether he takes a plane to the other side of the globe, hides out in a hotel room under an assumed name, or simply remains at home is irrelevant. Whatever means he uses to cause his absence from prison, the offender is deliberately acting in contravention of his legal duty to report.

That kind of deliberate failure to comply with a legal duty can be purposeful, violent, and aggressive. Crimi nal law considers the refusal to comply with a duty to act to be equally culpable as an affirmative act. See 1 Wayne R. LaFave, Substantive Criminal Law § 6.1, at 422 (2d ed. 2003) (LaFave); Model Penal Code § 2.01(1) (1985), reprinted in 3 LaFave App. 277. Many violent crimes-most obviously murder and manslaughter- may be committed by the failure to comply with a legal duty. See 2 LaFave § 14.1; id. § 15.4. Thus, a ship cap tain who deliberately decides to let a sailor drown or a railroad switchman who decides to allow two trains to collide, killing the passengers, by failing to switch one of the trains to another track commits criminal homicide. See 1 LaFave § 6.2(e), at 448 (noting that "one's failure to act to save someone toward whom he owes a duty to act is murder if he knows that failure to act will be cer tain or substantially certain to result in death or serious bodily injury"). Indeed, at least two of the enumerated offenses may be committed by the failure to comply with a legal duty. A defendant's failure to put out a fire that he accidentally started qualifies as arson if he intends to cause the building to burn down. See ibid. And bur glary may be committed by the failure to leave a build ing that one lacks permission to occupy. See Taylor v. United States, 495 U.S. 575, 598 (1990).

In all these situations, the deliberate nature of the offense conduct and its creation of a clear risk of ensuing violence make the crime purposeful, violent, and aggres sive. Failure-to-report escape is purposeful, violent, and aggressive for the same reasons.

C. Courts May Consider Potential Violence During Recap ture In Deciding Whether Failure-To-Report Escape Is A "Violent Felony"

Petitioner argues (Br. 19-24) that courts may not consider potential violence during recapture in deciding whether failure-to-report escape (or any escape, for that matter) qualifies as a "violent felony." That argument is unsound.

1. Whether the violence triggered by an offense occurs during commission of the offense itself or afterwards is irrelevant

Petitioner first contends (Br. 19-21, 23) that courts may not consider any potential violence or injury, no matter how closely related to the offense, unless it would occur "during the commission of the offense." Br. 23. That contention lacks any support in the either the text or the purposes of the ACCA.

Petitioner's contention cannot be squared with the ACCA's text because the injury risked by the enumer ated crimes often occurs after they are complete. In many crimes involving use of explosives, for example, any injury to others would occur only once the crimes have already been committed. See, e.g., 18 U.S.C. 2275 ("plac[ing]" bombs or explosives in or upon a vessel with intent to injure the vessel or persons on board); 18 U.S.C. 2332f(a) ("plac[ing]" or "attempt[ing]" to "place[], discharge[], or detonate[]" an explosive device in a public place). Similarly, arson is complete when a building has been set on fire or burned, see, e.g., 18 U.S.C. 81, but any injury to persons often occurs after wards when the fire spreads or creates a smoke hazard.

The same is true of the enumerated crimes that are violent and aggressive because the offender consciously commits them despite the risk of a closely related, vio lent confrontation. In most States, a defendant commits the crime of extortion by making a threat with the intent to acquire something of value. See James, 127 S. Ct. at 1604 (Scalia, J., dissenting) (citing 3 LaFave § 20.4(a), at 199); James Lindgren, Blackmail and Extortion in 1 Encyclopedia of Crime and Justice 102, 104 (2d ed. 2002) (Lindgren). That common, contemporary under standing of extortion presumably provides the definition of generic "extortion" under the ACCA. See Taylor, 495 U.S. at 592-598. And, under that definition, any injury to others would occur after the offense is complete, when the offender decides to carry out the threat that he has made. The potential violent confrontation in bur glary also may occur after the offense is complete. The conduct necessary to commit generic burglary is enter ing or remaining without permission in a building with intent to commit a crime. Id. at 598. A violent confron tation between the burglar and an occupant or police officer may often occur only after the defendant is no longer in the building. Indeed, when the Court assessed the risk posed by attempted burglary in James, it ex pressly considered the risk of violence in a confrontation occurring after the crime is completed. See 127 S. Ct. at 1599 (considering the risk of violence when an officer or homeowner pursues a would-be burglar following an attempted burglary).

A prohibition on considering injuries that occur after commission of the offense also has no support in the re maining text of the ACCA. As petitioner notes (Br. 20), the ACCA refers to the "conduct" "involve[d]" in the offense. 18 U.S.C. 924(e)(2)(B)(ii). But the ACCA does not require the offense conduct to involve "potential physical injury." Instead, it requires the conduct to in volve a "potential risk of physical injury." Ibid. Thus, the offense conduct need not itself entail potential injury but need only create a potential risk that injury will fol low. That conclusion is reinforced by the absence of any language requiring that the injury occur "in the course of committing the offense." Congress included that pre cise language when defining a "crime of violence" under 18 U.S.C. 16(b). Its decision not to include similar lan guage in the ACCA is fatal to petitioner's position.9

A prohibition on considering injuries occurring after commission of the offense also would not advance the ACCA's purpose. As petitioner acknowledges, that pur pose is to identify crimes that demonstrate that the of fender is willing to engage in conduct "where the risk of harm to others is consciously known." Br. 21. That goal is best served by taking into account all harm that may result from an offense so long as the offense conduct creates a clear risk that the harm will occur. Whether the harm will occur during commission of the offense itself or in its immediate aftermath reveals nothing about the offender's willingness to injure others. In deed, petitioner's proposed limitation would frustrate the ACCA's purpose. It would exclude an obviously vio lent crime like placing a biological toxin in a mass trans portation vehicle with the intent to endanger the safety of another person, 18 U.S.C. 1992(a)(2), because any injury to others would occur only after the toxin had been placed on the vehicle. That cannot be what Congress intended.

Contrary to petitioner's contention (Br. 21), consid ering violence that follows the offense is fully consistent with the statement in the government's brief in Begay that an offender's "subsequent volitional choice (only tangentially related to the offense . . . )" should not be considered in evaluating whether the offense indicates his willingness to harm others. U.S. Br. at 21, Begay (No. 06-11543). That unremarkable proposition con cerns post-offense conduct that is "only tangentially related to the offense." Ibid. It does not mean that courts may never consider harm caused by human con duct that occurs after the offense. If that were the case, burglary and extortion would not qualify as "violent felo nies," because neither results in injury absent volitional, violent conduct that takes place after the offense has been committed. The inclusion of burglary and extor tion as enumerated offenses makes clear that potential violent conduct following the offense may be considered, provided that the potential violence is "closely related" to the offense. United States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992) (Breyer, C.J.). And potential violence is "closely related" to the offense when-as with burglary, extortion, and failure-to-report escape-the offense con duct itself creates a clear risk that the violence will occur.

2. Because failure-to-report escape is a continuing of fense, any violence during recapture occurs during commission of the offense

Even if there were a requirement that the violence risked by an offense must occur while the offense is on going, potential violence during a recapture attempt would satisfy that test. Illinois-like the federal govern ment, the District of Columbia, and the overwhelming majority of States-treats failure-to-report escape as a continuing offense. People v. Miller, 509 N.E.2d 807, 809 (Ill. App. Ct. 1987); see Bailey, 444 U.S. at 413; United States v. Lancaster, 501 F.3d 673, 680 (6th Cir. 2007) (stating that only six States do not consider escape to be a continuing offense), petition for cert. pending, No. 07-7987 (filed Nov. 29, 2007); Craig v. United States, 551 A.2d 440, 440-441 (D.C. 1988). The conduct involved in failure-to-report escape thus includes not only the of fender's initial moment of absence but also his ongoing failure to return to custody. Ibid. Consequently, any violence that occurs during the attempt to recapture the escapee "occurs during the commission of the offense." Pet. Br. 23.

Petitioner argues (Br. 24) that courts still should not consider violence during recapture because the continu ing nature of failure-to-report escape does not change the minimum conduct necessary to satisfy the offense elements. Whether an offense is a "violent felony" does not, however, turn on the minimum conduct necessary to commit it. "Rather, the proper inquiry" focuses on the offense conduct "in the ordinary case." James, 127 S. Ct. at 1597. This Court has rejected the proposition that an offense is not violent because there are "unusual cases" in which it "might not present a genuine risk of injury." Ibid. It is difficult to think of a more "unusual" case than one in which the defendant commits only the minimum conduct necessary to satisfy the offense ele ments. Considering only that minimum conduct would not be consistent with the ACCA's text, which refers broadly to the "conduct" "involve[d]" in the offense, not the "minimum" or "essential" conduct. 18 U.S.C. 924(e)(2)(B)(ii). Nor would petitioner's proposed ap proach further the ACCA's purpose. Because most of fenders engage in significantly more than the minimum conduct necessary to commit the offense, considering only the risk presented by that conduct would not accu rately capture the risk posed by the typical offender.

Petitioner also suggests (Br. 24 & n.7) that whether escape is a continuing offense should not affect whether it is a "violent felony" because a crime's classification as continuing has nothing to do with the danger posed by the offender. That is incorrect. Failure-to-report es cape is classified as a continuing offense because "an escaped prisoner poses a continuing threat to society" during the entire period he remains at large. Miller, 509 N.E.2d at 808; see Bailey, 444 U.S. at 413. In other words, failure-to-report escape is a continuing offense precisely because of the risk that the offender may re sort to violence during recapture. It is therefore en tirely appropriate to consider that risk in deciding whe ther the crime qualifies as a "violent felony."

3. Considering potential violence during recapture would not lead to absurd results

Petitioner further contends (Br. 21-23) that classify ing failure-to-report escape as a "violent felony" based on the risk of violence during recapture would lead to absurd results. He argues that adopting that analysis would require the conclusion that every crime is a "vio lent felony," because every crime presents some risk of a violent confrontation during the offender's arrest. That argument is incorrect. The risk of violence during recapture establishes that failure-to-report escape is violent and aggressive because that risk is closely re lated to that specific offense. In contrast, the risk of violence that inheres in every arrest is generally not closely related to the crime for which the defendant is arrested. That is true for two reasons.

First, one commits failure-to-report escape by ab senting oneself from custody, which is the very obliga tion that law enforcement officers seek to impose through recapture. In contrast, the conduct involved in the ordinary crime does not include avoidance of cus tody. Because the offense conduct that constitutes es cape inherently involves avoidance of lawful custody, escape and recapture are related in a way that arrest and the typical crime are not.

Second, failure-to-report escape creates a clear risk that there will be a violent confrontation during an at tempted recapture, but not every crime creates a comparable risk that there will be a violent confrontation dur ing arrest. Both the risk of a confrontation and the risk that the confrontation will be violent are greater for failure-to-report escape than for ordinary offenses, such as the financial crimes identified by petitioner (Br. 22). The risk of a confrontation is greater because virtually every failure-to-report escape will generate an effort at recapture, while not every criminal offense will provoke an arrest (because many defendants voluntarily surren der). Moreover, unlike the ordinary criminal suspect, the escapee has already indicated both his willingness to defy the criminal justice system and his unwillingness to submit to custody. That means that the escapee is more likely to resist recapture than the typical suspect is to resist arrest. The risk that the escapee will use violence is also greater than the risk that the ordinary suspect will do so. As discussed above, failure-to-report escap ees are by definition recidivist felons, characteristics which suggest that they pose a greater danger than or dinary suspects, who have not yet been convicted of a crime. And failure-to-report escapees frequently have very serious criminal records, including convictions for violent crimes. Finally, escapees have more at stake and less to lose by resorting to violence, because they al ready know that incarceration is a certainty upon recap ture.

D. The ACCA's Residual Clause Is Not Limited To Property Crimes

Petitioner proposes (Br. 13, 27-41) that the Court interpret the ACCA's residual clause to contain an addi tional requirement for a crime to qualify as a "violent felony"-it must be a "property crime." That proposed interpretation is unfounded.

1. The enumerated offenses are not all "property crimes"

Petitioner does not identify anything in the text of the residual clause that refers to "property crimes" or suggests that the clause is limited to those offenses. Instead, he invokes (Br. 13) the canon of ejusdem gen eris and this Court's reasoning in Begay. He argues that a "property crimes" limitation is a necessary exten sion of this Court's ruling in Begay that offenses qualify ing under the residual clause must be similar in kind to the enumerated offenses, which petitioner asserts are all "property crimes." That argument fails at the outset because not all the enumerated offenses are "property crimes."

Petitioner proffers a multifaceted definition under which an offense qualifies as a "property crime" if the offender either (1) "physically * * * invade[s] prop erty," (2) attempts "to acquire property from another," or (3) releases a force "that necessarily would damage property." Br. 34. The only characteristic uniting those categories is that they each attempt to describe the enu merated offenses in a way that involves property. Even under petitioner's tailor-made definition, however, at least two enumerated offenses fail to qualify.

Crimes involving use of explosives are not property crimes even under petitioner's definition because they do not necessarily threaten to "damage property." Pet. Br. 34. For example, a violation of 18 U.S.C. 2332f(a), which criminalizes the unlawful detonation of an explo sive in a place of public use, need not "target[] prop erty." Pet. Br. 30. One can commit that offense by ex ploding a bomb in an open field and injuring only people. Explosives offenses are included in the ACCA not be cause they risk damaging property but because the unlawful use of explosives shows the offender's willingness to injure others. In a particular case, use of explosives may damage property that is nearby, but that does not mean that every offense involving use of explosives is a "property crime."

Extortion too is not a property crime, even under pe titioner's definition, because it does not necessarily re quire an attempt to obtain "property." The contempo rary understanding of extortion (which, as discussed above, controls under the ACCA) entails an effort to obtain "anything of value." 4 Charles E. Torcia, Whar ton's Criminal Law § 658, at 492-493 (1996); see Lind gren 102 (stating that extortion includes "obtaining pro perty" or "compelling any action against one's will"); Black's Law Dictionary 623 (8th ed. 2004) (defining statutory extortion as "obtaining something or compel ling some action" by force or coercion); James, 127 S. Ct. at 1606 (Scalia, J., dissenting) (defining extortion under the ACCA as "the obtaining of something of value from another" by certain prohibited means); id. at 1605 n.2 (noting that the Court had previously defined generic extortion under the Travel Act and RICO as "obtaining something of value from another with his consent in duced by the wrongful use of force, fear, or threats" (ci tations omitted)). Extortion may be used to obtain a favor from a public official, a false confession in judicial proceedings, or the use of a business for money launder ing. See, e.g., United States v. Nardello, 393 U.S. 286, 295 n.13 (1969) (explaining that extortion "is typically employed by organized crime" to "infiltrate legitimate businesses[] and obtain control of labor unions"). Extor tion is therefore "generally classified as a crime against the administration of justice or against the conduct of government, rather than as a crime against property." 3 LaFave § 20.4, at 197-198.10

Petitioner relies (Br. 29) on the Model Penal Code for the proposition that extortion is a form of theft and therefore targets property. Model Penal Code § 223.4, reprinted in 3 LaFave App. 325. But that provision ad dresses "theft by" extortion and defines only when a person "is guilty of theft." Ibid. It does not account for the full range of conduct prohibited by generic extortion. And it does not reflect the ACCA's purpose of identify ing offenses that show an offender's willingness to injure others. A person who obtains a false confession by threat of force shows as much willingness to injure oth ers as a person who extorts some tangible good by the same threat. It is the threat, not the benefit obtained, that is important. There is no good reason to conclude that extortion under the ACCA is a "property crime."

Even the enumerated offense of burglary is a "property crime" only in the sense that it requires un lawful entry into or remaining in a building or structure. See Taylor, 495 U.S. at 598. Generic burglary does not require an intent to obtain or to damage property, but only an "intent to commit a crime." Ibid. That crime need not concern property at all. Thus, petitioner can classify burglary as a "property crime" only by expand ing his definition to include offenses that occur at cer tain properties, even if the offender does not seek to harm or wrongfully to obtain any property. By so ex panding his definition, petitioner undermines his claim that the enumerated offenses are "property crimes" in any meaningful sense.

2. Status as a "property crime" is irrelevant to the ACCA's purpose

Even if petitioner were correct that all the enumer ated offenses are "property crimes," that would not jus tify limiting the residual clause to that category. A "property crimes" limitation would still not be justified under either the canon of ejusdem generis or the Court's reasoning in Begay because it would not serve the ACCA's purpose-identifying offenses the commission of which makes it more likely that the offender would use a gun to harm others.

Under the canon of ejusdem generis, the Court often construes a general term that follows a list of specific terms in a statute as covering only matters similar to the specific terms. But the Court infers a limitation under that principle only if the limitation advances the stat ute's purpose. See, e.g., United States v. Powell, 423 U.S. 87, 90-91 (1975); United States v. Alpers, 338 U.S. 680, 682-683 (1950); Gooch v. United States, 297 U.S. 124, 128 (1936). Similarly, in Begay, the Court held that offenses covered under the residual clause must, like the enumerated offenses, involve purposeful, violent, and aggressive conduct because that "pertinent" common at tribute "matters considerably" for achieving "the Act's basic purposes." 128 S. Ct. at 1586-1587.

A limitation to property crimes, in contrast, would do nothing to advance the ACCA's purpose. Crimes that target people, property, or abstract concepts like the "public order" can all involve the potential that the of fender will deliberately injure others. Because all those categories of crimes can indicate the offender's willing ness to injure others, all of them should be able to qual ify as "violent felonies" under the ACCA.

Indeed, a "property crimes" limitation would affir matively frustrate the ACCA's purpose. It would ex clude from coverage offenses like jail-break escape, 18 U.S.C. 751, inciting a riot, 18 U.S.C. 2101, or using a chemical weapon, 18 U.S.C. 229. Those purposeful, vio lent, and aggressive offenses create a serious potential risk of physical injury to others, and their commission surely makes it more likely that the offender would will ingly harm others to achieve his plans. Excluding them from qualification as "violent felonies" because they are not "property crimes" would therefore undermine Con gress's aim in enacting the ACCA.11

3. The ACCA's legislative history does not support a "property crimes" limitation

Contrary to petitioner's contention (Br. 31-33), the ACCA's legislative history also does not support a "property crimes" limitation. This Court has stated that legislative history is relevant only if it "shed[s] a reliable light on the enacting Legislature's understanding of otherwise ambiguous terms." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 567-568 (2005). Petitioner has not pointed to any language in the ACCA that even remotely suggests that the residual clause might be limited to property crimes.

In any event, the legislative history does not indicate that Congress intended a "property crimes" limitation. When Congress amended the ACCA in 1986, its purpose was to expand the predicate offenses beyond robbery and burglary. In response to criticism of the initial pro posals to accomplish that goal, Congress focused on a compromise bill. That bill expanded the predicate crimes to cover any "violent felony," which the bill de fined to include a crime that:

(i) has as an element the use, attempted use, or threatened use of physical force against the per son of another; or

(ii) involves conduct that presents a serious poten tial risk of physical injury to another.

H.R. 4885, 99th Cong., 2d Sess. 3 (1986) (quoted in Tay lor, 495 U.S. at 586). The House Report on the compro mise bill stated that subsection (ii) included offenses such as "burglary, arson, extortion, [and] use of explo sives," which were offenses specifically mentioned in the congressional hearings. See H.R. Rep. No. 849, 99th Cong., 2d Sess. 5 (1986) (quoted in Taylor, 495 U.S. at 587); Armed Career Criminal Legislation: Hearing Before the Subcomm. on Crime of the House Comm. on the Judiciary, 99th Cong., 2d Sess. 15 (1986) (statement of Mr. Knapp). The enhancement provision as finally enacted followed that form, but added to subsection (ii) the specific offenses that were mentioned in the House Report.

Petitioner emphasizes that the House Report de scribes subsection (ii) as "add[ing] all State and Federal felonies against property * * * where the conduct in volved presents a serious risk of injury to a person." Br. 32-33 (quoting H.R. Rep. No. 849, supra, at 5). But the House Report does not indicate that Congress believed "violent felonies" would be limited to property crimes. To the contrary, the language of the bill covered the specified crimes as a subset of a broad category. And that broad category was defined in terms of the risk of physical injury, not status as a property crime.

4. The canon against surplusage does not support a "property crimes" limitation

Petitioner also argues (Br. 28-29) that limiting the residual clause to property crimes is required by the canon against surplusage. That is not correct.

Petitioner may be right that every offense that satis fies the ACCA's first clause, because it has "as an ele ment the use, attempted use, or threatened use of physi cal force against the person of another," 18 U.S.C. 924(e)(2)(B)(i), would also satisfy the residual clause, because it would be a purposeful, violent, and aggressive offense that "involves conduct that presents a serious potential risk of physical injury to another," 18 U.S.C. 924(e)(2)(B)(ii); see Begay, 128 S. Ct. at 1585-1586. That does not mean, however, that the first clause is "super fluous." Pet. Br. 28. The first clause provides an objec tive method for qualifying a prior conviction as a violent felony that does not require a court to engage in the qualitative analysis required by the residual clause. A court can determine that an offense qualifies under the first clause simply by examining the offense elements. To determine whether the offense qualifies under the residual clause, the court must conduct an analysis of the risk of physical injury that the offense creates. Con gress may well have retained the first clause so that courts would not need to engage in the close examina tion and comparison of crimes whose elements them selves include the use of force.

Furthermore, Congress included the residual clause as a "catch-all" designed to cover violent felonies that might not qualify under the first clause. James, 127 S. Ct. at 1592 (quoting United States v. Davis, 16 F.3d 212, 217 (7th Cir.), cert. denied, 513 U.S. 945 (1994)). In do ing so, Congress was likely more concerned about ensur ing full coverage than eliminating possible redundancy. Accordingly, "the canon against surplusage has substan tially less force when it comes to interpreting a broad residual clause like the one at issue here." Begay, 128 S. Ct. at 1591 (Scalia, J., concurring).

In any event, even if the residual clause had to be narrowed to avoid surplusage, that would not justify limiting it to property crimes. Rather, the most natural way to eliminate any surplusage would be to limit the residual clause to offenses that lack the elements speci fied in first clause. See Begay, 128 S. Ct. at 1591 (Scalia, J., concurring) ("[I]t would raise no eyebrows to refer to 'crimes that entail the use of force and crimes that, while not entailing the use of force, nonetheless present a seri ous risk of injury to another person.'"). That approach would avoid excluding more than what is necessary to eliminate any surplusage.

5. Constitutional concerns do not support a "property crimes" limitation

Petitioner further contends (Br. 34-41) that constitu tional problems with the statutorily-mandated inquiry into whether a crime presents a "serious potential risk of physical injury" require the Court to substitute a "property crimes" limitation. The constitutional quan daries identified by petitioner do not exist, and, in any event, they could not justify the atextual requirement that he proposes.

Petitioner first argues (Br. 39-40) that the serious- risk standard is unconstitutionally vague. This Court already rejected that argument in James. The Court explained that, although the standard requires judges to make evaluations that are "sometimes difficult," it is not "so indefinite as to prevent an ordinary person from un derstanding what conduct it prohibits." James, 127 S. Ct. at 1598 n.6. As the Court noted, other federal stat utes use "[s]imilar formulations." Ibid. (citing 18 U.S.C. 2332b(a)(1)(B) (defining "terrorist act" to include con duct that, among things, "creates a substantial risk of serious bodily injury to any other person")); see 18 U.S.C. 844(f)(2) (providing enhanced penalty for mali cious destruction of property by fire or explosive that "creates a substantial risk of injury to any person"); 21 U.S.C. 858 (providing additional penalty where manufac ture of controlled substance "creates a substantial risk of harm to human life"). Numerous state statutes also require judicial or jury assessments of the substantiality of risk.12 The ACCA provides more guidance than many of those statutes on the meaning of its serious-risk stan dard because the enumerated offenses provide examples of what satisfies that standard.

Petitioner also argues (Br. 40-41) that the serious- risk inquiry violates separation-of-powers principles because it entails "[d]efining crimes and fixing penal ties," which are "legislative" rather than judicial func tions. Br. 40 (quoting United States v. Evans, 333 U.S. 483, 486 (1948), and Ex parte United States, 242 U.S. 27, 41-42 (1916)). Petitioner's reliance on those cases is un founded. In Ex parte United States, the Court held that a district court exceeds the judicial power when it sus pends a sentence that it is required to impose by statute. 242 U.S. at 37-52. This case does not involve a judicial refusal to comply with a statutory command. Evans is likewise inapposite. In that case, the Court held that, where Congress has defined a crime but failed to pre scribe a penalty for its commission, the Court's selection of a penalty from among several plausible possibilities would be purely speculative and therefore "outside the bounds of judicial interpretation." 333 U.S. at 484-485, 495. In this case, by contrast, Congress has defined the crime in question, and it has fixed the penalties for its commission. This case does not call on the Court to "plug [a] hole in the statute," id. at 487; it calls on the Court to interpret the statute. That is a judicial func tion.

As described above, many federal and state statutes call for a determination whether the risk presented by certain conduct is "substantial" or "serious." Making that determination is well within the constitutional com petence of the judiciary. See, e.g., Farmer v. Brennan, 511 U.S. 825, 828 (1994) (describing an inmate's judicial ly-administered right under the Eighth Amendment to be free from prison officials' deliberate indifference to a "substantial risk of serious harm").

For similar reasons, petitioner is incorrect in arguing (Br. 34-35, 38) that the Court should substitute a "prop erty crimes" limitation for the serious-risk inquiry be cause the limitation would be easier to administer. The courts are fully capable of conducting an inquiry into the risk presented by a particular crime, and they must do so in numerous contexts. Moreover, a "property crimes" limitation would not be as easy to administer as peti tioner suggests. The difficulty in applying such a limita tion is illustrated by the dispute in this case about whe ther several enumerated crimes would qualify. See pp. 37-40, supra. In any event, administrability concerns cannot justify rewriting the ACCA by substituting a requirement that the statute clearly does not impose for one that it clearly imposes.

Although petitioner contends that substitution of a "property crimes" limitation for the serious-risk inquiry "comports with how this Court resolved both Begay and James" (Br. 35-36), that contention is plainly incorrect. James "considered only matters of degree, i.e., whether the amount of risk posed by attempted burglary was comparable to the amount of risk posed by the example crime of burglary." Begay, 128 S. Ct. at 1585. And the Court in Begay confirmed that the ACCA's residual clause requires consideration of whether an offense is "roughly similar" to the enumerated offenses not only "in kind," but also "in degree of risk posed." Ibid. The Court did not inquire into whether the crime at issue was a "property crime" in either case. There is thus no support for the novel "property crimes" limitation that petitioner proposes.

E. The Rule Of Lenity Does Not Apply

Finally, contrary to petitioner's argument (Br. 43), the rule of lenity does not apply here. That rule is "re served for cases" that, unlike this one, involve a "griev ous ambiguity" in the statutory text such that, "after seizing everything from which aid can be derived," the Court "can make no more than a guess as to what Con gress intended." Muscarello v. United States, 524 U.S. 125, 138-139 (1998) (internal quotation marks and cita tions omitted).

Petitioner does not identify any language in the ACCA that is ambiguous. Instead, he simply disagrees (Br. 43) with the court of appeals' conclusion that a con victed felon's deliberate failure to report to prison cre ates a "serious potential risk of physical injury to an other." 18 U.S.C. 924(e)(2)(B)(ii). The serious-risk stan dard, although it sometimes requires careful examina tion of the nature of particular crimes, is not ambiguous. And, for the reasons discussed above, failure-to-report escape clearly satisfies that standard.13

CONCLUSION

The judgment of the court of appeals should be af firmed.

Respectfully submitted.

GREGORY G. GARRE
Solicitor General
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
J. CAM BARKER
Attorney

 

OCTOBER 2008

1 Although the state court initially sentenced petitioner to six months in jail (which was stayed), 30 months of probation, and a fine, his pro bation was subsequently revoked, and he was resentenced to five years of imprisonment. He spent much of his sentence in segregated confine ment because of his violence while in prison. J.A. 113-114.

2 Although the District of Columbia Circuit had declined to resolve the issue in the decision cited by the court of appeals, see United States v. Thomas, 333 F.3d 280 (2003), the District of Columbia Circuit later agreed with the majority view that any escape, including a failure to report or return, is a "crime of violence" and a "violent felony." See United States v. Thomas, 361 F.3d 653, 658-660 (2004) (holding that escape, including "[k]nowingly absenting oneself from custody without permission," is categorically a "crime of violence" under Sentencing Guidelines § 4B1.2(a)), vacated on other grounds, 543 U.S. 1111 (2005), reaffirmed in relevant part by United States v. Cook, 161 Fed. Appx. 7 (D.C. Cir.), cert. denied, 546 U.S. 913 (2005).

3 After this Court's decision in Begay v. United States, 128 S. Ct. 1581 (2008), the Seventh Circuit reversed its position and held that "failure to report to custody" is not a "crime of violence" under Guide lines § 4B1.2(a) and thus presumably also not a "violent felony" under the ACCA. United States v. Templeton, No. 07-2949, 2008 WL 4140616, at * 5 (Sept. 9, 2008). That decision is incorrect for the reasons stated in this brief. See note 13, infra.

4 See 18 U.S.C. 751(a), 4082(a); Ala. Code § 14-8-42 (LexisNexis 1995); Ariz. Rev. Stat. Ann. § 13-2501(4) (2001); Cal. Penal Code §§ 4530(c), 4532(d) (West 2000); Colo. Rev. Stat. Ann. §§ 17-27-106(1)(a), 17-27.5-104 (2006); Conn. Gen. Stat. Ann. § 53a-169(a)(4) and (5) (2007); Smith v. State, 361 A.2d 237, 238 (Del. 1976); Hines v. United States, 890 A.2d 686, 689 (D.C. 2006); Fla. Stat. Ann. §§ 945.091(4), 951.24(4) (West 2001); Ga. Code Ann. § 16-10-52(a)(5) (2007); State v. Kealoha, 787 P.2d 690, 691 (Haw. 1990); Idaho Code Ann. §§ 20-101C, 20-242(6) (2004); Kan. Stat. Ann. § 21-3809(b)(2) (1995); Ky. Rev. Stat. Ann. § 520.010(5) (LexisNexis 1999); Me. Rev. Stat. Ann. tit. 17-A, § 755(1)(A) (2006); Mass. Ann. Laws ch. 268, § 16 (LexisNexis 2002); Mich. Comp. Laws Ann. § 750.193(3) (West 2004); Minn. Stat. Ann. § 609.485(1) (West 2003); Miss. Code Ann. §§ 97-9-45, 97-9-49(2) (West 2005); Mont. Code Ann. § 45-7-306(2) (2007); Neb. Rev. Stat. Ann. § 28-912(1) (LexisNexis 2003); Nev. Rev. Stat. Ann. § 212.095(1) (LexisNexis 2005); N.H. Rev. Stat. Ann. § 651:24 (LexisNexis 2007); N.J. Stat. Ann. § 2C:29-5(a) (West 2005); N.C. Gen. Stat. Ann. § 148-45(g)(1) (2007); N.D. Cent. Code § 12.1-08-06(1) (1997); Okla. Stat. Ann. tit. 21, § 443(C) (West 2002); Or. Rev. Stat. § 144.500(2)(b) (2007); 18 Pa. Cons. Stat. Ann. § 5121(a) (West 1983); R.I. Gen. Laws § 11-25-4 (2002); State v. Furlong, 291 A.2d 267, 270 (R.I. 1972); S.C. Code Ann. §§ 24-3-50, 24-3-210(C) (2007); Tenn. Code Ann. § 39-16-601(3) (2006); Tex. Penal Code Ann. § 38.01(2) (Vernon 2003); Utah Code Ann. § 76-8-309(1)(a)(i) and (4)(c)(i) (West 2003); State v. Ammons, 963 P.2d 812, 814 (Wash. 1998); Wash. Rev. Code Ann. §§ 9A.76.010, 9A.76.110(1) (West Supp. 2007); W. Va. Code Ann. §§ 61-5-10, 62-11A-4 (2005); Wis. Stat. Ann. §§ 303.065(2), 946.42(1)(a), 946.425 (West 2005); Wyo. Stat. Ann. §§ 7-13-702, 7-16-309, 7-18-112 (2007).

Petitioner is therefore incorrect in suggesting (Br. 4-5 n.1) that most States distinguish failure to report or return from custodial escape and punish it less severely. Petitioner is also mistaken in relying on 18 U.S.C. 3146, which criminalizes bail-jumping and similar offenses as well as failure to surrender for service of sentence. Bail-jumping is not equivalent to the escape offense committed by petitioner because bail- jumping does not entail the refusal to submit to custody by someone who has already been found guilty of a crime and duly sentenced to in carceration.

5 This discussion classifies the following offenses as violent crimes: murder, manslaughter, rape, arson, assault, battery, kidnapping, rob bery, burglary (including breaking and entering with intent to commit a felony), attempting to elude a police officer, and "other violent crimes." Also included as violent crimes are drug manufacturing, drug distribution, and possession of drugs with intent to distribute them, be cause those offenses, unlike simple possession, indicate involvement in the drug trade, which is closely associated with violence. If drug man ufacturing and distribution crimes were not included, the percentage of convictions for violent crimes would range between 40% (Washing ton) and 64% (Massachusetts). See App., infra, 4a-11a.

6 The Court also clarified that the determination whether a crime is purposeful, violent, and aggressive, like the determination whether it poses a serious risk, is made under the categorical approach. Begay, 128 S. Ct. at 1584.

7 See Bailey, 444 U.S. at 408; Alaska Stat. §§ 11.56.300, 11.56.310, 11.56.320, 11.56.330, 11.81.610 (2006); Ariz. Rev. Stat. Ann. §§ 13-2502, 13-2503, 13-2504 (2001); Colo. Rev. Stat. Ann. § 18-8-208 (2006); Hines v. United States, 890 A.2d 686, 689-690 (D.C. 2006); Reynolds v. Commonwealth, 113 S.W.3d 647, 651 (Ky. App. 2003); Md. Code Ann., Crim. Law § 9-404 (West 2008); Mo. Rev. Stat. § 562.021(3) (West 1999); id. § 575.210(3) (West 1995); Mont. Code Ann. § 45-7-306(2) (2007); State v. Aldrich, 466 A.2d 938, 941-942 (N.H. 1983); N.J. Stat. Ann. §§ 2C:2-2, 2C:29-5 (West 2005); Wash. Rev. Code Ann. § 9A.76.110 (West 2000).

8 See Del. Code Ann. tit. 11, §§ 251(b), 6533 (2007); N.D. Cent. Code §§ 12.1-08-06, 12.1-02-02(2) (1997); 18 Pa. Cons. Stat. Ann. §§ 302(c), 5121 (West 1983); Tenn. Code Ann. § 39-11-301(c), 39-16-605 (2006); Tex. Penal Code Ann. §§ 6.02(c), 38.06 (Vernon 2003); Utah Code Ann. § 76-2-102, 76-8-309 (West 2003).

9 Petitioner also errs in asserting (Br. 20) that his proposed rule is required by the "'categorical' approach" to the ACCA. That approach requires consideration of "the conduct encompassed by the elements of the offense." James, 127 S. Ct. at 1597. But it says nothing about what the offense conduct must entail. The text of the ACCA tells us that: the offense conduct must create a "serious potential risk of physical injury," regardless of when that injury would occur. 18 U.S.C. 924(e)(2)(B)(ii) (emphasis added).

10 In Wilkie v. Robbins, 127 S. Ct. 2588 (2007), this Court observed that, "[a]t common law, extortion was a property offense committed by a public official who took any money or thing of value that was not due to him under pretense that he was entitled to such property by virtue of his office." Id. at 2605-2606 (quoting Scheidler v. NOW, 537 U.S. 393, 402 (2003)). In neither Wilkie nor Scheidler, however, did the Court have occasion to consider whether extortion under the ACCA, which is not coextensive with common-law extortion, see p. 30, supra; Taylor, 495 U.S. at 592-595, is a property crime. Moreover, a "thing of value" can include benefits, such as access to a legislator or the promise of his vote, that do not constitute "property" in ordinary parlance. The Court's passing reference to common-law extortion as a "property crime" therefore does not support petitioner's argument here.

11 Petitioner also errs in arguing (Br. 30-31) that the ACCA's struc ture supports a "property crimes" limitation. He contends that such a limitation would make the ACCA's residual clause coextensive with the "property crimes" nature of subsection (ii) and distinct from the "crimes targeting persons" in subsection (i). But the distinction be tween the two subsections arises from the focus of subsection (i) on elements involving force and the focus of subsection (ii) on results involving potential injury. Subsection (ii) need not be further limited by an artificial "property crimes" constraint.

12 All or virtually all States have criminal laws that define reckless endangerment, kidnapping, resisting arrest, or other offenses by using some formulation similar to "serious risk of physical injury." See, e.g., Ala. Code § 13A-6-24(a) (LexisNexis 2005) ("substantial risk of serious physical injury"); Alaska Stat. § 11.41.300(a)(2)(B) (2006) (same); id. § 11.56.700 ("substantial risk of physical injury"); Ariz. Rev. Stat. Ann. § 13-1201(A) (2001) ("substantial risk of imminent death or physical injury"); id. § 13-2508(A)(2) ("substantial risk of causing physical in jury"); Ark. Code Ann. § 5-11-103(a) (2006) ("substantial risk of serious physical injury"); id. § 5-13-206(a) ("substantial risk of physical in jury"); Cal. Penal Code § 278.6(a)(1)(a) (West 2008) ("substantial risk of physical injury or illness"); Colo. Rev. Stat. § 18-3-208 (2006) ("sub stantial risk of serious bodily injury").

13 Although the Seventh Circuit, in a recent case, reversed the posi tion that it took below, see note 3, supra, that action provides no reason for this Court to decline to resolve the question presented in this case. The Seventh Circuit's change of position increases, rather than decreases, the existing tension among the courts of appeals, and the Court's resolution of the question presented will definitively determine whether petitioner's sentence is legally authorized. The Seventh Cir cuit's new position is incorrect for the reasons explained above and, if applied to this case, would improperly require petitioner's mandatory minimum 15-year sentence under the ACCA to be set aside.

 

APPENDIX A

 

RELEVANT STATUTORY PROVISIONS

 

1. 18 U.S.C. 922 provides in pertinent part:

Unlawful acts

* * * * *

(g) It shall be unlawful for any person-

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term ex ceeding one year[,]

* * * * *

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or am munition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

 

2. 18 U.S.C. 924(e) provides in pertinent part:

Penalties

* * * * *

(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, commit ted on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provi sion of law, the court shall not suspend the sentence of,

or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

(2) As used in this subsection-

* * * * *

(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year * * * that-

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

* * * * *

 

3. 720 Ill. Comp. Stat. 5/31-6 (West 2003) provides in pertinent part:

Escape; failure to report to a penal institution or to re port for periodic imprisonment

(a) A person convicted of a felony or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 felony; however, a person convicted of a felony who knowingly fails to re port to a penal institution or to report for periodic im prisonment at any time or knowingly fails to return from furlough or from work and day release or who knowingly fails to abide by the terms of home confinement is guilty of a Class 3 felony.

4. 730 Ill. Comp. Stat. 5/5-8-1 (West 2007) provides in pertinent part:

Sentence of Imprisonment for Felony

(a) Except as otherwise provided in the statute defin ing the offense, a sentence of imprisonment for a felony shall be a determinate sentence set by the court under this Section, according to the following limitations:

* * * * *

(6) for a Class 3 felony, the sentence shall be not less than 2 years and not more than 5 years[.]

 

5. 730 Ill. Comp. Stat. 5/5-5-3 (West 2007) provides in pertinent part:

Disposition

(b) The following options shall be appropriate dispo sitions, alone or in combination, for all felonies and mis demeanors other than those identified in subsection (c) of this Section:

(1) A period of probation.

(2) A term of periodic imprisonment.

* * * * *

(4) A term of imprisonment.

* * * * *

(6) A fine.

 

APPENDIX B

FEDERAL AND STATE STATISTICS

United States
Defendants Convicted of 18 U.S.C. 4082 Escape by Criminal History Category, 2003-2007

Criminal
History
Category
Number of
Convicted
Defendants
Cumulative Percentage
of Total
VI
39
35%
V
19
52%
IV
22
72%
III
31
100%

Data obtained from United States Department of Jus tice, Criminal Division, Office of Policy and Legislation, July 2008, using data provided by the United States Sentencing Commission
Florida
Escapes from Work Release Centers Between July 1, 2003, and June 25, 2008, by Primary Offense Group/Pri mary Offense Description

Offense Group
Number
1 -Murder/Manslaughter
9
3 -Robbery
38
4 -Violent, Other
25
5-28-Burglary, Structure
38
5-29-Burglary, Dwelling
94
5-30-Burglary, Armed
5
5-31-Burglary with Assault
3
5-32-Burglary/Trespass, Other
2
6-33-Grand Theft, Other
27
6-34-Grand Theft, Automobile
35
6-35-Stolen Property
45
6-36-Forgery/Counterfeiting
6
6-37-Worthless Checks
2
6-38-Fraudulent Practices
8
6-39-Other Theft/Property Damage
5
7-40-Drugs, Manufacture/ Sale/Purchase
105
7-41-Drugs, Trafficking
26

Data obtained from Florida Department of Corrections, Bureau of Research and Data Analysis, June 2008


Massachusetts
Failure-to-Return Escapees from January 1, 2003, to June 30, 2008, by Incarceration Offense

Incarceration Offense
Number
Armed Robbery
7
Armed Assault
1
Assault and Battery with Deadly Weapon
4
Distribution of Class B Cocaine
2
Possession of Class B Cocaine with
Intent to Distribute
1
Possession of Class B Substance
1
Larceny over $250
1
Breaking and Entering with Intent to Commit Felony
1
Unarmed Burglary
1
Theft of a Motor Vehicle
2
Weapons Violation
1

Data obtained from Massachusetts Department of Cor rection, Fugitive Apprehension Unit, July 2008

North Carolina
Offenders Who Failed to Return from Work Release, Home Leave, Community Volunteering, or Other Out side Activities from January 1, 2003, to June 30, 2008

Crime of Incarceration
Number
Armed Robbery
1
Arson 2nd Degree
1
Assault with Deadly Weapon
2
Burglary 1st Degree
4
Burglary 2nd Degree
2
Cheat - Property/Services
1
Common Law Robbery
2
DWI Level 1
1
Felony B&E
5
Habitual Felon
17
Involuntary Manslaughter
1
Kidnapping 2nd Degree of a Minor
1
Kidnapping 2nd Degree
2
Larceny
1
Larceny (Over $200)
1
Larceny of Motor Vehicle
1
Larceny over $1000
3
Malicious Conduct/Prisoner
1
Misdemeanor B&E
3
Murder Second Degree
2
Possess WITS Schedule II
1
Possessing Stolen Goods
1
Possession of Firearm by Felon
2




Rape First Degree
1
Robbery with Dangerous Weapon
4
Sell Schedule II
1

Data obtained from North Carolina Department of Cor rection, Policy Development Analyst, July 2008
Pennsylvania
Failure-to-Return Escapees from January 1, 2003, to June 24, 2008, by Offense Type

Offense Type
Number
Access Device Fraud
1
Accident with Death-Inj
1
Aggrvtd Aslt
21
Aggrvtd Aslt with SerBodInj
3
Aggrvtd Aslt with Wpn
1
Burglary
26
Contraband/Cntrl Subst
1
Corrupt Orgns
1
Crim Attempt
1
Crim Conspiracy
9
Crim Trespass
4
Drugs- PWID
61
Drugs-PCS
2
DUI
1
Firearm in public
1
Firearm without license
3
Firearms-Unlawful Possess
1
Forgery
4
Kidnapping
1
Murder 3
2
Prostitution
1
Recvng Stolen Prop
4
Retail Theft
3
Robbery
45
Robbery of Mtr Veh
3
Robbery with SerBodInj
4
Simple Aslt
2
Theft
5
Theft by Deception
1
Theft-Movable Prop
4
VOP
3

Data obtained from Pennsylvania Department of Cor rections, Bureau of Planning, Research, Statistics, and Grants, July 2008
Washington
Escape by Failure to Return from Work Release from January 1, 2003, to July 23, 2008

Incarceration Offense
Number
Arson
1
Assault
70
Attempt to Elude
2
Auto Theft
18
Burglary
39
Criminal Mistreatment
1
Manufacture/Delivery of Drugs
69
Other Drugs
69
Fail to Register Sex Offender
1
Maliscious Mischief
1
Murder 2nd
1
Property (Theft/Forgery/PSP)
50
Public Nuisance Sex
1
Robbery
27
Unlawful Possession of Firearm
1

Data obtained from Washington Department of Correc tions, Planning and Research, July 2008