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SCOTUSwiki Preview: Chambers v. US

John Dalton, a student in the Stanford Supreme Court Litigation Clinic, previews Monday’s first argument.  Additional information is available on the Chambers v. US SCOTUSwiki page.

On November 10, the Court will consider whether failure to report to prison is a violent felony for the purposes of enhanced sentencing under the Armed Career Criminals Act.


In 2006, petitioner Deondery Chambers pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).  At sentencing, the government argued that petitioner was subject to a fifteen-year mandatory minimum sentence pursuant to § 924(e) of the Armed Career Criminal Act (ACCA), which requires such a sentence when a defendant violates § 922(g) after committing three “violent felon[ies] or [] serious drug offense[s].”   One of the three “predicate convictions” on which the government relied to establish petitioner’s eligibility for the enhanced sentence was petitioner’s state conviction for escape.  Under Illinois law, the term escape encompasses both breaking free from prison or custody and knowingly failing to report to prison.  The government did not dispute that Chambers’ escape was in the latter category.  Petitioner argued that his failure-to-report escape was not in fact violent because it did not present the kind of struggle that normally is present in escape from confinement and thus fell outside the purview of § 924(e).

At the sentencing hearing, the district court relied on Seventh Circuit precedent to hold that escape constituted a “violent felony.”  The court held that “for reasons of simplicity . . . escape is escape” and declined to differentiate between failure-to-report escape and custodial escape.  Accordingly, the court concluded that Chambers was an armed career criminal and sentenced him to 188 months – a sentence at the bottom of the applicable Guidelines range.  Had Chambers had not been treated as a career criminal, by contrast, his sentencing range would have been 130 to 162 months, with the statutory maximum for his offense at 120 months.

On appeal, the Seventh Circuit, in an opinion by Judge Posner, framed the question before it as whether “a conviction under Illinois law for escape, was indeed a crime of violence.”  “As an original matter,” the court observed, “one might have doubted whether failing to report to prison . . . was a crime that typically or often ‘involves conduct that presents a serious potential risk of physical injury to another.’”  This, however, was not a question of first impression, and the court deemed itself bound by an earlier panel decision in United States v. Golden, holding that any escape under Illinois law constituted “a crime of violence [under] the Act.”

The court then reviewed the other circuits’ positions on this question and concluded that the Seventh Circuit position was consistent with its sister circuits, except for the Ninth and D.C. Circuits.  The court, however, indicated that “there would be no impropriety in dividing escapes, for purposes of ‘crime of violence’ classification, into jail or prison breaks on the one hand and . . . failures to report . . . on the other,” and that this division would be easy to apply for sentencing judges.

Ultimately, the court decided to “adhere to the precedents for now“ but emphasized that “it is an embarrassment to the law when judges base decisions of consequence on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences.”

Petition for Certiorari

In his petition for certiorari, Chambers advanced three primary reasons for granting certiorari.  First, there is a well-developed circuit split.  The circuits are divided ten to two on the issue, with the Ninth and D.C. Circuits holding that failure-to-report escapes are not violent crimes and the other circuits reaching a contrary conclusion.

Second, Chambers argued that because the Supreme Court recently acknowledged in James v. United States that some standard needed to be created for what constitutes a “violent felony,” this case is the proper vehicle for setting that standard.  The provision in the ACCA has an enumerated list of felonies that clearly constitute a violent felony (i.e., burglary, arson, extortion, or crimes involving the use of explosives) , but it concludes with a catch-all,  encompassing any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”  In James, the crime (attempted burglary) was analogous to the enumerated felony of burglary and thus, although the majority recognized the need for a standard, the Court refused to establish such a standard in James because that case was not an appropriate vehicle.  Chambers argued that his case differs from James, as his case is “an excellent vehicle to address this substantial gap in the interpretation and application of the ACCA,” because failure-to-report cases are not analogous to any of the enumerated felonies.

Finally, granting certiorari would give the Court an “opportunity to place a principled limit” on the catch-all provision of the ACCA.

The government, in its opposition, provided three primary reasons for denying certiorari.  First, the government argued that Chambers’s argument is wrong on the merits.  Invoking the Tenth Circuit’s characterization of escape, the government argued that even failure-to-report escape “gives rise to a serious risk of physical injury.”  This is true with failure-to-report, the government explained, because there is no way to determine what an individual will do when confronted by police who know he is wanted.  The government argued that the individual factual context is irrelevant; instead, the statutory definition is what is important.

Second, most of the circuits agree that escape constitutes a “violent felony” under the ACCA.  The Ninth Circuit case on which Chambers relied, according to the government, considered only whether failure-to-report is a crime of violence according to the Sentencing Guidelines.  Therefore, even the Ninth Circuit’s position does not conflict with the majority of circuit precedent.

Finally, the government argued that James was a different case because it involved attempted burglary and thus does not require a grant in this case.  In addition, the government cited two prior cases presenting the same question in which the Court denied certiorari.

In his reply brief, Chambers argued that the government’s claim that factual context is irrelevant contradicts precedent which requires a court to look at the charging document, not the statutory definition alone.  In addition, Chambers noted that even the government recognizes that the Sentencing Guidelines and the ACCA have ”identical” language, so the Ninth Circuit’s decision is relevant.  Also, since the initial petition, the Sixth Circuit has held that failure-to-report was not a violent felony in Michigan.  Finally, certiorari should be granted so that the Court can do in this case what it was unable to do in James – that is, set a reasoned standard.

Merits Briefing

In his merits brief, Chambers advances five main reasons why failure-to-report escape should not be considered a violent felony under the ACCA.  Chambers begins by focusing on the Court’s decision from last Term in Begay, in which the Court noted that only crimes “similar” to the enumerated crimes would be included in the catch-all.  Chambers argues that the enumerated crimes have two characteristics in common: (1) “they involve purposeful, violent and aggressive conduct during the commission of the offense,” and (2) “they are property crimes.”  Failure-to-report escape is thus not a violent crime within the meaning of the ACCA, Chambers argues, as it does not have either of these characteristics.

First, the crime of failure-to-report is one of omission, not commission, and therefore cannot be considered “purposeful, violent, and aggressive” as required by the residual statute of the ACCA.  Failing to report “is itself without risk” and “involves doing nothing.”  Thus, Chambers argues, failure-to-report escape cannot be considered a violent felony under ACCA because “[i]naction is the very antithesis of purposeful, violent and aggressive conduct.”  Chambers contrasts his case with Begay, in which the Court held that driving under the influence was strict liability and therefore did not have the required purpose element necessary.  Because the crime in Begay was active and yet still insufficient, Chambers argues, the inactive crime of failing to report certainly is not sufficient. 

Furthermore, the hypothetical possibility that violence could erupt when the individual is confronted by a police officer is not sufficient for a crime to constitute a crime of violence.  Otherwise, every crime would carry this possibility, because violence could potentially erupt from that arrest.  Instead, the focus is on whether “the conduct encompassed by the elements of the offense” is “inherently dangerous.”  Because there is no risk that an individual will be confronted during the actual commission of the crime, the commission of the crime is not “inherently dangerous.”  The fact that the offender was allowed to move about freely in the community shows that the concern for violence must not have been that high.

Second, Chambers argues that the catch-all provision should be limited to property crimes, which all of the enumerated felonies target.  When read alone, the language in the residual clause encompasses every crime involving purposeful, violent and aggressive conduct .  Therefore, unless the “residual subclause” is limited to property crimes, it would render the first clause with enumerated felonies “superfluous,” and principles of statutory interpretation require that every clause of a statute be given meaning.  This construction is also confirmed by the purpose of the Act and the legislative history.  Failure-to-report escape is not a property crime.

Third, Chambers argues that if the Court adopts the proposed reading of the ACCA, the lower courts will have a standard that can be consistently applied.  Whether property damage is done, or intended, is a much simpler approach than requiring lower courts to study statistical data on the likelihood that violence would occur as a result of a particular crime.  Furthermore, to allow sentencing to turn on such a vagary would violate constitutional requirements of clarity in criminal laws.

Fourth, even if the Court considered the numerical frequency of the harm that results from a particular offense, failure-to-report escape is still not a violent felony, as the government has failed to produce any data showing the frequency with which violence occurs in failure-to-report escape cases.

In conclusion, Chambers briefly contends that at the very least, the rule of lenity should apply because Congress did not clearly intend to include failure-to-report escape cases in the ACCA provision.

In its brief on the merits, the government provides five reasons why failure-to-report escape is indeed a violent felony within the meaning of the ACCA.  First, failure-to-report creates an analogous risk to that of burglary.  With burglary, the Court held that the risk of violence occurs when someone investigates.  Similarly, in failure-to-report cases, there is a “risk of violent confrontation between the escapee and law enforcement officers seeking to recapture him.”  In addition, to be liable for failure-to-report, the individual must be a recidivist with some criminal record, and the person who finds him will most likely be an armed police officer who knows of the individual’s propensity for violence.  The Court’s decision in James made clear that “hard statistics” are not necessary.

Second, failure-to-report escape satisfies the Begay standard that it be “purposeful, violent, and aggressive.”  Purpose exists because the crime requires the individual to knowingly fail to report.   In addition, failure-to-report escape is violent because of the risk of “closely related, violent confrontation” discussed above.  Finally, the criminal is making a “conscious decision to disobey a legal obligation to report,” so it cannot be said that he is guilty of pure inaction.

Third, the government argues that Chambers’s claim that potential violence must occur “during the commission of the offense” directly contradicts the text of the ACCA because some enumerated felonies are classified in this category based on the harm after the offense (e.g. placing bombs on a boat may be the crime, but no harm occurs until they explode).  In addition, such an interpretation limiting the ACCA would violate its purpose, which was to identify crimes in which the criminal is “willing to engage in conduct ‘where the risk of harm to others is consciously known.’”  Because failure-to-report is a continuing offense, the potential violence occurs during the recapture (and thus is part of the offense).

Fourth, the government contends that Chambers’s proposed limitation of the catch-all clause to “property crimes” is incorrect because extortion and use of explosives do not necessarily involve property.  Instead, extortion simply involves an effort to obtain “anything of value,” and an explosive can be used in an open area where property is not damaged.  The legislative history does not support this construction; nor does the canon against surplusage, as the initial clause can still have meaning because it provides a list that requires no “qualitative analysis.”  In addition, the government casts doubt on the claim by petitioner that the vagary raises constitutional issues, noting that in James the Court rejected just such an argument.

Finally, the government argues that the rule of lenity is completely inapplicable in this case as there is no ambiguity in the statutory text.

Argument is scheduled for November 10, 2008.