5th Circuit Reasoning Unchanged by Supreme Court Precedent Regarding Violent Felony Enhancement under the ACCA

Under the Armed Career Criminal Act (ACCA) (18 U.S.C. § 924(e)(1)), a person who violates federal felon-in-possession-of-a-firearm statute (18 U.S.C. § 922(g)) and who has three prior convictions of a “violent felony” or “serious drug offense” must be sentenced to no less than 15 years in prison.

The obvious question follows – What exactly is a “violent felony?”

ACCA provides that a violent felony is:

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. (emphasis added).

You’ll notice the ubiquitous residual clause there at the end. It was this catchall portion that the U.S. Court of Appeals for the 5th Circuit was recently called upon to examine (or reexamine). See United States v. Hughes, HERE.

David Earl Hughes was charged and convicted as being a felon-in-possession under § 922(g). Hughes also had three prior felony convictions (two of which he did not challenge as being “violent felonies”). His third prior felony, however, a violation of the federal escape statute, 18 U.S.C. § 751, he argued, was not a “violent felony” despite an explicit 5th Circuit holding to the contrary. See United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999). Hughes pointed to two recent Supreme Court cases, which, he claimed, required that the court reevaluate its prior conclusion.

First, in United States v. Begay, 128 S.Ct. 1581 (2008), the Supreme Court limited the scope of the residual clause, explaining that:

only crimes similar to the enumerated offense qualified, not ‘every crime that presents a serious potential risk if physical injury to another.’

Hughes additionally emphasized the Court’s decision last term in Chambers v United States, 129 S.Ct. 687 (2009), wherein it held that the Illinois crime of failure to report to prison was not a violent felony.

Rejecting the Government’s argument that failure to report showed ‘the offender’s, special, strong aversion to penal custody’ as ‘beside the point,’ the Court reiterated that the core inquiry is ‘whether such an offender is significantly more likely than others to attach, or physically resist, an apprehender, thereby producing a serious potential risk of physical injury.’

So it there a real difference in failing to report and escape from custody? According to a panel of 5th Circuit judges, YES.

In upholding the trial court’s determination that Hughes’ felony conviction for escape was a “violent felony,” the 5th Circuit reasoned:

unlike failure to report, escape is typically committed in a purposeful manner, and when these escapes cause injuries, those injuries typically result from intentional action, not negligence of even recklessness.

The Court went on to state that the act of escape is “typically aggressive insofar as one who escapes prison is no doubt aware that armed law enforcement will seek him out, potentially ending in a violent confrontation.” No case-by-case inquiry needed – escape is a violent felony for the purposes of enhancement under ACCA. Period.