Escape from Halfway House Is Not a § 4B1.2(a) COV

United States v. Jones, No. 12-40877 (5th Cir. June 12, 2014) (Higginbotham, Owen, Higginson)

Jones was convicted of possession of a firearm by a felon, and the presentencing officer recommended a base offense level of 20 after concluding that Jones’ prior felony was a “crime of violence” as defined in § 4B1.2(a).  Jones prior felony was a conviction under 18 U.S.C. § 751(a) for leaving a halfway house.  He argues on appeal that his conviction is not a COV under the residual clause of § 4B1.2(a) because it does not “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

The panel refers to Chambers v. United States, 555 U.S. 122 (2009), an Armed Career Criminal Act case in which the Supreme Court held that failing to report for imprisonment was not a violent felony under the ACCA.  In Chambers, the Supreme Court relied on a report that showed that none of the 160 failures to report in 2006 and 2007 resulted in the use or threat of force only five (3.1%) involved a dangerous weapon.  That same report showed that only three (1.7%) of the 177 instances of “leaving nonsecure custody” involved the use or threat of force, and only four (2.3%) involved a dangerous weapon. 

The panel agrees with other circuit courts that “‘[e]scaping’ from a halfway house does not typically ‘present a serious potential risk of physical injury’ to others.”  Jones’ sentence is vacated and remanded.

The panel also addresses the Government’s arguments that finding Jones’ conviction to not be a COV would be inconsistent with Fifth Circuit precedent.  The panel emphasizes that precedent allows looking to the charging document to determine whether the offense is a § 4B1.2 COV since the commentary to § 4B1.2 specifically directs the court to look at the conduct charged whereas the ACCA looks to the statutory offense, not the charged offense.   The panel does not disturb precedent finding that escape from a prison camp can present a “powder keg” situation and be a § 4B1.2 COV (United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999)) and that escape from an institution is typically a COV under the ACCA regardless of the conduct charged in the indictment (United States v. Hughes, 602 F.3d 669 (5th Cir. 2010)).