United States v. 2007-06-11 | 06-30451 | USA VSAVAGE | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 06-30451
Plaintiff-Appellee, D.C. No.
v.  CR-04-00128-RFC
SHANE RUSSELL SAVAGE, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted
April 13, 2007—Seattle, Washington
Filed June 12, 2007
Before: Alex Kozinski and Raymond C. Fisher,
Circuit Judges, and Andrew J. Guilford, District Judge.*
Opinion by Judge Fisher
*The Honorable Andrew Guilford, United States District Judge for the
Central District of California, sitting by designation.
7153

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COUNSEL
Robert L. Kelleher Jr., Billings, Montana, for the defendant-
appellant.
William W. Mercer, United States Attorney, Marcia Hurd
(argued), Assistant United States Attorney, Billings, Montana,
for the plaintiff-appellee.
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OPINION
FISHER, Circuit Judge:
Appellant Shane Russell Savage appeals the district court’s
calculation of his recommended sentence under the United
States Sentencing Guidelines (“Guidelines”), arguing that his
prior state conviction for escape was not a crime of violence
warranting a sentence enhancement under the Guidelines. We
affirm the enhancement and hold that where the appropriate
documents reveal that a defendant was previously convicted
of escaping from a jail or prison, the previous conviction
qualifies as a “crime of violence” under U.S.S.G. § 4B1.2(a).
I. Background
Savage pled guilty to and was sentenced for possession of
an unregistered firearm and possession of a firearm not identi-
fied by a serial number in violation of 26 U.S.C. §§ 5841,
5861(d), 5861(i) and 5871. In its original sentencing, the dis-
trict court found that Savage had at least two prior felony con-
victions that qualified as crimes of violence — a 2004 state
conviction for felony assault with a weapon and a 2004 state
conviction for escape. See United States v. Savage, 178 F.
App’x 726, 727-28 (9th Cir. 2006).
Savage conceded that felony assault with a weapon is a
crime of violence, but disputed that felony escape qualified as
such. Id. The district court ruled that the felony escape was
categorically a crime of violence, noting that (at that time) the
issue was an open question in our circuit but that “every cir-
cuit in the country, except the Ninth Circuit, had held that
escape categorically constituted a crime of violence under
§ 4B1.2(a).” Id. at 728. Accordingly, the district court sen-
tenced Savage under U.S.S.G. § 2K2.1(a)(1), which governs
the base offense level for Savage’s crime of conviction when
a defendant has two or more previous convictions for crimes
of violence.
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In Savage’s first appeal, we remanded for resentencing in
light of the intervening case of United States v. Piccolo, 441
F.3d 1084 (9th Cir. 2006), in which we held that escape is not
categorically a crime of violence but could qualify as such
under the modified categorical approach. Savage, 178 F.
App’x at 728. During resentencing, the district court con-
cluded that under the modified categorical approach, based on
the available charging and sentencing documents, Savage’s
2004 felony escape conviction did qualify as a “crime of vio-
lence” under U.S.S.G. § 4B1.2(a),1 giving him the requisite
minimum of two prior such convictions.
II. Discussion
We review the district court’s interpretation of the Sentenc-
ing Guidelines de novo. See United States v. Cantrell, 433
F.3d 1269, 1279 (9th Cir. 2006). The district court calculated
Savage’s base offense level under U.S.S.G. § 2K2.1(a), which
provides in relevant part that the sentencing court should
choose the greater of:
(1) 26, if (A) the offense involved a (i) semiauto-
matic firearm that is capable of accepting a large
capacity magazine; or (ii) firearm that is described in
26 U.S.C. 5845(a); and (B) the defendant committed
any part of the instant offense subsequent to sustain-
ing at least two felony convictions of either a crime
of violence or a controlled substance offense;
. . .
(3) 22, if (A) the offense involved a (i) semiauto-
1Savage has two prior convictions for escape, one in 1993 and another
in 2004. The documents for Savage’s first escape conviction could not be
obtained for resentencing, so the district court addressed only the possibil-
ity that Savage’s 2004 escape conviction qualified as a crime of violence
under the modified categorical approach. We do the same.
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matic firearm that is capable of accepting a large
capacity magazine; or (ii) firearm that is described in
26 U.S.C. 5845(a); and (B) the defendant committed
any part of the instant offense subsequent to sustain-
ing one felony conviction of either a crime of vio-
lence or a controlled substance offense.
(Emphasis added). Savage contends that the court should have
calculated his offense level under § 2K2.1(a)(3) rather than
(a)(1) because his previous felony escape was not a “crime of
violence,” and therefore only his previous conviction for fel-
ony assault with a weapon qualified as such.
[1] A “crime of violence” is defined by U.S.S.G.
§ 4B1.2(a) as:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that (1)
has as an element the use, attempted use, or threat-
ened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential
risk of physical injury to another.
(Emphasis added). “Because escape is neither specifically
enumerated under U.S.S.G. § 4B1.2 nor has as ‘an element
the use, attempted use, or threatened use of physical force
against the person of another,’ the offense, to qualify as a
crime of violence, must fall within the ‘catchall’ provision of
§ 4B1.2(a)(2) for ‘conduct that presents a serious potential
risk of physical injury to another.’ ” Piccolo, 441 F.3d at
1086.
[2] In Piccolo, we held that a “walkaway escape” under a
statute that includes escapes accomplished by nonviolent
means is not categorically a crime of violence under U.S.S.G.
§ 4B1.2. Piccolo had been convicted under a federal escape
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statute for his failure to return to a halfway house after leav-
ing with permission to attend a drug treatment meeting. Id. at
1085, 1089. We reasoned that escape under the federal statute
that criminalized such “walkaway escapes” from institutions
that allowed residents “certain privileges of ingress and
egress” could not be a categorical crime of violence in light
of our decision in United States v. Kelly, 422 F.3d 889 (9th
Cir. 2005). Id. at 1088.
In Kelly, we held that a defendant’s conviction under a
Washington statute criminalizing attempts to elude a police
vehicle did not constitute a crime of violence under the cate-
gorical approach. The statutory definition of the crime
included driving that posed danger only to others’ property,
and Washington courts had construed the statute such that
there was no “requirement that anyone actually be endangered
by the defendant’s conduct.” Kelly, 422 F.3d at 893. Nor
could the government demonstrate that Kelly’s previous con-
viction was for a crime of violence under the modified cate-
gorical approach. The available documents there “simply
track[ed] the statutory language” and failed to “set forth the
elements of Kelly’s conviction.” Id. at 896. Comparing escape
to the crime discussed in Kelly, we observed in Piccolo that:
The circumstances in Kelly involved close physical
confrontation under circumstances leading to a much
greater possibility of violence than walkaway
escape. The offense in Kelly also contained an “en-
dangerment” provision not present in the escape stat-
ute at bar, making the latter offense, by comparison,
even less likely to qualify as a “crime of violence.”
We conclude that Kelly controls the outcome of this
case, resolving, a fortiori, that a walkaway escape is
not a crime of violence.
441 F.3d at 1088.
[3] Like the federal escape statute at issue in Piccolo, the
Montana escape statute under which Savage was convicted
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does “not differentiate between violent and non-violent
escapes” and includes escapes from facilities that “run[ ] the
gamut from maximum-security facilities to non-secure half-
way houses.” Id. Montana Code Annotated § 45-7-306(2) pro-
vides that escape includes purposeful “fail[ure] to return to
official detention following temporary leave granted for a spe-
cific purpose or limited time” as well as “knowingly or pur-
posely elud[ing] official detention.” Thus, as we concluded on
Savage’s first appeal, Savage’s conviction under the Montana
escape statute cannot categorically constitute a crime of vio-
lence. Savage, 178 F. App’x at 728.
[4] Piccolo explicitly noted, however, that the court’s
“conclusion that a conviction for escape . . . does not categori-
cally qualify as a crime of violence does not preclude the gov-
ernment from demonstrating, under a modified categorical
approach, that a specific conviction for escape would meet the
requisite standard.” 441 F.3d at 1088 n.7. Under the modified
categorical approach, when the language of the statute of con-
viction is insufficient to determine whether the defendant pre-
viously committed an offense within the Guidelines
definition, the court examines “the statutory definition, charg-
ing document, written plea agreement, transcript of plea collo-
quy, and any explicit factual finding by the trial judge to
which the defendant assented.” Shepard v. United States, 544
U.S. 13, 16 (2005).
[5] Unlike Kelly, the documents we may examine here
under the modified categorical approach reveal a key detail
about Savage’s previous conviction. Based on the charging
document and the transcript of Savage’s plea allocution to the
2004 escape charges, it is clear that he was convicted for
escaping from a jail, rather than from a facility that allowed
its residents privileges of ingress and egress. Savage stated
“I’m guilty of Escape for — I was being held in the Gallatin
county jail and on June 29th, 2003, I escaped from jail.” Sav-
age’s escape, therefore, was qualitatively different from the
walkaway escape at issue in Piccolo.
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Contrary to Savage’s suggestion, Piccolo does not stand for
the broad proposition that a prior conviction for escape is not
a crime of violence unless the relevant documents reveal that
the defendant used violent means to effect his escape. Rather,
in Piccolo, we broke with those circuits that had “held that
any escape, however effected, categorically constitutes a
crime of violence.” Id. at 1088 (emphasis added). We carved
out an exception to these circuits’ broad rule in the case of “an
escapee who leaves a halfway house with permission and fails
to return” and held that escapes of that nature, from that type
of facility, could not be likened “to 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 seri-
ous potential to do so.’ ” Id. at 1089 (distinguishing United
States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994)). As
we observed, the absence of constant surveillance and armed
guards makes the crucial difference in whether an escape con-
stitutes a crime of violence:
We think that the circumstances apparent in a walk-
away escape are of an entirely different order of
magnitude than escapes from jails and prisons. Resi-
dents of halfway houses have certain privileges of
ingress and egress, do not live behind concrete walls
and barbed wire, and are not under constant surveil-
lance by armed guards. Those who leave without
returning do not pose an automatic risk of danger
and therefore do not categorically raise a serious
potential risk of physical harm. Thus, convictions for
walkaway escape could clearly take place “on the
basis of conduct that did not present a serious poten-
tial risk of physical injury to another.”
Id. at 1088 (emphasis added) (quoting Kelly, 422 F.3d at 893);
see also id. at 1089 (acknowledging that “an escapee who
flees a secured facility or the custody of an armed guard pre-
sents a serious risk of injury to himself and others”).
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Here, as the district court noted, “police officer[s] in a jail,
detention center, they’re under a duty to try and prevent
escape” and had an officer seen Savage escaping “that officer
would have had the duty to attempt to prevent it.” That Sav-
age claims he escaped by sneaking through a hole in the fence
when no one was looking is irrelevant. Not only are such
details not contained within the documents we may examine
under the modified categorical approach, but also had law
enforcement officers in charge of the jail realized that Savage
was escaping, any attempt to stop him risked their own safety
and that of others, including Savage himself.
Moreover, the relevant question here is not whether it is
certain that an escape would result in physical injury to
another, but rather whether an escape presented a “serious
potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a)(2) (emphasis added). The Supreme Court recently
explained when interpreting identical language in the Armed
Career Criminal Act that a “potential risk” involves “inher-
ently probabilistic concepts” and “the combination of the two
terms suggests that Congress intended to encompass possibili-
ties even more contingent or remote than a simple ‘risk,’
much less a certainty.” James v. United States, 127 S. Ct.
1586, 1597 (2007). The potential risk of injury to others dur-
ing an escape from a guarded facility is as great whether or
not the escapee is observed and there is an attempt to stop
him. Thus even were the facts of Savage’s “clean getaway”
noticeable under the modified categorical analysis, they
would not bear on the potential for risk of injury to others.
[6] Accordingly, because the appropriate documents estab-
lish that Savage was convicted of escaping from a jail, his
previous conviction qualifies as a “crime of violence” under
§ 4B1.2(a). The sentence the district court imposed is
AFFIRMED.
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