U.S.A v. Parks

705 F.Supp.2d 1107

UNITED STATES of America, Plaintiff,v.Jose PARKS, Defendant.

Case No. 4:06CR00326 ERW.

United States District Court,

E.D. Missouri,

Eastern Division.

April 9, 2010.

Thomas J. Mehan, Office of U.S. Attorney, St. Louis, MO, for Plaintiff.

MEMORANDUM AND OPINION¹

E. RICHARD WEBBER, District Judge.

This matter is before the Court on the Eighth Circuit Court of Appeals' ruling affirming in part, reversing in part, and remanding this case for re-sentencing proceedings. The Mandate of that Court was issued April 28, 2009, and a hearing was conducted on June 11, 2009, where the Government was represented by Assistant United States Attorney Thomas J. Mehan and Mr. Parks was present with counsel, Assistant Federal Public Defender Lucille G. Liggett. The Court heard arguments and requested that Mr. Parks remain in the District pending re-sentencing. On June 18, 2009, the Court entered a Memorandum and Order, and on June 29, 2009, with Mr. Parks present with counsel and the Government present by Assistant United States Attorney, additional arguments were heard. The Court is persuaded by the argument of Ms. Liggett that the Court's Memorandum and Opinion is flawed, in part, in its content and lack of analysis, and, accordingly, the June 18, 2009 Memorandum and Opinion is vacated.

I. BACKGROUND

Mr. Parks entered a plea of guilty to a one-count indictment charging him with Possession With Intent to Distribute Heroin on August 11, 2006. Mr. Parks appeared for sentencing on November 27, 2006. Because the Court found that Mr. Parks' prior conviction for Escape From Confinement in case no. 891-02612 qualified him as a Career Offender under United States Sentencing Guidelines § 4B1.1, his sentence was fashioned at 151-months imprisonment in the United States Bureau of Prisons. The Court declared that his Total Offense Level was 29 and his Criminal History Category was VI. In the absence of a finding that he was a Career Criminal, his Total Offense Level would be 15, his Criminal History Category would be VI, and his sentencing range would have been 41-51 months.

II. DISCUSSIONA. The Eighth Circuit Opinion

Mr. Parks' conviction and sentencing was originally affirmed in United States v. Jose Parks (Parks I), 249 Fed.Appx. 484 (8th Cir.2007). On remand from the United States Supreme Court Parks v. United States (Parks II), ---U.S. ----, 129 S.Ct. 994, 173 L.Ed.2d 285 (2009), the Eighth Circuit panel, in view of Chambers v. United States, --- U.S. ----, ----, 129 S.Ct. 687, 693, 172 L.Ed.2d 484 (2009), concluded that whether a walkaway escape is a violent felony under Chambers and Begay “remains an open question” and “[t]he record is not sufficiently developed for us to make this determination because the District Court, ... limited its factual findings regarding Parks's escape conviction to the brief description of the offense in Parks's PSR.” Accordingly, the Eighth Circuit remanded Parks' case for re-sentencing, and instructed “the district court to analyze Parks's prior escape conviction under § 575.210 in light of Chambers and Begay.”

B. Chambers v. United States, 129 S.Ct. 687 (2009).

At Deondery Chambers' sentencing, the sentencing court counted a prior conviction of “failure to report” for penal confinement as a predicate offense to qualify Mr. Chambers, with other prior offenses, as an Armed Career Criminal which carries a mandatory minimum fifteen-year sentence. The Supreme Court analyzed an Illinois statute which categorized “several different kinds of behavior”:

(1) escape from a penal institution, (2) escape from the custody of an employee of a penal institution, (3) failing to report to a penal institution, (4) failing to report for periodic imprisonment, (5) failing to return from furlough, (6) failing to return from work and day release, and (7) failing to abide by the terms of home confinement.

id. at 691. The Court noted,

[t]he behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody. See Begay v. United States, 553 U.S. 137, 144, 128 S.Ct. 1581, 1586, 170 L.Ed.2d 490 (2008). Moreover, the statute itself not only lists escape and failure to report separately (in its title and its body) but also places the behaviors in two different felony classes (Class Two and Class Three) of different degrees of seriousness.

Id. Furthermore, the Court stated that “failure to report” does “not have ‘as an element the use, attempted use, or threatened use of physical force against the person of another.’ § 924(e)(2)(B)(i).” ²

Id. at 691. The Court reasoned that failure to report conceptually amounts to a crime of inaction, not purposeful, violent and aggressive conduct. The Court noted, “[t]o the contrary, an individual who fails to report would seem unlikely, not likely, to call attention to his whereabouts by simultaneously engaging in additional violent and unlawful conduct.” Id. at 692.

C Begay v. United States, 128 S.Ct. 1581 (2008).

The Supreme Court in Begay decided that the offense of “driving under the influence of alcohol” is not a “violent felony” under 18 U.S.C. § 924, and consequently, the special mandatory minimum sentence of fifteen-years imprisonment was wrongly imposed. The applicable New Mexico statute has no provision similar to § 924(e)(i), which includes the language, “has as an element the use, attempted use, or threatened use of physical force against the person of another[.]” Neither did the Court find that the New Mexico DUI statute, involved “conduct that presents a serious potential risk of physical injury to another[.]” 18 U.S.C. § 924(e)(ii). The Court observed that driving under the influence statutes do not insist upon purposeful, violent and aggressive conduct, “rather, they are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have any criminal intent at all.” Id. at 1586-87. The Court noted the obvious, “the Armed Career Criminal Act focuses upon the special danger created when a particular type of offender-a violent criminal or drug trafficker-possesses a gun.” Id. at 1587.

D. United States v. Williams, 537 F.3d 969 (8th Cir.2008)

Williams was sentenced to an enhanced sentence because the sentencing judge erroneously concluded that two of Williams' prior convictions, auto theft and auto tampering, were violent felonies under Missouri law, which made him eligible to be sentenced under the Armed Career Criminal Act. The Eighth Circuit Court observed that “[t]he commentary to both § 2K2.1 and § 4B1.1 refer to § 4B1.2(a), which provides a definition of a “violent felony” in the Armed Career Criminal Act. Compare U.S.S.G. § 4B1.2(a) with 18 U.S.C. § 924(e)(2)(B).” The Court found no distinction between a “crime of violence” and a “violent felony.” The Court's analysis turned to first deciding if auto theft and auto tampering were crimes of violence under the “otherwise” clause of the above mentioned Act and United States Sentencing Guidelines. The language of that clause states that it “involves conduct that presents a serious potential risk of physical injury to another.” To fall within the “otherwise clause,” a crime must pose a similar degree of risk of physical injury as the example crimes, e.g. burglary, arson, extortion, and crimes involving use of explosives, and be similar in kind to the example crimes. A crime may present some degree of risk of physical injury as the example crimes and not be covered by the “otherwise clause,” unless it is similar in kind to the example crimes. To be similar in kind to the example crimes, it “should typically involve ‘purposeful, violent, and aggressive conduct.’ ” Id. at 972 (citation omitted). The Court stated that the prior analysis under United States v. Sun Bear, 307 F.3d 747 (8th Cir.2002), focused solely on the degree of risk of physical injury associated with the crimes involved and, not whether they were similar in kind to the example crimes. The Court also stated that it is necessary to ask “whether auto theft involves conduct that is similarly ‘purposeful, violent and aggressive’ when compared to the conduct involved in auto thefts, closest analogue among the example crimes.” Id. at 972. (citation omitted). A footnote cautions “when analyzing a predicate felony, Begay reiterates that courts should consider how the law defines the crime, not how a crime might be committed on a particular occasion.” Id. at 973 n. 1. Furthermore, the Court observed that “Begay emphasized that the ‘otherwise’ clause should only encompass crimes show[ing] an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger” Id. at 973. (citation omitted).

The Court in Williams explained that in its analysis, the statutory definition set forth three distinct offenses and, that to determine the closest analog among the examples, it was necessary to “look beyond the complete statutory definition of the crime to discover which part of the statute Williams violated.” But, the Court limited its examination to the “charging document, the terms of the plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or some comparable judicial record of this information.” Id. at 973 (citation omitted).

To assist the District Court on remand, the Eighth Circuit panel then made a differential analysis, concluding that auto theft by deception was too unlike the example crimes. The Court, however, believed that auto theft by coercion was akin to a crime of extortion because of the inherent threat of violence and, therefore, it met the two-part Begay test. The Court did not believe that auto theft without consent was a crime of violence.

E. The Relevant Missouri Statutes

Mo.Rev.Stat. § 575.210 Escape or attempted escape

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