The Failure to Appear at an Illinois State Penitentiary - Research Proposal Example

interoffice memorandum ****** ******* whether a failure to appear at an illonios penitentiary constitutes a violent felony under illonios state law. date: november 14, 2008 ISSUE Does the failure to appear at an Illonios state penitentiary constitute a violent felony so as to subject John Smith to a sentence of 188 months pursuant to 18 U.S.C. SEC 924(e)? SHORT ANSWER Yes, Illinois defines felonious escape not only as “intentionally escaping from a penal institution or from the custody of an employee of that institution” but also as “knowingly failing to report to a penal institution or to report for periodic imprisonment at any time.” 720 ILCS 5/31-6(a). Accordingly, Mr. Smith faces the risk of being sentenced to 188 months pursuant to 18 U.S.C. SEC 924(e). FACTS John Smith has pleaded guilty to being a felon in possession of a firearm in the federal district court. Sentencing is scheduled for January 2, 2009 and sentencing memorandums must be submitted. According to the Attorney General, there were three prior crimes of violence. Two of the crimes alleged to be violent are undisputed. The third is based upon Smith’s failure to report to an Illinois state penitentiary as required after being convicted of robbery and aggravated battery. The position of the Attorney General is that this failure to appear at the penitentiary constitutes a violent felony under Illinois state law and as a result is seeking a sentence of 188 months pursuant to 18 U.S.C. SEC 924(e). DISCUSSION To be considered a "violent felony" for enhanced sentencing, the offense must first be a "crime punishable by a term of imprisonment exceeding one year," or constitute an act of juvenile delinquency involving the carrying or use of a firearm, knife, or destructive device that would be punishable by a term of imprisonment exceeding 1 year if committed by an adult. 18 U.S.C.A. § 924(e)(2)(B), However, 18 U.S.C.A. § 921(a)(20) limits the definition of a "crime punishable by imprisonment for a term exceeding one year" by excluding convictions for certain categories of crime, prohibiting the use of particular convictions not considered felonies under state law, and excluding convictions altered by selected state action. Specifically, 18 U.S.C.A. § 921(a)(20) provides that certain crimes, including offenses pertaining to antitrust violations, restraint of trade, and other unfair business practices, as well as state offenses labeled misdemeanors and punishable by a term of imprisonment of 2 years or less, are excluded from those "crimes punishable by imprisonment for a term exceeding one year." As applied to this client, the statute also provides that what constitutes a crime punishable by imprisonment for a term exceeding 1 year will be determined by the law of the jurisdiction in which the proceedings were held and that certain convictions--namely those which have been set aside or expunged, instances where a pardon has been issued, or where civil rights have been restored--will not be considered convictions for the purpose of sentence enhancement under 18 U.S.C.A. § 924(e)(1) unless these enumerated actions affecting the particular convictions expressly limit the right to ship, transport, possess, or receive firearms. Id. Under 18 U.S.C. § 924(e), the Armed Career Criminal Act (the "ACCA"), a person who violates § 922(g) and who has three previous convictions for a "violent felony," a serious drug offense, or both, is an armed career criminal and subject to imprisonment for a period of not less than fifteen years. Under the ACCA, the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year that has an element of physical force or "presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B); United States v. Rainey, 362 F.3d 733, 734 (11th Cir.2004). In determining whether a particular offense falls within this definition, the Supreme Court has directed trial courts to pursue a categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions. Taylor v. United States, 495 U.S. 575, 600 (1990)). Against that backdrop, Illinois defines felonious escape not only as “intentionally escap[ing] from a penal institution or from the custody of an employee of that institution” but also as “knowingly fail[ing] to report to a penal institution or to report for periodic imprisonment at any time.” 720 ILCS 5/31-6(a). Mr. Smith’s escape was in the latter category-failing to report to a penal institution. As an original matter, one might have doubted whether failing to report to prison, as distinct from escaping from a jail, prison, or other form of custody, was a crime that typically or often “involves conduct that presents a serious potential risk of physical injury to another.” United States v. Golden, 466 F.3d 612, 616-17 (7th Cir.2006) (Williams, J., dissenting). You could show up an hour late (without an excuse) and be guilty of a felony that could result in your receiving a 15-year mandatory minimum sentence under the Armed Career Criminal Act. Had the defendant been sentenced without the enhancement, his guidelines sentencing range would have been 130 to 162 months. See U.S.S.G. §§ 2K2.1(a)(2), (b)(5), 3C1.2, 3E1.1(a), (b). In U.S. v. Champs, 473 F.3d 724 (2007), the Court noted that there should be a difference between traditional felonies and failure to appear. Id. at 726. However, the court deferred to the majority opinion in United States v. Bryant, 310 F.3d 550 (7th Cir.2002), and “refused to carve the Illinois escape statute at the joint, as it were, but held instead that any violation of the statute is a crime of violence for purposes of the Act.” U.S. v. Taylor, 473 F.3d., at 726. The Champs Court noted that: “The other courts of appeals, except the D.C. and Ninth Circuits, are in accord. United States v. Winn, 364 F.3d 7 (1st Cir.2004); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States v. Jackson, 301 F.3d 59, 63 (2d Cir.2002); United States v. Turner, 285 F.3d 909, 915-16 (10th Cir.2002); United States v. Gay, 251 F.3d 950 (11th Cir.2001) (per curiam); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001); United States v. Ruiz, 180 F.3d 675 (5th Cir.1999); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999); United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir.1997). The D.C. Circuit reserved the issue in United States v. Thomas, 333 F.3d 280, 282-83 (D.C.Cir.2003). See also United States v. Adkins, 196 F.3d 1112, 1119 (10th Cir.1999) (McKay, J., concurring), and Judge Rovners concurring opinion in our Golden case. The Ninth Circuit ruled that a peaceful failure to return, followed by the defendants turning himself in rather than being recaptured, is not a crime of violence. United States v. Piccolo, 441 F.3d 1084 (9th Cir.2006).” Id. at 726. The Taylor Court noted “We shall adhere to the precedents for now. But 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 or fail to return from furloughs or to halfway houses”. U.S. v. Champs 473 F.3d 724, 727 (2007). Notably, while the court acknowledged its’ disagreement with this application, it appears that it merely adhered to the other cases because of the close proximity between the dates of its’ decision and the dates of previous cases. Id. at 728. Thus, because this case is arising two years after the Taylor decision, perhaps at this time the court would be willing to explore overruling prior decisions. CONCLUSION As it currently stands, our client will be sentenced pursuant to the guidelines offered by the Attorney General. However, now would be a great opportunity for this firm, to handle the first case overruling prior decisions because the time is ripe. Additionally, it is respectfully suggested that we engage the Illinois Public Defense fund to compose and report to the court a study analyzing the so called “violence” in failing to appear, or return to a criminal facility. Read More