Sunday, April 05, 2015

Case o' The Week: Escapee escapes escape - Simmons and Taylor Analysis (Decamps)

Hon. Judge Wallace Tashima

  A Great Escape, from a dangerous escape.
United States v. Simmons, 2015 WL 1499310 (9th Cir. Apr. 3, 2015), decision available here.

Players: Decision by Judge Tashima, joined by Judges Rawlinson and Clifton. 
  Big win for Federal Public Defender Peter Wolff, District of Hawaii.

Facts: After pleading to drug and gun crimes, Simmons was deemed a “career offender” and sentenced to 240 months. Id. at *1. (It was later lowered due to a Rule 35 motion, a fact that doesn’t affect the issues in the appeal. Id. at *1 & n.1.) Simmons had been convicted of a count of second degree escape, in violation of a Hawaiian statute. Id. Simmons appealed, “asserting that his second degree escape conviction is not a ‘crime of violence.’” Id. at *1.

Issue(s): “Simmons appeals from the judgement of the district court sentencing him to 168 months’ imprisonment. He contends that the district court erred in sentencing him as a career offender because it erroneously concluded that his prior conviction for second degree escape in violation of Hawaii Revised Statutes § 710-1021 was a ‘crime of violence’ as that term is defined by U.S. Sentencing Guidelines . . .  § 4131.1(a).” Id. at *1.

Held: “We agree. We therefore vacate Simmons’ sentence and remand for resentencing.” Id. “Because the risk involving in committing the crime of escape from custody is less than the risk involved in any of the offenses enumerated in § 4B1.2, it is not a crime of violence.” Id. at *8.

Of Note: The statute at issue involved both “active” and “passive” forms of escape, so it does not categorically qualify as a crime of violence. Id. at *2. The district court then used the (abrogated) analysis of the Ninth’s Aguila-Montes de Oca, and applied a modified categorical analysis. Id. at *2. In Decamps, however, the Supreme Court rejected the modified categorical approach for indivisible statutes. Id. at *3. The purpose of the modified categorical approach is not to determine whether the crime as committed constituted a violent felony – instead, it is used to properly identify, among several alternatives, the count of conviction so the court can compare it to the generic offense. Id. Judge Tashima provides a clear primer on the application of Decamps (and then concludes that the statute doesn’t meet the test under the Supreme’s new rule). Id. at *4.

How to Use: What could be better than a Decamps victory beating back Career Offender designation? An opinion that goes on to hold that “escape from custody” is not a crime of violence under § 4B1.2(a)’s residual clause. Id. at *6. Simmons is a welcome rejection of the residual clause to a non-enumerated offense (“escape from custody”), with an honest evaluation of the risks presented by the crime. Id. at *8. Use Simmons’ analysis when fighting the application of the residual clause to other, non-enumerated offense.
For Further Reading: On March 30, USA Today did a piece on Justice Department policies relating to discovery. See Brad Heath, “Rules to Keep Federal Prosecutors in Line Revealed,” USA Today, here.  In response to FOIA requests, 74 U.S. Attorney offices disclosed discovery policies. Id. One of those offices was the Northern District of California. The policy for the United States Attorney’s Office, N.D. Cal, can be found here 
   Notably, in the ND Cal, the document warns, “prosecutors should only conduct an interview of a witness without an agent or other government employee present in extraordinary circumstances.” Id. at 12. Note also the policy's recognition that “Local Rule 16-1 imposes additional discovery obligations on AUSAs in this district.” Id. at 2.

Image of the Honorable Wallace Tashmima from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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