Escaping a rigid analysis: the shift to a fact-based approach for crime of violence inquiries involving escape offenses.

• Author: Castor, Timothy W.

INTRODUCTION

The introduction of the U.S. Sentencing Guidelines to the federal criminal justice system in 1987 arose in large part due to the call for more uniformity in sentencing. (1) The Guidelines have sought to meet the overarching goal of limiting disparity in sentencing and to impose harsher sentences on repeat offenders. (2) The pursuit of these two objectives has greatly influenced the manner in which federal courts assess criminal convictions. For instance, several federal appellate courts, in determining whether past or present convictions constitute crimes of violence under the career offender provision of the Guidelines, have employed a categorical analysis. (3) Rather than examining the conduct underlying the conviction in question to assess whether the defendant deserves an enhanced sentence, these courts consider only the "statutory definition" of the offense. (4) This approach has resulted in the imposition of lengthy sentences for recidivist offenders regardless of whether their criminal conduct actually posed a serious threat to the well-being of others. This result is especially troubling when escape offenses are at issue, for the vast majority of escapes are "walk-aways," which do not inherently pose a serious risk of harm to others. (5)

In the recent decision of United States v. Thomas, (6) the D.C. Circuit questioned the categorical method of analysis several other circuit courts have employed when inquiring as to whether an escape offense constitutes a crime of violence under the career offender provision of the Guidelines. (7) Specifically, the D.C. Circuit, in declining to follow the approach adhered to by its fellow federal appellate courts, suggested that the application of the categorical method of analysis would result in incorrect outcomes. (8) The set of facts in the instant case, however, did not necessitate that the D.C. Circuit propose an alternative method of analysis, as the court asserted that the application of any approach in this instance would have rendered the same result. (9) Even so, the D.C. Circuit's hesitance to follow the trend set by several other jurisdictions sets the stage for the introduction of a different method of analysis when considering crime of violence inquiries involving escape offenses.

This Note will assess the utility of the categorical approach, as well as the similar intermediate approach, and draw comparisons with a proposed fact-based approach in order to demonstrate that the fact-based approach proves most effective when conducting crime of violence inquiries involving escape offenses. Part I will provide a brief overview of the career offender provision of the U.S. Sentencing Guidelines. More specifically, it will examine the meaning of the phrase "crime of violence" in the career offender provision, as defined by the Guidelines, fleshed out by the commentary to the Guidelines, and interpreted by the federal judiciary. Part II will consider the elements of an escape offense and the current treatment of escape offenses in crime of violence inquiries. A basic understanding of an escape offense is essential to determine whether courts need to alter the manner in which they carry out these crime of violence analyses. Part III will argue for the rejection of the categorical and intermediate approaches, and for adherence to a fact-based analysis when assessing whether an escape offense constitutes a crime of violence. This argument rests heavily on the fact that, because not all escape offenses inherently pose a serious risk of harm to others, the use of a fact-based approach renders the most appropriate sentence determinations.

1. THE MEANING OF "CRIME OF VIOLENCE"

   1. Overview of the U.S. Sentencing Guidelines

      In response to ever-growing concern over the marked disparities in criminal sentencing, (10) Congress passed legislation in 1984 that created the U.S. Sentencing Commission and supplied the Commission with the power to formulate a uniform set of sentencing guidelines that the federal court system would adopt. (11) The byproduct of this legislation, the U.S. Sentencing Guidelines, took effect on November 1, 1987. (12)

      The centerpiece of the U.S. Sentencing Guidelines is a sentencing grid that consists of forty-three offense levels situated on the vertical axis and six criminal history categories located on the horizontal axis. (13) A sentence range appears at each point on the grid where a particular offense level intersects with a particular criminal history category. (14) Absent "unusual circumstances," (15) the court must sentence the defendant to a term that falls within this range. (16) In order to determine the relevant sentencing range in a particular instance, a court must follow the Guidelines' application instructions. (17) These instructions first direct the court to determine the base offense level applicable to the crime in question. (18) The court then proceeds to adjust this offense level upward or downward depending upon the existence or absence of a variety of factors, including whether the defendant has a criminal history. (19)

   2. The Career Offender Provision

      In accordance with congressional directive, (20) the Guidelines include a provision echoing the notion that particular repeat criminal offenders should receive sentences that either meet or approach the maximum penalty authorized under the relevant statute. (21) Specifically, the career offender provision applies to recidivist offenders over eighteen years of age who both: (1) currently face a conviction in federal court for a "crime of violence" or "controlled substance offense;" and (2) previously received felony convictions in either state or federal court for two or more crimes of violence or controlled substance offenses. (22)

      If the career offender provision applies in a particular case, the sentencing court places the defendant in criminal history category VI, the highest such category. (23) Next, the court determines the offense level by looking to the defendant's "offense statutory maximum." (24) The court then refers to the sentencing grid to ascertain the applicable sentencing range. (25)

   3. Textual Definition of "Crime of Violence"

      According to the text of the Guidelines, the term "crime of violence" refers to any offense under federal or state law carrying a potential prison sentence of at least one year that either "has an element ... of physical force" against another person or "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." (26)

      The commentary accompanying section 4B1.2 if the Guidelines provides further insight into the meaning of a crime of violence. First, the commentary enumerates ten offenses that categorically constitute a crime of violence. (27) Second, the commentary explains that any offense not included in the aforementioned list is a crime of violence if "that offense has as an element ... of physical force" against another person or if "the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted ... by its nature, presented a serious potential risk of physical injury to another." (28) Although not part of the Guidelines themselves, this commentary certainly carries significant weight, as the Supreme Court held that commentary to the U.S. Sentencing Guidelines that interprets or explains a provision is "authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." (29)

   4. Courts' Interpretation of "Crime of Violence"

      Despite the guidance seemingly provided by the Guidelines and the accompanying application notes, courts have struggled in applying the crime of violence standard to offenses not enumerated in the Guidelines. As a result, several different approaches have developed across jurisdictions. One method of analysis employed to determine whether an offense constitutes a crime of violence is categorical. Under this approach, which stems from the Supreme Court's ruling in Taylor v. United States, (30) the court considers only the statutory definition of the offense in question. (31) For example, upon examining the Tennessee statute concerning the offense of assault with intent to commit sexual battery, the Sixth Circuit concluded that, because the statute deals with circumstances that may or may not pose a serious risk of harm, the court could not categorically deem the instant offense a crime of violence. (32)

      When the statute in question does not clearly indicate that the instant offense amounts to a crime of violence, a court may conduct a more thorough inquiry. (33) This alternative method of analysis, sometimes referred to as the "intermediate" approach, (34) not only examines the statutory elements, but also considers the information laid out in the indictment (35) and, in some instances, other "easily produced and evaluated court documents." (36) This approach most closely mirrors the commentary to the Guidelines, as the conduct "expressly charged" (37) seemingly refers to information presented in the indictment. (38)

      A final method of analysis is fact-based...