                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0042p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                   X
                            Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                        No. 06-6056
          v.
                                                    ,
                                                     >
                                                    -
                        Defendant-Appellant. -
 JERRY RAY OAKS,
                                                    -
                                                   N
              On Remand from the United States Supreme Court to the
          United States District Court for the Eastern District of Tennessee.
                  No. 04-00037—J. Ronnie Greer, District Judge.
                                    Submitted: May 1, 2008
                            Decided and Filed: February 9, 2009
                                                                                            *
       Before: KENNEDY and MARTIN, Circuit Judges; HOOD, District Judge.

                                      _________________

                                           COUNSEL
ON BRIEF: Salvatore C. Adamo, LAW OFFICE OF SALVATORE C. ADAMO,
Phillipsburg, New Jersey, for Appellant. Robert M. Reeves, ASSISTANT UNITED
STATES ATTORNEY, Greeneville, Tennessee, for Appellee.
                                      _________________

                                            OPINION
                                      _________________

        BOYCE F. MARTIN, JR., Circuit Judge. Defendant Jerry Ray Oaks pleaded
guilty to being a felon in possession of a firearm and the district court in the Eastern
District of Tennessee sentenced him to 120 months of incarceration and five years of
supervised release, entering the judgment on August 9, 2006. He appealed his sentence,



        *
        The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.


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No. 06-6056         United States v. Oaks                                             Page 2


in the first instance, challenging, in part, the district court’s use of his prior conviction
for felony escape to support his sentence under the Armed Career Criminal Act, 18
U.S.C. § 924(e). Oral argument before us was waived and we affirmed the sentencing
court’s judgment on May 14, 2008. On January 21, 2009, the Supreme Court granted
Defendant’s application for a writ of certiorari, vacated our judgment, and remanded the
case to us for reconsideration in light of its decision in Chambers v. United States, 555
U.S. —, 129 S. Ct. 687 (2009). Oaks v. United States, — U.S. —, — S. Ct. —, 2009
WL 129082 (2009).

        In Chambers, the Supreme Court held that “failure to report,” although described
in an Illinois statute criminalizing “escape,” was a separate crime and did not amount to
a “violent felony” under the Armed Career Criminal Act. 555 U.S. —, slip op. at 4.
Tennessee’s definition of “escape,” like the Illinois statute at issue in Chambers, “places
together in a single numbered statutory section several different kinds of behavior,” id;
compare TENN. CODE ANN. § 39-16-601(3) (2009) (defining “[e]scape” as the
“unauthorized departure from custody or failure to return to custody following
temporary leave for a specific purpose or limited period . . .”) (emphasis added) with 720
ILL. COMP. STAT. 5/31-6(a) (2009) (defining “escape” to include, inter alia, “knowingly
fail[ing] to report to a penal institution or to report for periodic imprisonment at any
time or knowingly fail[ing] to return from furlough or from work and day release . . .
.”) (emphasis added).

        Here, we have reviewed the district court’s rulings, which indicate that it found
that Oaks’s felony escape conviction followed a charge of “knowingly escaping from the
custody of the Carter County Sheriff’s Department while in custody of the Carter County
Sheriff’s Department, a penal institution . . . .” United States v. Oaks, No. 2:04-CR-37,
Order at 3 (E.D. Tenn. May 13, 2005) (citing Indictment No. 15999, Criminal Court,
Cater County, Tenn.). Under the Tennessee Code, “penal institution” is “any institution
or facility use to house or detain a person,” TENN. CODE. ANN § 39-16-601(4). Thus, we
are unable to determine whether, at the time of his escape, Oaks was held in “secure
custody,” “law enforcement custody,” or “nonsecure custody,” see Chambers, 555
No. 06-6056        United States v. Oaks                                          Page 3


U.S.— (slip. op. at 10, App’x B) (Report on Federal Escape Offenses in Fiscal Years
2006 and 2007, p. 7, fig. 1 (Nov. 2008)), and whether the escape qualifies as “violent”
because it involves “serious risk of physical injury.” 18 U.S.C. § 924(e)(2)(B)(ii);
Chambers, 555 U.S. — (slip. op. at 6-8) (considering empirical evidence of how often
different types of “escapes” led to injury).

       Accordingly, we REMAND to the district court for a determination of the type
of facility and level of security involved in the “custody of the Carter County Sheriff’s
Department” at the time of Oaks’s escape. After the district court has made this
determination, this Court will issue further instructions.
