                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         March 18, 2009
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                       TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

 v.                                                            No. 08-3182
                                                   (D. Ct. No. 6:07-CR-10175-MLB-1)
 BRIAN D. TURNER,                                                (D. Kan.)

               Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before TACHA, McKAY, and ANDERSON, Circuit Judges.


       In Chambers v. United States, – U.S. –, 129 S. Ct. 687, 691 (2009), the Supreme

Court held that failure to report to a penal institution does not involve conduct that

presents a serious potential risk of physical injury to another, and therefore a conviction

for failure to report does not qualify as a violent felony under the Armed Career Criminal

Act’s (“ACCA”) residual clause, 18 U.S.C. § 924(e)(2)(B)(ii). Brian D. Turner was

sentenced under the ACCA in part because he has a prior conviction for failing to return

to custody following temporary lawful leave. See Kan. Stat. Ann. § 21-3810(a); § 21-

3809(b)(2). In this direct appeal, Mr. Turner challenges only his sentence, contending


       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
that the ACCA enhancement was inappropriate after Chambers. We agree. After

Chambers, a conviction for failing to return to custody does not qualify as a violent

felony under the ACCA. We therefore remand this matter to the United States District

Court for the District of Kansas with instructions to vacate Mr. Turner’s original sentence

and to resentence him in accordance with this order and judgment and Chambers v.

United States, – U.S. –, 129 S. Ct. 687 (2009).1

                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Circuit Judge




       1
        Both Mr. Turner and the government contend that Mr. Turner’s other conviction
under Kan. Stat. Ann. § 21-3810(a), which apparently involved a so-called “walkaway”
escape from a residential center, is also not a violent felony after Chambers. We do not
reach this question. The ACCA does not apply regardless whether the other conviction
qualifies as a violent felony, and on appeal Mr. Turner has asked only to be resentenced
without application of the ACCA. To the extent the characterization of that conviction
otherwise affects the calculation of Mr. Turner’s sentence, however, the district court
should consider the issue during resentencing.

                                            -2-
