08-2247-cr
United States v. Kelly
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
"SUM M ARY ORDER"). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 3 rd day of March, two thousand ten.

PRESENT:         GUIDO CALABRESI,
                 REENA RAGGI,
                                          Circuit Judges,
                                         *
                 JOHN G. KOELTL,
                                          District Judge.
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UNITED STATES OF AMERICA,
                                          Appellee,
                         v.                                            No. 08-2247-cr

HOWARD D. KELLY,
                                          Defendant-Appellant.
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APPEARING FOR APPELLANT:                          TINA SCHNEIDER (Diana D. Parker, New
                                                  York, New York, on the brief), Portland, Maine.

APPEARING FOR APPELLEE:                           MONICA J. RICHARDS, Assistant United States
                                                  Attorney, for Kathleen M. Mehltretter, United
                                                  States Attorney for the Western District of New
                                                  York, Buffalo, New York.


           *
         District Judge John G. Koeltl of the United States District Court for the Southern
District of New York, sitting by designation.
       Appeal from the United States District Court for the Western District of New York

(David G. Larimer, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of conviction entered on May 6, 2008, is AFFIRMED

       Defendant Howard Kelly appeals from his conviction after a jury trial on one count

of escape from a halfway house in violation of 18 U.S.C. §§ 751(a) and 4082(a) on grounds

of (1) constructive amendment of the indictment and (2) a failure properly to instruct the jury

on the element of willfulness. Kelly also challenges his 54-month sentence, asserting

procedural error in the district court’s calculation of his Guidelines range. In reviewing these

challenges, we assume the parties’ familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision to affirm.

1.     Constructive Amendment

       To demonstrate constructive amendment, a defendant must show that the proof at trial

“so altered an essential element of the charge that, upon review, it is uncertain whether the

defendant was convicted of conduct that was the subject of the grand jury’s indictment.”

United States v. Milstein, 401 F.3d 53, 65 (2d Cir. 2005) (internal quotation marks omitted);

United States v. Clemente, 22 F.3d 477, 482 (2d Cir. 1994) (collecting cases). Constructive

amendment is a per se violation of the Fifth Amendment requiring reversal regardless of

whether the error prejudiced the defendant. See United States v. Ansaldi, 372 F.3d 118,



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126-27 (2d Cir. 2004); United States v. Clemente, 22 F.3d at 482. In general, we review a

constructive amendment challenge de novo. See United States v. Rigas, 490 F.3d 208, 225

(2d Cir. 2007). The government submits that where, as here, the defendant fails to object

below, our review is limited to plain error by Fed. R. Crim. P. 52(b). See United States v.

Vebeliunas, 76 F.3d 1283, 1291 (2d Cir. 1996) (applying plain error standard to constructive

amendment claim in absence of objection). In fact, Kelly’s constructive amendment claim

fails under either standard of review.

       The indictment charged Kelly with violating 18 U.S.C. §§ 751(a) and 4082(a). 2 It

stated that Kelly “did knowingly, willfully and unlawfully fail to remain within the extended

limits of his confinement and did escape from the Volunteers of America, Inc. Halfway


       2
           Section 751(a) provides, in pertinent part:

           Whoever escapes or attempts to escape from the custody of the Attorney
           General or his authorized representative, or from any institution or facility
           in which he is confined by direction of the Attorney General . . . shall, if the
           custody or confinement is by virtue of an arrest on a charge of felony, or
           conviction of any offense, be fined under this title or imprisoned not more
           than five years, or both . . . .

Section 4082(a) provides that

           [t]he willful failure of a prisoner to remain within the extended limits of his
           confinement, or to return within the time prescribed to an institution or
           facility designated by the Attorney General, shall be deemed an escape from
           the custody of the Attorney General punishable as provided in [18 U.S.C.
           § 751].



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House, Rochester, New York, an institutional facility in which he was lawfully confined at

the direction of the Attorney General . . . .” Indictment at 1. Kelly submits that the district

court constructively amended the indictment by allowing conviction on proof that he failed

to report to the halfway house rather than requiring proof that he escaped from a halfway

house in which he had been confined at the direction of the Attorney General. In short, Kelly

argues that because he never surrendered to the halfway house as directed, he was never

confined there and did not escape therefrom. We disagree that the proof at trial effected a

constructive amendment.

       We have “consistently permitted significant flexibility in proof, provided that the

defendant was given notice of the core of criminality to be proven at trial.” United States v.

Rigas, 490 F.3d at 228 (internal quotation marks and footnote omitted) (emphasis in

original). Here, the indictment gave Kelly clear notice of the “core of criminality” alleged

– specifically, his failure “to remain within the extended limits of his confinement” and his

“escape from the Volunteers of America, Inc. Halfway House.” Indictment at 1. The trial

evidence did not amend this charge. Rather, it showed that the limits of Kelly’s confinement

had been extended by a brief furlough to include the route from federal prison in Fort Dix,

New Jersey, to the halfway house in Rochester. Indeed, Kelly signed the following statement

as a condition of the furlough:

       I understand that if approved, I am authorized to be only in the area of the
       destination shown above and at ordinary stopovers or points on a direct route


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       to or from that destination. I understand that my furlough only extends the
       limits of my confinement and that I remain in the custody of the Attorney
       General of the United States. If I fail to remain within the extended limits of
       this confinement, it shall be deemed as escape from the custody of the
       Attorney General, punishable as provided in [18 U.S.C. § 751].

J.A. at 378.

       The Supreme Court has explained (1) that to escape is simply to “absent[] oneself

from custody without permission,” United States v. Bailey, 444 U.S. 394, 407 (1980); (2) that

custody need not entail physical restraint, see Jones v. Cunningham, 371 U.S. 236, 243

(1963) (holding that prisoner on parole subject to conditions significantly restraining his

freedom is in “custody” of parole board for purposes of habeas challenge); see also United

States v. Sack, 379 F.3d 1177, 1179 (10th Cir. 2004) (observing that for purposes of escape

statute, custody “may be minimal and, indeed, may be constructive” (internal quotation marks

omitted)); and (3) that escape is a continuing offense, see United States v. Bailey, 444 U.S.

at 413. Moreover, § 4082(a) specifically defines “escape” to include any “willful failure of

a prisoner to remain within the extended limits of his confinement, or to return within the

time prescribed to an institution or facility designated by the Attorney General.” Here, proof

of Kelly’s failure to remain within the extended confinement of his furlough, which specified

his return to institutional custody at the Volunteers of America halfway house, is fairly

viewed as proof of “escape” from the custody of the Attorney General generally, and from




                                              5
the halfway house in particular, “substantially correspond[ing]” to the conduct alleged. See

United States v. Rivera, 415 F.3d 284, 287 (2d Cir. 2005) (internal quotation marks omitted).

       In sum, we reject the argument that only proof of an escape from the halfway house

sometime after Kelly’s surrender to that institution could satisfy the indictment. Accordingly,

we conclude that Kelly’s constructive amendment challenge is without merit.

2.     The Challenged Jury Charge

       Kelly argues that the district court erred in failing to instruct the jury that the

government was required to prove the willfulness required by 18 U.S.C. § 4082(a). Because

Kelly did not object to the jury charge below, our review is limited to plain error. See Fed.

R. Crim. P. 52(b); United States v. Weintraub, 273 F.3d 139, 145 (2d Cir. 2001) (identifying

plain error standard). We detect no such error here.

       In general, willfulness is proved by evidence that a defendant acted voluntarily and

with knowledge that his conduct was unlawful, even if he did not know the specific statute

violated. See, e.g., Bryan v. United States, 524 U.S. 184, 193-96 (1998) (holding in context

of firearms statute that knowledge of conduct’s general unlawfulness, rather than knowledge

of particular statute, satisfied willfulness requirement); United States v. Bursey, 416 F.3d

301, 309 (4th Cir. 2005) (same in context of statute prohibiting willful entry or refusal to

leave restricted area during presidential visit); United States v. Whab, 355 F.3d 155, 162 (2d

Cir. 2004) (affirming on plain error review jury instruction that awareness of generally



                                              6
unlawful nature of conduct satisfied willfulness requirement in statute barring false

statements to government agents).3 Only in rare cases where the line between innocent and

culpable conduct is particularly difficult to ascertain, as in cases involving “highly technical

statutes that present[] the danger of ensnaring individuals engaged in apparently innocent

conduct,” Bryan v. United States, 524 U.S. at 194, does willfulness require a specific intent

to violate a particular law. This case does not involve any such statute. The wrongfulness

of leaving criminal custody without permission is readily apparent from the act itself.

Consequently, the district court’s repeated instruction that the jury must find beyond a

reasonable doubt that Kelly acted with knowledge that “he did not have permission to leave

the federal custody that restrained him,” Trial Tr. at 344, was sufficient to ensure the jury’s

understanding of the willfulness requirement.

       To the extent the district court’s lone statement that willfulness requires “the specific

intent to do something the law forbids” might have prompted jurors to apply a stricter

standard than necessary – which we doubt – the mistake was hardly plain error, as it only

inured to Kelly’s benefit by increasing the government’s burden. Id. at 342-43; see United


       3
        In United States v. George, 386 F.3d 383 (2d Cir. 2004), a case interpreting 18
U.S.C. § 1542’s prohibition against “willfully and knowingly” making a false statement in
a passport application, we indicated that even knowledge of general unlawfulness is
unnecessary under statutes criminalizing conduct whose wrongfulness is obvious from the
surrounding context. See id. at 395 (observing that that because “no conceivable meritorious
reason exists for knowingly submitting false information on a passport application,”
conviction did not require defendant’s “awareness of the generally unlawful nature of his or
her conduct”).

                                               7
States v George, 386 F.3d 383, 398 (2d Cir. 2004) (observing that where jury convicts

defendant under “more exacting mens rea standard than necessary,” it follows that lesser

standard was satisfied).

3.     The Sentencing Challenge

       U.S.S.G. § 2P1.1(a)(1) provides for a base offense level of 13 for escape, but the

Guideline affords a downward adjustment of four levels for escape from a halfway house

unless the defendant commits a felony while away from the designated facility. See U.S.S.G.

§ 2P1.1(b)(3). Kelly submits that the district court erred in denying him the four-level

reduction without making a factual finding that he had committed the requisite felony during

his escape. Where, as here, a defendant does not object to the denial of an offense-level

reduction or to the court’s failure to make specific factual findings, we review only for plain

error. See United States v. Espinoza, 514 F.3d 209, 211-12 (2d Cir. 2008).

       We have held that “a district court satisfies its obligation to make the requisite specific

factual findings when it explicitly adopts the factual findings set forth in the presentence

report.” United States v. Carter, 489 F.3d 528, 539 (2d Cir. 2007). Here, the district court

openly based its calculation of Kelly’s Guidelines range on the PSR, but it failed to specify

which facts alleged in the report supported its implicit conclusion that Kelly committed a

felony during his escape. Indeed, while the PSR detailed charges pending in Maine arising

from Kelly’s use of false identification to commit felony bank fraud in violation of 18 U.S.C.



                                                8
§ 1028(a)(7), the district court expressly declined to find that Kelly had committed the

charged crimes, commenting that they were “matters for another day.” Sentencing Tr., May

1, 2008, at 9.

       In light of the foregoing, we are obliged to conclude that the district court erred in

failing to make factual findings necessary to deny Kelly a § 2P1.1(b)(3) offense-level

reduction. No remand is required, however, because the required fact is conclusively

established by Kelly’s subsequent guilty plea in Maine to felony bank and mail fraud crimes

committed during his escape. We take judicial notice of Kelly’s plea, to which his lawyer

stipulated during oral argument, as it is “capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).

The plea permits us to conclude that any error with respect to § 2P1.1(b)(3) findings was

clearly harmless. See United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (applying

harmless error analysis to Guidelines calculation challenge).

4.     Conclusion

       We have considered all of Kelly’s remaining arguments on appeal and conclude that

they are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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