                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   April 3, 2009
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 08-1161
          v.                                             (D. Colorado)
 DARNELL YOUNG,                               (D.C. No. 1:07-CR-00333-LTB-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, McKAY, and HARTZ, Circuit Judges.


      Defendant Darnell Young pleaded guilty in the United States District Court

for the District of Colorado to a charge of felon in possession of a firearm. See

18 U.S.C. § 922(g)(1). In calculating his offense level under USSG

§ 2K2.1(a)(2), the court determined that he had two prior convictions for “crimes

of violence”—namely, a third-degree assault and an escape. On appeal

Mr. Young contends that neither prior conviction should have been counted. He

argues that (1) his assault offense did not qualify because he had not been



      *
        This order and judgment is not binding precedent except under the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.
sentenced for that offense when he committed the instant offense and (2) under

the Supreme Court’s recent decision in Chambers v. United States, 129 S. Ct. 687

(2009), the escape for which he was convicted was not a “crime of violence.”

Mr. Young also contends that the district court erroneously denied his motion for

a downward departure. We hold that (1) the district court properly considered

Mr. Young’s assault offense because it is immaterial under § 2K2.1(a)(2) that he

was sentenced for the assault after he committed the instant offense; (2) as the

parties agreed at oral argument, further district-court proceedings are necessary to

determine whether Mr. Young’s escape offense was a “crime of violence” under

Chambers; and (3) because the district court presumed that it had authority to

depart downwards, we cannot review the denial of Mr. Young’s downward-

departure motion. We have jurisdiction under 28 U.S.C. § 1291 and remand for

resentencing.

I.    BACKGROUND

      Understanding Mr. Young’s claims on appeal requires a timeline of events.

In 1997 Mr. Young was convicted of accessory to first-degree sexual assault and

sentenced to three years in a community correctional facility. About two weeks

after he began serving that term, he “left the facility and was placed on escape

status.” R. Vol. III at 9. The record does not establish how Mr. Young “left the

facility”—we do not know, for example, whether he broke free, walked out, or

failed to report after a furlough. Shortly thereafter, Mr. Young was convicted in

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Colorado state court of the crime of escape and was sentenced to two and one-half

years’ imprisonment for that offense. On October 19, 2006, he committed the

crime of assault; he pleaded guilty on February 13, 2007. Then on July 1, 2007,

before he had been sentenced on the assault offense, he committed the offense of

felon in possession of a firearm. Mr. Young was sentenced for the assault

conviction on August 15, 2007. He pleaded guilty to the firearm charge on

February 20, 2008, and received the challenged sentence for that offense on

April 25, 2008.

      At sentencing for the firearm offense, the district court adopted the

Guidelines calculation recommended in the probation office’s presentence report

(PSR). The PSR applied USSG § 2K2.1(a)(2), which sets the base offense level

at 24 for possession of a firearm in violation of § 922(g)(1) if the defendant has

previously sustained two or more “felony convictions of either a crime of

violence or a controlled substance offense.” USSG § 2K2.1(a)(2); see id. cmt.

(this section covers, inter alia, violations of §§ 922(a)–(p)). The PSR concluded

that § 2K2.1(a)(2) applied because Mr. Young had been convicted of an escape

and an assault, both felony crimes of violence, before committing the firearm

offense. The PSR reduced Mr. Young’s base offense level by three levels (to 21)

in consideration of his acceptance of responsibility, and assigned him a criminal-

history category of VI. This resulted in a Guideline range of 77-96 months.




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      At the sentencing hearing the district court rejected Mr. Young’s challenges

to the PSR’s calculation of his base offense level, ruling that (1) Mr. Young’s

assault offense counted under § 2K2.1(a)(2) even though he had not been

sentenced for that offense before he committed the firearm offense, and (2)

Mr. Young’s escape offense was a “crime of violence” under this circuit’s

precedents. Finding no reason to depart from the Guidelines, the district court

also denied Mr. Young’s motion for a downward departure, sentencing him to a

77-month term of imprisonment (the low end of the Guideline range).

II.   DISCUSSION

      On appeal Mr. Young contends that neither his assault nor his escape

conviction should have been considered in the calculation of his base offense

level. He also argues that the district court erroneously denied his motion for a

downward departure. We address these contentions in turn.

             A.    Assault

      Mr. Young’s primary argument on appeal is that a conviction is not counted

under USSG § 2K2.1(a)(2) if sentence had not been imposed before the instant

offense was committed. Although Mr. Young had pleaded guilty to assault before

committing the firearm offense, he was not sentenced for the assault offense until

one and one-half months after he committed the firearm offense. In Mr. Young’s

view, his assault offense was therefore not a prior conviction and § 2K2.1(a)(2)

was erroneously applied to calculate his base offense level. Our review of this

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legal issue is de novo. See United States v. Whitehead, 425 F.3d 870, 871 (10th

Cir. 2005).

      Mr. Young’s argument, however, is inconsistent with our holding in United

States v. Dell, 359 F.3d 1347, 1349–50 (10th Cir. 2004). In that case the

defendant had pleaded guilty to a Utah drug charge, but he was never sentenced

for the offense. See id. at 1348. The state court had entered an order, termed a

“plea in abeyance,” Utah Code Ann. 77-2a-1(1), under which the charge was

dismissed when he successfully completed treatment. See id. The defendant was

later convicted of federal firearm offenses and he argued at sentencing for those

offenses that the dismissed drug charge was not a prior conviction. Id. at

1347–48. Because the defendant had never been sentenced under his plea in

abeyance, the federal offenses obviously did not occur after sentencing on the

drug charge. Nevertheless, we held that the plea in abeyance counted as a

conviction under § 2K2.1(a)(4)(A) because it received a criminal history point

under § 4A1.1(c). Id. at 1349. Mr. Young does not, and could not, reasonably

dispute that he properly received a criminal-history point for his assault

conviction. See USSG § 4A1.2(a)(4) (“‘Convicted of an offense’ . . . means that

the guilt of the defendant has been established, whether by guilty plea, trial, or

plea of nolo contendere.”). Accordingly, we affirm the district court’s treatment

of Mr. Young’s assault conviction as a prior conviction.




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             B.    Escape

      Mr. Young contends that his escape conviction was not a “crime of

violence.” After this claim was rejected below, the Supreme Court decided

Chambers, 129 S. Ct. 687, ruling that a failure to report to a penal institution is

not a “violent felony” under the Armed Career Criminal Act (ACCA). Although

Mr. Young was not sentenced under the ACCA, the applicable Guidelines

definition of a “crime of violence,” see USSG § 4B1.2(a), is almost identical to

the ACCA’s definition of a “violent felony,” see 18 U.S.C. § 924(e)(2)(B).

Accordingly, we have said that in this context the Supreme Court’s analysis under

the ACCA “applies equally to the sentencing guidelines.” United States v. Tiger,

538 F.3d 1297, 1298 (10th Cir. 2008). In this case, however, the record does not

provide the information that we would need to apply Chambers. Although it

establishes that Mr. Young escaped from a community correctional facility, it

does not establish the nature of that escape or the escape statute under which Mr.

Young was convicted. Thus, as the parties agreed at oral argument, further

district-court proceedings are required to determine whether, in light of

Chambers, Mr. Young’s prior escape conviction was a crime of violence.

             C.    Downward Departure

      Mr. Young’s final argument is that the district court erred in denying his

motion for a downward departure. We “lack jurisdiction to review the

discretionary denial of a downward departure.” United States v. Fonseca, 473

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F.3d 1109, 1112 (10th Cir. 2007). And because we presume that district courts

“recognize [their] discretion,” we review the denial of a downward departure only

if the court “unambiguously states it lacks discretion to grant the departure.” Id.

Here, the district court made no such unambiguous statement. To the contrary, at

the sentencing hearing the district court rejected Mr. Young’s argument to depart

downwards by noting that it “[was] not persuaded that the defense ha[d] met its

burden.” R. Vol. II at 14. Later, the court found “no reason to depart from the

Guideline range.” Id. at 16. We lack jurisdiction to review the discretionary

denial of Mr. Young’s downward-departure motion.

III.   CONCLUSION

       We REVERSE Mr. Young’s sentence and REMAND for further sentencing

proceedings consistent with Chambers v. United States, 129 S. Ct. 687 (2009) and

this opinion. We GRANT the Stipulated Motion to Supplement Record.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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