     07-0308-cr
     United States v. Mills

1                         UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3                                 August Term, 2007

4    (Argued: May 30, 2008
5    Final briefs submitted
6    February 4, 2009                                 Decided:   June 26, 2009)


7                               Docket No. 07-0308-cr

8                    -------------------------------------

9                             UNITED STATES OF AMERICA,

10                                    Appellee,

11                                      - v -

12                    GARY MILLS, also known as G KNOCKER,

13                              Defendant-Appellant.

14                   -------------------------------------

15   Before:     KEARSE, SACK, and LIVINGSTON, Circuit Judges.

16               Appeal from a judgment of conviction of the United

17   States District Court for the District of Connecticut (Peter C.

18   Dorsey, Judge), sentencing defendant-appellant Gary Mills

19   principally to a term of imprisonment of 188 months under the

20   Armed Career Criminal Act, 18 U.S.C. § 924(e).         Mills challenges

21   the district court's determination that his prior conviction for

22   escape under Connecticut law is a violent felony for statutory

23   sentencing-enhancement purposes.      Based on the Supreme Court's

24   recent decision in Chambers v. United States, 129 S. Ct. 687

25   (2009), we conclude that Mills's conviction for escape based on

26   his failure to abide by the terms of his "transitional
1    supervision" was not a violent felony within the meaning of the

2    Armed Career Criminal Act.       Mills's sentencing, conducted

3    pursuant to the Act, was therefore improper.

4                  Remanded.

 5                                 KAREN L. PECK, Assistant United States
 6                                 Attorney (Kevin J. O'Connor, United
 7                                 States Attorney, District of
 8                                 Connecticut; John H. Durham, Deputy
 9                                 United States Attorney; William J.
10                                 Nardini, Assistant United States
11                                 Attorney, of counsel), New Haven, CT,
12                                 for Appellee.

13                                 RICHARD S. CRAMER, Hartford, CT, for
14                                 Appellant.

15   PER CURIAM:

16                 Defendant-Appellant Gary Mills appeals from a judgment

17   of conviction of the United States District Court for the

18   District of Connecticut (Peter C. Dorsey, Judge) by which he was

19   sentenced principally to a term of imprisonment of 188 months

20   under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e).

21   The ACCA applies to persons who violate 18 U.S.C. § 922(g) and

22   who have "three previous convictions . . . for a violent felony

23   or a serious drug offense, or both."       18 U.S.C. § 924(e)(1).

24   Mills met the first requirement inasmuch as he pled guilty to

25   being a felon in possession of a firearm in violation of 18

26   U.S.C. § 922(g)(1).       He argues, however, that he did not have

27   three prior convictions for violent felonies or serious drug

28   offenses, and that he therefore should not have been sentenced

29   under the ACCA.      Specifically, Mills asserts that his prior

30   conviction for first-degree escape in violation of Conn. Gen.

                                          2
1    Stat. § 53a-169 should not have been treated as a violent felony

2    within the meaning of the statute.   The government concedes that

3    under the Supreme Court's recent decision in Chambers v. United

4    States, 129 S. Ct. 687 (2009), the matter should be remanded for

5    resentencing without reference to the ACCA.   Because we agree

6    with both Mills and the government that under Chambers, Mills's

7    prior conviction for escape in the first degree was not a violent

8    felony, we remand to the district court to vacate the sentence

9    and to resentence Mills.

10             Mills contends further that his sentence was

11   procedurally unreasonable because the sentencing court failed to

12   address his request for a downward departure.   Because we remand

13   for resentencing in any event, we need not and do not resolve

14   this issue.

15                               BACKGROUND

16             On February 18, 2003, Mills was indicted on one count

17   of being a felon in possession of a firearm in violation of 18

18   U.S.C. § 922(g)(1).   On October 19, 2006, he pled guilty.   The

19   United States Probation Office prepared a presentence

20   investigation report ("PSR") recommending that Mills be sentenced

21   under the ACCA because he had three prior convictions for a

22   violent felony or serious drug offense.   Mills objected, arguing

23   that one of the three predicate offenses identified in the PSR,




                                      3
1   first-degree escape in violation of Conn. Gen. Stat. § 53a-169,

2   was not a violent felony.1




         1
             In 1997 the statute provided, in pertinent part:

                A person is guilty of escape in the first
                degree (1) if he escapes from a correctional
                institution or (2) if he escapes from any
                public or private, nonprofit halfway house,
                group home or mental health facility or
                community residence to which he was
                transferred pursuant to subsection (e) of
                section 18-100 and he is in the custody of
                the Commissioner of Correction or is required
                to be returned to the custody of said
                commissioner upon his release from such
                facility or (3) if he escapes from a work
                detail or school on the premises of the
                correctional institution or (4) if he fails
                to return from a furlough . . . or (5) if he
                fails to return from work release or
                education release as authorized under
                sections 18-90a and 18-100 or (6) if he
                escapes from a hospital for mental illness in
                which he has been confined . . . or (7) if,
                while under the jurisdiction of the
                Psychiatric Security Review Board, but not
                confined to a hospital for mental illness, he
                leaves the state without authorization of the
                board.

    Conn. Gen. Stat. § 53a-169(a).    Connecticut law further provides:

                If the Commissioner of Correction deems that
                the purposes of this section may thus be more
                effectively carried out, the commissioner may
                transfer any person from one correctional
                institution to another or to any public or
                private nonprofit halfway house, group home
                or mental health facility or, after
                satisfactory participation in a residential
                program, to any approved community or private
                residence. Any inmate so transferred shall
                remain under the jurisdiction of said
                commissioner.

    Conn. Gen. Stat. § 18-100(e).

                                      4
1               At an evidentiary hearing in the district court,

2    defense counsel established the circumstances of Mills's

3    conviction in state court for first-degree escape.    On July 15,

4    1997, Mills was released from prison and placed in "transitional

5    supervision," under which he was authorized to reside in a

6    private residence.   By statute, however, he remained under the

7    jurisdiction of the Connecticut Commissioner of Correction, see

8    Conn. Gen. Stat. § 18-100(e), and was required to satisfy

9    conditions similar to those required of parolees, including

10   reporting regularly to a community enforcement officer.

11              On July 16, 1997, the day after his release, Mills

12   reported as scheduled to his community enforcement officer.     He

13   was required to do so thereafter on a weekly basis.   Following

14   that appointment, however, he failed to appear for the meetings.

15              When Mills missed his next appointment, the enforcement

16   officer attempted to find Mills by visiting the private residence

17   in which he had been authorized to reside.   Mills was not there.

18   In light of Mills's continued missed appointments and the

19   officer's continued inability to locate him, Mills was charged

20   with first-degree escape in violation of Conn. Gen. Stat. § 53a-

21   169(a).   On June 2, 1998, he was convicted of this crime.    The

22   PSR relied on this conviction as a predicate violent felony

23   conviction in recommending that Mills be sentenced under the

24   ACCA.

25              At a sentencing hearing held on January 22, 2007, the

26   district court rejected Mills's objection to the classification

                                      5
1    of this offense as a violent felony for purposes of sentencing

2    him under the ACCA.   Employing the "categorical approach," see

3    Taylor v. United States, 495 U.S. 575, 602 (1990), and relying on

4    United States v. Jackson, 301 F.3d 59, 63 (2d Cir. 2002) (holding

5    that escape is categorically a violent felony under the ACCA),

6    the court concluded that it was required to classify Mills's

7    conviction for escape as a violent felony and sentence him

8    accordingly under the ACCA.   As a result, the court concluded

9    that the statutory mandatory minimum sentence was 180 months and

10   the advisory sentencing range under the United States Sentencing

11   Guidelines was 188 to 235 months.

12             Defense counsel argued for a below-Guidelines sentence

13   equal to the mandatory minimum, 180 months, based on the non-

14   violent nature of Mills's "escape" and his "extraordinary

15   rehabilitation" while incarcerated prior to sentencing.    Mills

16   also filed a sentencing memorandum setting forth two additional

17   grounds for a below-Guidelines sentence: the restrictive

18   conditions of his confinement while in state custody under a

19   federal detainer and "the profound effect upon Mr. Mills during

20   his formative years" of the suicides of his sister and godfather.

21             The district court explicitly discussed the sentencing

22   factors enumerated in 18 U.S.C. § 3553(a).   "The credit you are

23   entitled to," the district judge said, "includes an accommodation

24   for the fact that you have manifested a redirection of your

25   life . . . and I think you're entitled to some credit for that,

26   but on the other hand, the seriousness of the offense . . . is

                                      6
1    something I cannot ignore. . . .         I am not inclined to think that

2    in reaching for what is a reasonable sentence, that going below

3    the [G]uideline range is warranted."        Transcript of January 22,

4    2007, Sentencing Hr'g (page unnumbered); Government Appendix at

5    126-27.   The court therefore imposed a sentence of 188 months,

6    which was at the bottom of the Guidelines range and eight months

7    above the mandatory minimum sentence under the ACCA.

8                                 DISCUSSION

9               I.   Applicability of the ACCA

10              A.   Standard of Review

11              "We review de novo the district court's determination

12   of whether a prior offense is a 'violent felony' under the ACCA."

13   United States v. Lynch, 518 F.3d 164, 168 (2d Cir. 2008).

14              B.   Analysis

15              Mills was convicted in state court of escape in the

16   first degree under Conn. Gen Stat. § 53a-169, the text of which

17   is set forth in the margin at note 1 above.        A person is guilty

18   of this crime if, inter alia, he or she "escapes from a

19   correctional institution," Conn. Gen Stat. § 53a-169(a)(1), or

20   "escapes from any public or private, nonprofit halfway house,

21   group home or mental health facility or community residence to

22   which he was transferred pursuant to subsection (e) of section

23   18-100 and he is in the custody of the Commissioner of Correction

24   or is required to be returned to the custody of said commissioner

25   upon his release from such facility," id. at § 53a-169(a)(2).

26   The Connecticut Supreme Court has interpreted "escape" within the

                                          7
1    meaning of Section 53a-169 to mean any "unauthorized departure

2    from, or failure to return to, whatever may be designated as [the

3    defendant's] place of incarceration or confinement."      State v.

4    Lubus, 581 A.2d 1045, 1048 (Conn. 1990).

5               "In Taylor[,] . . . the [Supreme] Court endorsed a

6    'categorical approach' to determining whether a prior conviction

7    qualifies as a 'violent felony' under the ACCA.      The sentencing

8    court generally must 'look only to the fact of conviction and the

9    statutory definition of the prior offense.'"      United States v.

10   Rosa, 507 F.3d 142, 151 (2d Cir. 2007) (quoting Taylor, 495 U.S.

11   at 602).   But where, as in Taylor, Rosa, and the instant case,

12   "the statutory definition of the state crime of conviction

13   encompasses both crimes that would qualify as a 'violent felony'

14   and crimes that would not, . . . the Taylor Court concluded that

15   a broader inquiry is permissible."      Id.   When a statute

16   encompasses both violent and non-violent felonies, as Conn. Gen

17   Stat. § 53a-169 does, we make a limited inquiry into which part

18   of the statute the defendant was convicted of violating.

19              The inquiry is an easy one here.     The government

20   concedes that Mills's prior conviction for escape was pursuant to

21   Conn. Gen Stat. § 53a-169(a)(2).       The Connecticut Supreme Court

22   has made clear that a violation of this section of the statute is

23   consistent with both an affirmative escape from custody and a

24   mere failure to return.   See Lubus, 581 A.2d at 1048 ("We

25   conclude . . . that § 53a-169(a)(2) employs the term 'escape' to

26   contemplate an unauthorized departure from, or failure to return

                                        8
1    to, a 'community residence.'").   Moreover, the government also

2    concedes that, having the burden of proof on the issue, see Rosa,

3    507 F.3d at 151, it "did not establish, pursuant to [Shepard v.

4    United States, 544 U.S. 13, 26 (2005) (limiting court's review to

5    specific documents when deciding under which provision of a

6    statute encompassing both violent and non-violent crimes a

7    defendant was convicted)], that the defendant had been convicted

8    of an affirmative escape from custody rather than a failure to

9    return."   Government's Supplemental Letter Br. 2 (Feb. 4, 2009).

10   The government therefore concluded:

11              For this reason, the record would not
12              support, in the wake of Chambers, a
13              conclusion that the defendant had been
14              convicted in state court of an "escape" crime
15              that generically qualifies as a violent
16              felony under § 924(e) . . . .

17              [E]ven the facts outside the scope of
18              Shepard, if they could have been considered,
19              would have narrowed Mills'[s] conviction only
20              to either a failure to report or a walkaway
21              escape from a non-secure facility . . . .
22              [T]he Government concedes that a simple
23              walkaway escape from a nonsecure community
24              residence does not constitute the sort of
25              purposeful, aggressive and violent behavior
26              that is required . . . to constitute a
27              "violent felony" for the purposes of §
28              924(e).

29   Id. at 2-3.

30              We need not address whether a "walkaway escape" is, as

31   the government says, not a violent felony for these purposes

32   under Chambers.   Cf. Jackson, 301 F.3d at 63 (holding, prior to

33   Chambers, that a walkaway escape is categorically a violent

34   felony).   For the purpose of deciding this appeal, it is

                                       9
1    sufficient to note our agreement with the government that after

2    Chambers, a failure to report or failure to return is not a

3    violent felony under the ACCA, and that the government concedes

4    it has not proved -- and cannot prove -- that Mills was convicted

5    of anything more than a failure to return.   See Chambers, 129 S.

6    Ct. at 693 ("[W]e conclude that the crime here at issue [failure

7    to report to a penal institution, in violation of Ill. Comp.

8    Stat., ch. 720, § 5/31-6(a)] falls outside the scope of ACCA's

9    definition of 'violent felony.'"); see also id. at 691 ("we

10   believe that a failure to report (as described in the statutory

11   provision's third, fourth, fifth, and sixth phrases)[, including,

12   (3) failing to report to a penal institution, (4) failing to

13   report for periodic imprisonment, (5) failing to return from

14   furlough, (6) failing to return from work and day release,] is a

15   separate crime, different from escape (the subject matter of the

16   statute's first and second phrases)[, including (1) escape from a

17   penal institution and (2) escape from the custody of an employee

18   of a penal institution]").

19              Mills's sentencing was thus improper, if understandably

20   so.   The district court's determination that Mills was an armed

21   career criminal under the ACCA had two effects on his sentencing:

22   (1) it required a mandatory minimum sentence of 180 months under

23   18 U.S.C. § 924(e)(1); and (2) it changed Mills's base offense

24   level from 24 to 33 pursuant to U.S.S.G. § 4B1.4(b)(3)(B), which

25   led to a Guidelines imprisonment range of 188 to 235 months.   As

26   noted, the district court sentenced Mills to a term of 188

                                     10
1    months, at the bottom of this range.   Because the district

2    court's calculation of the applicable Guidelines range was

3    affected by its determination -- which, in light of Chambers, we

4    now recognize was incorrect -- that Mills was an armed career

5    criminal under the ACCA, we remand to the district court to

6    vacate the sentence and to resentence Mills.2   Cf. United States

7    v. Fagans, 406 F.3d 138, 141 (2d Cir. 2005) ("In many

8    circumstances, an incorrect calculation of the applicable

9    Guidelines range will taint . . . [a sentence that] may have been

10   explicitly selected with what was thought to be the applicable

11   Guidelines range as a frame of reference.").

12             II.   Whether Mills's Sentence
13                   Was Procedurally Unreasonable

14             We doubt that Mills's sentence was imposed in a

15   procedurally unreasonable manner.    See Rita v. United States, 127

16   S. Ct. 2456, 2468 (2007) ("The sentencing judge should set forth

17   [reasoning] enough to satisfy the appellate court that he has

18   considered the parties' arguments and has a reasoned basis for

19   exercising his own legal decisionmaking authority."); see also

20   United States v. Villafuerte, 502 F.3d 204, 210 (2d Cir. 2007)

21   (stating that although "[n]on-frivolous arguments for a

22   non-Guidelines sentence" may require some discussion, "we do not

23   insist that the district court address every argument the



          2
             We intimate no view as to the appropriate course of
     action when an improper application of the ACCA does not affect
     the district court's calculation of the applicable sentencing
     range.

                                     11
1   defendant has made or discuss every § 3553(a) factor

2   individually").   Inasmuch as we are remanding for resentencing,

3   however, this is not an issue we need resolve.

4                               CONCLUSION

5             For the foregoing reasons, we remand to the district

6   court to vacate the sentence and to resentence Mills.




                                    12
