United States of America v. Demetrius Ford

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4480
UNITED STATES OF AMERICA
v.
DEMETRIUS FORD,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 05-cr-00071-001)
District Judge: Honorable Terrence F. McVerry.
Submitted Under Third Circuit LAR 34.1(a)
January 12, 2010
Before: SCIRICA, Chief Judge, BARRY and SMITH, Circuit Judges
(Opinion Filed: February 4, 2010 )
OPINION
BARRY, Circuit Judge.
Demetrius Ford appeals his designation as an armed career criminal, arguing that

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The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have1
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
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his conviction for the Pennsylvania crime of escape from official detention does not
constitute a violent felony. We will vacate Ford’s sentence and remand to the District
Court for re-sentencing.
I.
Ford pled guilty to possession of a firearm as a convicted felon, in violation of 18
U.S.C. § 922(g)(1). The District Court determined that it was appropriate to apply the
Armed Career Criminal Act (“ACCA”), which provides for a minimum sentence of
fifteen years imprisonment for defendants convicted of violating § 922(g) who have three
previous convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1).
Ford did not dispute that he had two past convictions for serious drug offenses, but
disputed that his 1994 conviction (by guilty plea) for the Pennsylvania crime of escape
from official detention constituted a violent felony. The District Court imposed the
mandatory minimum sentence of fifteen years imprisonment, as well as five years of
supervised release. Ford timely appealed.1
II.
“Violent felony” is defined as follows:
[T]he term “violent felony” means any crime punishable by imprisonment
for a term exceeding one year, or any act of juvenile delinquency involving
the use or carrying of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an adult, that--

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“[T]he definition of a violent felony under the ACCA is sufficiently similar to2
the definition of a crime of violence under the Sentencing Guidelines that authority
interpreting one is generally applied to the other . . . .” United States v. Hopkins, 577 F.3d
507, 511 (3d Cir. 2009).
We stayed Ford’s appeal pending the Supreme Court’s decision in Chambers.3
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(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.
18 U.S.C. § 924(e)(2)(B). The parties agree that only the second clause, commonly
described as the residual clause, is at issue here. The District Court, in concluding that
Ford’s escape conviction was a violent felony, relied on our decision in United States v.
Luster, 305 F.3d 199 (3d Cir. 2002). In Luster, we held that the Pennsylvania crime of
escape constitutes a “crime of violence” under the Sentencing Guidelines because “every2
escape scenario is a powder keg, which may or may not explode into violence and result
in physical injury to someone at any given time, but which always has the serious
potential to do so.” 305 F.3d at 202 (quoting United States v. Gosling, 39 F.3d 1140,
1142 (10th Cir. 1994)).
The Supreme Court’s recent decision in Chambers v. United States, 129 S. Ct. 687
(2009), however, “is in conflict with our previous view that any crime involving a refusal3
to submit to lawful state detention does present [a serious potential risk of physical injury
to another].” United States v. Hopkins, 577 F.3d 507, 512 (3d Cir. 2009). In Chambers,

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the Supreme Court examined the Illinois escape statute, which criminalized a variety of
conduct. It was clear from the defendant’s charging document that he had pled guilty to
knowingly failing to report for periodic imprisonment. The Court concluded that failure
to report is a “separate crime” from escape. Chambers, 129 S. Ct. at 691. Because failure
to report does not involve conduct that presents a serious potential risk of physical injury
to another and is “a far cry from the purposeful, violent, and aggressive conduct”
exemplified by the residual clause’s enumerated offenses, the Court held that it is not a
violent felony under ACCA. Id. at 691-92 (internal quotations and citation omitted).
Chambers does not address whether escape from custody crimes are violent
felonies, except by way of distinguishing such crimes from failure to report crimes. The
Supreme Court noted that “the behavior that likely underlies a failure to report would
seem less likely to involve a risk of physical harm than the less passive, more aggressive
behavior underlying an escape from custody.” Chambers, 129 S. Ct. at 691. The Court
framed the question as “whether such an offender is significantly more likely than others
to attack, or physically to resist, an apprehender, thereby producing a ‘serious potential
risk of physical injury.’” Id. at 692. It also considered data prepared by the Sentencing
Commission which indicated that none of the 160 failure to report/return cases in 2006
and 2007 involved violence (although five of these offenders were armed).

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In contrast, of the 64 “leaving secure custody” cases, 15.6% involved force,4
31.3% involved a dangerous weapon, and 10.9% resulted in injury. Chambers, 129 S. Ct.
at App. A.
“Official detention” is defined as: “arrest, detention in any facility for custody of5
persons under charge or conviction of crime or alleged or found to be delinquent,
detention for extradition or deportation, or any other detention for law enforcement
purposes; but the phrase does not include supervision of probation or parole, or constraint
incidental to release on bail.” 18 Pa. Cons. Stat. § 5121(e).
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Id. at 692-93.4
III.
Before we can determine whether an offense qualifies as a violent felony, we must
identify the crime of which the defendant was convicted. Hopkins, 577 F.3d at 510
(noting that in residual clause cases, we must “pay attention to the way that the state
statutory scheme identifies the relevant crime”). The Pennsylvania escape statute
provides:
A person commits an offense if he unlawfully removes himself from
official detention or fails to return to official detention following temporary
leave granted for a specific purpose or limited period.
18 Pa. Cons. Stat. § 5121(a) (emphasis added). Thus, the same statute criminalizes both5
“escape from custody” and “failure to return to custody.” It is clear, after Chambers, that
the latter is not a violent felony. See Chambers, 129 S. Ct. at 691 (characterizing “failing
to report to a penal institution,” “failing to report for periodic imprisonment,” “failing to
return from furlough,” and “failing to return from work and day release” all as “failure to
report” crimes distinct from escape from custody crimes). Therefore, it is critical to

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determine which of the two offenses Ford pled guilty to committing. It is not possible to
do so based on the present record.
To determine whether Ford pled guilty to the crime of unlawfully removing
himself from official detention, we consider whether Ford “necessarily admitted” the
elements of this offense when he pled guilty. Shepard v. United States, 544 U.S. 13, 26
(2005). Courts may consider only “the terms of the charging document, the terms of a
plea agreement or transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or to some comparable judicial
record of this information.” Id.; see also United States v. Siegel, 477 F.3d 87, 92 (3d Cir.
2007) (“Commonly, the best way to resolve the question raised by a conviction under a
statute phrased in the disjunctive . . . will be to look to the charging instrument or to the
plea colloquy.”).
The information charging Ford with escape is inconclusive because it tracked the
statutory language, including both removing oneself from detention and failing to return
to detention. Moreover, the arrest warrant affidavit and criminal complaint, both of
which were submitted to the District Court at sentencing, are not documents that may be
considered for purposes of the ACCA analysis because Ford did not confirm the facts
contained in these documents or plead guilty pursuant to them. See Shepard, 544 U.S. at
25-26 (noting that a court’s consideration of police reports in classifying an offense
implicates the Sixth and Fourteenth Amendments); Evanson v. Att’y Gen., 550 F.3d 284,
293 n.7 (3d Cir. 2008) (a criminal complaint that has been superseded by an information

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is not the relevant charging document to be considered under the modified categorical
approach).
The government has asked us to supplement the record with the transcript of the
plea hearing at which Ford pled guilty to the Pennsylvania escape statute and consider, in
the first instance, the colloquy between Ford and the judge confirming the factual basis
for the plea, a request that is hotly disputed. We decline to do so. We will, however,
remand to the District Court for it to decide whether to permit the government to now
support its contention that Ford qualifies as an armed career criminal with the colloquy it
chose not to submit at sentencing. See United States v. Dickler, 64 F.3d 818, 831-32 (3d
Cir. 1995). On remand, the government must present a “persuasive reason why fairness .
. . requires” that the District Court consider the colloquy. Id. at 832. The District Court
should exercise its “informed discretion” in determining whether such consideration is
appropriate. Id. at 831; cf. United States v. Johnson, 587 F.3d at 203, 213 (3d Cir. 2009)
(directing the district court to consider the plea colloquy transcript on remand, based on
the “particular circumstances” of that case, where the government had been unable to
present the colloquy at sentencing and it had only later become available for review).
If the District Court decides that it is appropriate to consider the colloquy, it
should then determine whether the colloquy establishes that Ford pled guilty to escape
from custody or failure to return to custody, and whether that offense is a violent felony,
by employing the analysis required by Begay v. United States, 553 U.S. 137, 128 S. Ct.

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Neither case had been decided at the time of Ford’s sentencing. We have6
discussed Chambers above. In Begay, the Supreme Court held that courts, in determining
whether the offense at issue involves conduct that presents a serious potential risk of
physical injury to another, must consider if it is “roughly similar, in kind as well as in
degree of risk posed, to the examples [burglary, arson, extortion, and use of explosives]
themselves.” 128 S. Ct. at 1585. The listed offenses are similar in that they “all typically
involve purposeful, violent, and aggressive conduct.” Id. at 1586 (internal quotations and
citation omitted). To determine whether a particular offense qualifies as a violent felony,
courts must “consider the offense generically” and “examine it in terms of how the law
defines the offense and not in terms of how an individual offender might have committed
it on a particular occasion.” Id. at 1584; see also James v. United States, 550 U.S. 192,
202, 208 (2007) (noting that courts must consider “the ordinary case” and not “the
specific conduct of this particular offender”). “[Shepard’s] rule is not meant to
circumvent the categorical approach by allowing courts to determine whether the actual
conduct of the individual defendant constituted a purposeful, violent and aggressive act.”
Johnson, 587 F.3d at 208 (quoting United States v. Smith, 544 F.3d 781, 786 (7th Cir.
2008)).
We believe it appropriate to address certain issues Ford has raised so that they7
need not distract the parties at re-sentencing. First, Ford’s argument that escape cannot be
a violent felony because it is not a crime against property is without merit. Johnson, 587
F.3d at 211 n.9 (“Noting in Begay unequivocally establishes that the residual clause is
restricted to crimes against property, and no case law interpreting that provision post-
Begay suggests as much.”). Second, Ford states that he “continues to object under the
Fifth and Sixth Amendments to any statutory sentencing enhancements based on prior
convictions that were not charged in the indictment, or admitted, or proven to the jury
beyond a reasonable doubt.” (Appellant’s Op. Br. at 14.) We have repeatedly rejected
this argument. See, e.g., United States v. Coleman, 451 F.3d 154, 159 (3d Cir. 2006)
(citing Almendarez-Torres v. United States, 523 U.S. 224 (1998)). Finally, Ford argues
that 18 U.S.C. § 922(g) is unconstitutional, but acknowledges that this issue is controlled
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1581 (2008), and Chambers. . See Hopkins, 577 F.3d at 515 (holding that a misdemeanor6
escape conviction under the Pennsylvania statute is not a crime of violence).
IV.
Accordingly, we will vacate Ford’s sentence and remand to the District Court for
re-sentencing.7

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by our decision in United States v. Singletary, 268 F.3d 196 (3d Cir. 2001), and raises it
only for purposes of further appellate review.
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