Way to go, Mr. Geoff Upshaw! Mr. Upshaw is a member of our WD Mich CJA Panel and got this great victory!
United States v. Covington, 738 F.3d 759 (6th Cir. 2014).
Panel of Judges Rogers, Stranch, and Donald.
Is prison escape under MCL 750.193 a crime of violence? No.
The plea colloquy from the state escape conviction showed that the defendant had left the correction center with permission on a laundry pass and returned ten minutes late. Believing he would be sent back to prison for violating the center's rules, the defendant went out a window, jumped a fence, and ran through a wooded area to escape.
Court applied Descamps.
Because the statute gives several ways in which it may be violated, including some escapes that involve the element of breaking and some that do not, the statute is divisible for Descamps purposes. Modified categorical approach applies.
Offense here was a breaking-and-escaping offense.
COA reminds us that the powder-keg theory is no longer persuasive.
Court found that breaking and escaping from prison and burglary of a dwelling share only one risk: the potential for discovery and capture. The COA says this factor is not one to consider post-Anglin. Even if the Court were to consider such a risk of confrontation, the risk posed by breaking into a home "is considerably greater than the risk posed by breaking out of a prison." And even if the risks associated with breaking and escaping from prison could be comparable to those associated with burglary, the offense at issue "also criminalizes walking out of an unguarded area by pushing open a partially ajar door. The statute thus covers a much 'broader swath of conduct' than what might arguably qualify as a crime of violence."
Not a crime of violent.
Judge Stranch concurred:
In Denson, the judge had put the "divisibility" issue under Descamps at the end of the analysis. The judge now feels that this placement led "to a somewhat redundant analysis." The proper order for the "analysis after Descamps is to put the 'divisibility' question first." If a statute is divisible, a court may consider the Shepard documents briefly to determine the alternative offense of which the defendant was convicted. From that point, the court should apply the same categorical test used for indivisible statutes.
