Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Wollman, Circuit Judge
Submitted: March 12, 2010
Before RILEY, Chief Judge,*fn1 BRIGHT and WOLLMAN, Circuit Judges.
James Gene Furqueron pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district court determined that Furqueron was subject to an enhanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), and the related section of the United States Sentencing Guidelines (USSG), § 4B1.4, after finding that he had three prior convictions for violent felonies. Furqueron appeals from his sentence, contending that his convictions for fleeing a peace officer in a motor vehicle, in violation of Minnesota Statutes § 609.487 subdivision 3 (2006), and escape from custody, in violation of Minnesota Statutes § 609.485 subdivisions 2(1) and 4(1) (1988), do not constitute violent felonies. We reverse and remand.
Furqueron's presentence investigation report listed a litany of prior convictions, including three it identified as violent felonies under the ACCA: fleeing a peace officer in a motor vehicle, escape from custody, and second-degree attempted homicide. The report determined that Furqueron was subject to the ACCA's fifteen-year mandatory minimum sentence. The report calculated Furqueron's base offense level and criminal history category under the USSG's armed career criminal section, § 4B1.4, and concluded that the sentencing range was 180 to 188 months' imprisonment. Furqueron objected to the report's determination that he had three predicate offenses under the ACCA, conceding only that the second-degree attempted homicide conviction was a violent felony.
The district court adopted the presentence investigation report's findings, ruled that Furqueron was subject to the ACCA's enhanced sentence because his convictions for fleeing and escape constituted violent felonies, and sentenced Furqueron to fifteen years' imprisonment.
The ACCA mandates a minimum fifteen-year term of imprisonment for a defendant who has been convicted of being a felon in possession of a firearm and who previously has been convicted of three violent felonies. 18 U.S.C. § 924 (e)(1). We recently held that the crime of fleeing a peace officer in a motor vehicle, in violation of Minnesota Statutes § 609.487 subdivision 3, does not constitute a crime of violence under the sentencing guidelines. United States v. Tyler, 580 F.3d 722, 726 (8th Cir. 2009). We recognize the term "violent felony" under the ACCA as synonymous with the term "crime of violence" under § 4B1.2. United States v. Williams, 537 F.3d 969, 971 (8th Cir. 2008) (noting that the relevant definitions of the two terms are "virtually identical"). Furqueron's conviction for fleeing a peace officer in a motor vehicle thus cannot serve as a basis for a sentence under the ACCA or USSG § 4B1.4.
This holding removes Furqueron from the armed career criminal classification because he has been convicted of at most two violent felonies. Whether Furqueron's escape conviction is a violent felony, or in sentencing guidelines parlance, a crime of violence, remains justiciable. See United States v. Clinkscale, 559 F.3d 815, 817 (8th Cir. 2009) (concluding that the defendant was not an armed career criminal because his motor vehicle theft conviction was not a violent felony and deciding the issue whether his terroristic threats conviction constituted a crime of violence). If Furqueron's felony escape conviction is a crime of violence, he is subject to a higher base offense level on remand than if he has only one predicate conviction.*fn2 The same analysis applies to determine whether a conviction constitutes a violent felony under the ACCA as applies to determine whether it is a crime of violence under the USSG, see Williams, 537 F.3d at 971, and the parties have fully briefed the issue whether Furqueron's escape conviction constitutes a violent felony. We thus reach the merits of Furqueron's argument.
Section 4B1.2(a) of the USSG defines a crime of violence as any offense punishable by imprisonment for a term exceeding one year, that "(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." To determine whether a defendant's prior conviction falls within the "otherwise" clause, "we must consider whether it poses a similar degree of risk of physical injury and whether it typically involves conduct that is similarly purposeful, violent and aggressive when compared to the conduct involved in its closest analogue among the example crimes." United States v. Gordon, 557 F.3d 623, 625 (8th Cir. 2009) (emphasis omitted) (citing Begay v. United States, 553 U.S. 137 (2008)).
In conducting the analysis, we apply a categorical approach, looking to the elements of the offense to determine whether the conviction constitutes a crime of violence. Id. If the statute is overinclusive, covering offenses that would constitute crimes of violence, as well as offenses that would not, we apply a modified categorical approach, which allows a court to "refer to the charging document, the terms of a plea agreement, jury instructions, or comparable judicial records to determine" whether the prior conviction is a crime of violence. United States v. Pearson, 553 F.3d 1183, 1186 (8th Cir. 2009).
Furqueron was convicted of escape from custody, in violation of Minnesota Statutes 609.485 subdivision 2(1) (1988), which prohibits "[e]scapes while held in lawful custody on a charge or conviction of a crime." He was sentenced under subdivision 4(1), which provides a term of imprisonment of not more than five years and a fine of not more than $10,000 "[i]f the person who escapes is in lawful custody on a charge or conviction of a felony." The statute defines "escape" as including "departure without lawful authority and failure to return to custody following temporary leave granted for a specific purpose ...