Submitted Oct. 22, 2013.
[Copyrighted Material Omitted]
Terrance Waite, argued, North Platte, NE, for appellant.
Scott A.C. Meisler, argued, Washington, DC, for appellee.
Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc.
GRUENDER, Circuit Judge.
After his conviction as a felon in possession of a firearm, Alfred Tucker received an enhanced sentence under the Armed Career Criminal Act (" ACCA" ), which applies to those felons guilty of possession of a firearm who have three prior convictions for a violent felony. See 18 U.S.C. § 924(e). After a panel of this court affirmed his conviction and sentence, we granted rehearing en banc to address whether Tucker's prior conviction under a Nebraska escape statute qualifies as a violent felony for purposes of the ACCA. Because the elements of the portion of the Nebraska statute under which Tucker was convicted do not, in the ordinary case, encompass conduct that presents a serious potential risk of physical injury to another, a conviction under that portion of the statute cannot serve as a predicate conviction for ACCA purposes. We thus vacate Tucker's sentence and remand for resentencing.
Our prior panel opinion in this case describes the circumstances of Tucker's arrest and conviction. United States v. Tucker, 689 F.3d 914, 917 (8th Cir.2012), vacated, Nos. 11-2444/2489 (8th Cir. Jan. 14, 2013). We reinstate this opinion, except for its section II.D regarding Tucker's sentence.
The ACCA applies to defendants who are convicted of being a felon in possession of a firearm after three prior convictions for a violent felony. 18 U.S.C. § 924(e). A violent felony is a felony that " (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." § 924(e)(2)(B). To determine whether a past conviction qualifies as a violent felony, we apply the " categorical approach," under which we " look only to the fact of conviction and the statutory definition of the prior offense." Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). However, where a statute of conviction sets out one or more elements of the offense in the alternative, the statute is considered " divisible" for ACCA purposes. Descamps v. United States, 570 U.S.
__, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). If one alternative
in a divisible statute qualifies as a violent felony, but another does not, we apply the " modified categorical approach" to determine under which portion of the statute the defendant was convicted. Id. " [T]he modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction." Id.
The district court found that Tucker's prior conviction under a Nebraska escape statute qualified as one of the three necessary predicate violent felony convictions under the " otherwise" clause of § 924(e)(2)(B)(ii) because it " involve[d] conduct that presents a serious potential risk of physical injury to another." On appeal, Tucker argued that his escape was a mere " walk-away escape" that could not be considered to present a serious potential risk of physical injury to another, similar to an offense of failure to report back to custody that the Supreme Court held was not a violent felony for ACCA purposes in Chambers v. United States, 555 U.S. 122, 127-30, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). The panel rejected Tucker's argument based on a prior panel holding that " Chambers ... leaves intact our precedent holding that escape from custody is a crime of violence," 689 F.3d at 920 (quoting United States v. Pearson, 553 F.3d 1183, 1186 (8th Cir.2009)), which we already had applied to the Nebraska statute at issue, see id. (citing United States v. Williams, 664 F.3d 719, 720 (8th Cir.2011)).
We granted Tucker's petition for rehearing en banc to consider whether that precedent should be overruled. We also ordered supplemental briefing on two issues: (1) whether the court may subdivide a statute that is textually indivisible for purposes of applying the modified categorical approach, and (2) if so, how the generic offense of " walk-away escape" should be defined. These questions were designed to help us decide whether to adopt the approach of our panel in United States v. Parks, 620 F.3d 911, 915 (8th Cir.2010), which relied on the non-statutory categories of " escape from a secured and guarded facility and escape from an unsecured facility" to determine, through the modified categorical approach, whether a conviction for escape from custody under a Missouri statute qualified as a " crime of violence" pursuant to the United States Sentencing Guidelines career offender provision. Subsequent to our order, the Supreme Court in Descamps addressed whether a court may subdivide a statute that is textually indivisible, and both parties received the opportunity to discuss Descamps in supplemental briefing. In light of Descamps, we also directed the parties to address whether, if the relevant portion of the Nebraska escape statute is indivisible, the conduct encompassed by the elements of that offense, in the ordinary case, presents a serious potential risk of physical injury to another person.
The statute under which Tucker was convicted provides as follows:
(1) A person commits escape 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. Official detention shall mean arrest, detention in or transportation to any facility for custody of persons under charge or conviction of crime or contempt or for persons alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement ...