On Rehearing, Tenth Finds New Basis To Find the Escape is a Crime of Violence

U.S. v. Koufos, 2011 WL 6778133 (12/27/11) (N.M.) (Published) - The good news: the 10th actually grants a rehearing petition for this previously-reported case where the 10th had relied on facts, contrary to the categorical approach, to find the defendant's escape to fit within the riskiness residual clause of the § 4B1.2(a)(2) crime-of-violence definition.

The bad news: the 10th chooses a new ground to find the defendant's escape to be a crime of violence. The 10th decides the defendant violated the portion of 18 U.S.C. § 751(a) that prohibits "escape from the custody of an officer or employee of the U.S. pursuant to a lawful arrest," even though no judicial document ever mentioned this portion of the statute, based on the information's allegation that the defendant was arrested and taken to a federal courthouse for arraignment. The 10th holds, in agreement with a dissenting 6th Circuit judge, that that kind of offense requires affirmative action and likely poses a risk to the law enforcement officers and the public at large. The 10th notes the Sentencing Commission's stats cited in Chambers that indicate 15.4% of escapes from law enforcement custody resulted in injury.