*

The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District of

Kentucky, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0042p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

JERRY RAY OAKS,

 Defendant-Appellant.

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No. 06-6056

On Remand from the United States Supreme Court to the

United States District Court for the Eastern District of Tennessee.

No. 04-00037—J. Ronnie Greer, District Judge.

Submitted: May 1, 2008

Decided and Filed: February 9, 2009 

Before: KENNEDY and MARTIN, Circuit Judges; HOOD, District Judge.*

_________________

COUNSEL

ON BRIEF: Salvatore C. Adamo, LAW OFFICE OF SALVATORE C. ADAMO,

Phillipsburg, New Jersey, for Appellant. Robert M. Reeves, ASSISTANT UNITED

STATES ATTORNEY, Greeneville, Tennessee, for Appellee. 

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. Defendant Jerry Ray Oaks pleaded

guilty to being a felon in possession of a firearm and the district court in the Eastern

District of Tennessee sentenced him to 120 months of incarceration and five years of

supervised release, entering the judgment on August 9, 2006. He appealed his sentence,

1
No. 06-6056 United States v. Oaks Page 2

in the first instance, challenging, in part, the district court’s use of his prior conviction

for felony escape to support his sentence under the Armed Career Criminal Act, 18

U.S.C. § 924(e). Oral argument before us was waived and we affirmed the sentencing

court’s judgment on May 14, 2008. On January 21, 2009, the Supreme Court granted

Defendant’s application for a writ of certiorari, vacated our judgment, and remanded the

case to us for reconsideration in light of its decision in Chambers v. United States, 555

U.S. —, 129 S. Ct. 687 (2009). Oaks v. United States, — U.S. —, — S. Ct. —, 2009

WL 129082 (2009).

In Chambers, the Supreme Court held that “failure to report,” although described

in an Illinois statute criminalizing “escape,” was a separate crime and did not amount to

a “violent felony” under the Armed Career Criminal Act. 555 U.S. —, slip op. at 4.

Tennessee’s definition of “escape,” like the Illinois statute at issue in Chambers, “places

together in a single numbered statutory section several different kinds of behavior,” id;

compare TENN. CODE ANN. § 39-16-601(3) (2009) (defining “[e]scape” as the

“unauthorized departure from custody or failure to return to custody following

temporary leave for a specific purpose or limited period . . .”) (emphasis added) with 720

ILL.COMP.STAT. 5/31-6(a) (2009) (defining “escape” to include, inter alia, “knowingly

fail[ing] to report to a penal institution or to report for periodic imprisonment at any

time or knowingly fail[ing] to return from furlough or from work and day release . . .

.”) (emphasis added).

Here, we have reviewed the district court’s rulings, which indicate that it found

that Oaks’s felony escape conviction followed a charge of “knowingly escaping from the

custody of the Carter County Sheriff’s Department while in custody of the Carter County

Sheriff’s Department, a penal institution . . . .” United States v. Oaks, No. 2:04-CR-37,

Order at 3 (E.D. Tenn. May 13, 2005) (citing Indictment No. 15999, Criminal Court,

Cater County, Tenn.). Under the Tennessee Code, “penal institution” is “any institution

or facility use to house or detain a person,” TENN.CODE.ANN § 39-16-601(4). Thus, we

are unable to determine whether, at the time of his escape, Oaks was held in “secure

custody,” “law enforcement custody,” or “nonsecure custody,” see Chambers, 555
No. 06-6056 United States v. Oaks Page 3

U.S.— (slip. op. at 10, App’x B) (Report on Federal Escape Offenses in Fiscal Years

2006 and 2007, p. 7, fig. 1 (Nov. 2008)), and whether the escape qualifies as “violent”

because it involves “serious risk of physical injury.” 18 U.S.C. § 924(e)(2)(B)(ii);

Chambers, 555 U.S. — (slip. op. at 6-8) (considering empirical evidence of how often

different types of “escapes” led to injury).

Accordingly, we REMAND to the district court for a determination of the type

of facility and level of security involved in the “custody of the Carter County Sheriff’s

Department” at the time of Oaks’s escape. After the district court has made this

determination, this Court will issue further instructions.