*

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: 11a0312p.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.

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

Decided and Filed: December 15, 2011 

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. 

MARTIN, J., delivered the opinion of the court, in which KENNEDY, J., joined.

HOOD, D. J. (pp. 4–5), delivered a separate dissenting opinion.

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. The history of this case, recited in

United States v. Oaks, 554 F.3d 1087, 1088 (6th Cir. 2009), is as follows: 

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

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

sentenced him to 120 months of incarceration and five years of

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

appealed his sentence, 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. [122 (2009)].

We remanded this case “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.” Id. at1088-89 (citation omitted). The district court,

United States v. Oaks, No. 2:04-CR-37, slip op. at 4 (E.D. Tenn. July 23, 2009), made

the following factual determinations:

first, it appears from the uncontroverted facts that at the time of the

felony escape, Oaks was being held in law enforcement custody in the

county jail on felony charges of evading arrest, felony reckless

endangerment, attempted aggravated robbery, theft over $500.00 and

aggravated burglary, but had been taken to a courtroom for a court

appearance at the time he ran from the courtroom; secondly, while the

county jail was a secure facility, the courtroom from which Oaks ran

was not.

The facts show that Oaks escaped custody from a courtroom, and that the

courtroom was not a secure facility. Oaks thus escaped from “nonsecure custody.” At

the time of his escape, Oaks was present in the courtroom to enter pleas of guilty to all

his outstanding offenses and with the understanding that the prosecutor had agreed to

various periods of probation. Indeed, when he was sentenced for those crimes the

following week, he was given various periods of probation. He received a year of

incarceration for his escape. Our task is to determine whether escape from “nonsecure

custody” is a “violent felony” for sentencing purposes. 

Here, as in Chambers, to determine whether a felony is a violent felony, “[t]he

question is whether . . . an offender is significantly more likely than others to attack, or

physically to resist, an apprehender, thereby producing a ‘serious potential risk of
No. 06-6056 United States v. Oaks Page 3

physical injury.’” Chambers, 555 U.S. at 128-29 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).

And here, as in Chambers, “a United States Sentencing Commission report helps provide

a conclusive, negative answer.” Id. at 129 (citations omitted). As reflected in an

appendix to Chambers, the act of escape from “nonsecure custody” is rarely violent. Id.

app. B (showing in a statistical table that in one hundred seventy-seven instances of

escape from “nonsecure custody” in 2006 and 2007, only 1.7% resulted in some injury).

Further, a felony is not necessarily a “violent felony” even if historical data show past

commissions of that felony involved violence. Indeed, the Supreme Court in Chambers

determined that “failing to report” is not a “violent felony,” yet past commissions of

“failing to report” involved violence in at least three instances. Id. at 129-30. We hold

that escape from “nonsecure custody” is not a violent felony for sentencing purposes.

While some courtrooms may indeed be secure facilities such that an escape from them

would be an escape from “secure custody,” the courtroom from which Oaks escaped was

not secure. Thus, Oaks’s escape from the courtroom is not a violent felony for

sentencing purposes. Accordingly, we REMAND for resentencing consistent with this

Opinion.
No. 06-6056 United States v. Oaks Page 4

1

“Leaving secure custody” occurred when an “escapee left (or attempted to leave) the custody

of a location with a secure perimeter, such as a prison or jail.” Report at 4. “Leaving law enforcement

custody” occurred when an “escapee left (or attempted to leave) the custody of a law enforcement officer,

such as during transport between institutions.” Id.

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DISSENT

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HOOD, District Judge, dissenting. I disagree with the majority’s conclusion that

Oaks’s escape from a courtroom, without proof that the courtroom had a secure

perimeter, was not a violent felony for sentencing purposes. Rather, I conclude that

because he was within the custody of law enforcement personnel at the time of his

escape from the courthouse setting that he is an offender “significantly more likely than

others to attack, or physically to resist, an apprehender, thereby producing a ‘serious

potential risk of physical injury.’” Chambers v. United States, 555 U.S. 122, 128-29

(2009).

Oaks was being held in a secure county jail before being taken by his custodian

to the courthouse for an appearance on felony charges of evading arrest, felony reckless

endangerment, attempted aggravated robbery, theft over $500.00 and aggravated

burglary. Obviously the courtroom is not as secure as the county jail, but I am hard

pressed to imagine an individual who is “significantly more likely than others to attack,

or physically to resist, an apprehender, thereby producing a ‘serious potential risk of

physical injury,’” than someone who flees from law enforcement custody during an

appearance in a matter in which he is facing felony charges.

The United States Sentencing Commission’s Report on Federal Escape Offenses

in Fiscal Years 2006 and 2007 (Nov. 2008) (hereinafter, “Report”), to which both the

Chambers court and the majority have given great weight, supports this conclusion. The

Report defines “secure escape” as those situations in which individuals have left secure

custody or law enforcement custody.1

 Report at 6. 14.3% of the secure escape cases
No. 06-6056 United States v. Oaks Page 5

2

The Report groups together those instances in which an offender left nonsecure custody, failed

to return to custody to serve an incarceration sentence, or failed to report to custody as “nonsecure

escapes.” Report at 6.

3

A dangerous weapon “was considered to be present if the sentencing documentation indicated

that the offender used, brandished, or otherwise possessed any dangerous weapon in connection with the

escape. For purposes of this analysis, a dangerous weapon means an instrument capable of inflicting death

or serious bodily injury.” Report at 5.

4

“This factor was considered to be present if the sentencing documentation indicated that the

offender caused any bodily injury (including death) to another in connection with the escape.” Report at

5.

involved force compared to 0.9% of instances of nonsecure escapes.2 Id. at 7. 27.3%

of secure escapes involved a dangerous weapon while only 2.7% of the nonsecure

escapes involved a dangerous weapon.3 Id. at 8. Injury accompanied 11.7% of the

secure escapes as opposed to 0.9% of the nonsecure escapes.4 Id. Even if one considers

only those escapees who left or attempted to leave law enforcement custody, 7.7% used

force, 7.7% were instances that involved dangerous weapons, and injury accompanied

15.4% of the escapes. Id. at 7. 

Ultimately, Tenn. Code Ann. § 39-16-601(3) (2009) defines “[e]scape” as the

“unauthorized departure from custody” and clearly contemplates Oaks’s conduct in this

instance. Chambers does not preclude a finding to the contrary. I would affirm.