In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2405

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEONDERY CHAMBERS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 4:05-cr-40044-JLF—G. Patrick Murphy, Chief Judge.

____________

ARGUED DECEMBER 13, 2006—DECIDED JANUARY 9, 2007

____________

Before POSNER, MANION, and EVANS, Circuit Judges.

POSNER, Circuit Judge. The defendant pleaded guilty

to being a felon in possession of a firearm. The judge,

finding that the defendant had committed three crimes

of violence previously, sentenced him to 188 months as

an armed career criminal. 18 U.S.C. § 924(e). The only

question presented by the appeal is whether one of those

convictions, a conviction under Illinois law for escape,

was indeed a crime of violence. The answer depends

on whether escape “involves conduct that presents a

serious potential risk of physical injury to another.”

§ 924(e)(1). A jail break does; but Illinois defines felonious
2 No. 06-2405

escape not only as “intentionally escap[ing] from a penal

institution or from the custody of an employee of that

institution” but also as “knowingly fail[ing] to report to a

penal institution or to report for periodic imprisonment

at any time.” 720 ILCS 5/31-6(a). The defendant’s escape

was in the latter category—failing to report to a penal

institution. The charging document is not in the record,

but as summarized in the presentence investigation report and not challenged by the defendant it states that on

four occasions he failed to report on schedule to a penal

institution after being convicted for drug possession,

robbery, and aggravated battery.

As an original matter, one might have doubted whether

failing to report to prison, as distinct from escaping from

a jail, prison, or other form of custody, was a crime that

typically or often “involves conduct that presents a serious

potential risk of physical injury to another.” United States

v. Golden, 466 F.3d 612, 616-17 (7th Cir. 2006) (Williams, J.,

dissenting). You could show up an hour late (without an

excuse) and be guilty of a felony that could result in

your receiving a 15-year mandatory minimum sentence

under the Armed Career Criminal Act. Had the defendant been sentenced without the enhancement, his guidelines sentencing range would have been 130 to 162 months.

See U.S.S.G. §§ 2K2.1(a)(2), (b)(5), 3C1.2, E1.1(a), (b).

But the majority opinion in Golden, tracking our earlier

opinion in United States v. Bryant, 310 F.3d 550 (7th Cir.

2002), refused to carve the Illinois escape statute at the

joint, as it were, but held instead that any violation of the

statute is a crime of violence for purposes of the Act. The

other courts of appeals, except the D.C. and Ninth Circuits,

are in accord. United States v. Winn, 364 F.3d 7 (1st Cir.

2004); United States v. Luster, 305 F.3d 199, 202 (3d Cir.
No. 06-2405 3

2002); United States v. Jackson, 301 F.3d 59, 63 (2d Cir. 2002);

United States v. Turner, 285 F.3d 909, 915-16 (10th Cir. 2002);

United States v. Gay, 251 F.3d 950 (11th Cir. 2001) (per

curiam); United States v. Nation, 243 F.3d 467, 472 (8th Cir.

2001); United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999);

United States v. Harris, 165 F.3d 1062, 1068 (6th Cir. 1999);

United States v. Mitchell, 113 F.3d 1258, 1533 (10th Cir. 1997).

The D.C. Circuit reserved the issue in United States v.

Thomas, 333 F.3d 280, 282-83 (D.C. Cir. 2003). See also

United States v. Adkins, 196 F.3d 1112, 1119 (10th Cir. 1999)

(McKay, J., concurring), and Judge Rovner’s concurring

opinion in our Golden case. The Ninth Circuit ruled that

a peaceful failure to return, followed by the defendant’s

turning himself in rather than being recaptured, is not a

crime of violence. United States v. Piccolo, 441 F.3d 1084 (9th

Cir. 2006).

All these cases involved either a failure to return to a

halfway house—a type of failing to return that seems even

less violence-prone than failing to show up at prison,

because a violent prisoner would be less likely to be

serving a part of his sentence in a halfway house—or a

“walkaway” escape, which does not involve breaking

out of a building or wrestling free of guards. There would

be no impropriety in dividing escapes, for purposes of

“crime of violence” classification, into jail or prison breaks

on the one hand and walkaways, failures to report, and

failures to return, on the other. The sentencing judge

would not have to dig beneath the charging document or

the other, limited evidence on which a judge is permitted

by Shepard v. United States, 544 U.S. 13 (2005), to decide

which bin a conviction for escape belonged in.

But we shrink from trying to overrule a decision that is

only a few months old (Golden was decided on October 25,
4 No. 06-2405

2006), that tracked an earlier and materially identical

decision of this court (Bryant), and that has overwhelming support in the decisions of the other circuits. The

defendant has not presented us with arguments or evidence that were overlooked or unavailable in the previous

cases. He cites us to United States v. Hagenow, 423 F.3d 638,

644-45 (7th Cir. 2005), which held that because the offense

of “confinement” in Indiana can be committed without

endangering the person confined, the sentencing judge

has to look behind the label of the defendant’s conviction

to see whether his conduct endangered anyone. But the

defendant in this case is not asking for a deeper investigation into the circumstances of his failure to report. He is

asking us to carve out noncustodial from custodial escape,

and that is the move rejected in Bryant and Golden, as

well as in the cases we cited from other circuits.

We shall adhere to the precedents for now. But it is an

embarrassment to the law when judges base decisions of

consequence on conjectures, in this case a conjecture as to

the possible danger of physical injury posed by criminals

who fail to show up to begin serving their sentences or

fail to return from furloughs or to halfway houses. The

head of the line of cases that lump all escapes together,

United States v. Goslin, 39 F.3d 1140, 1142 (10th Cir. 1994),

states in colorful language quoted in many of the subsequent cases that “every escape scenario is a powder keg,

which may or may not explode into violence and result

in physical injury to someone at any given time, but

which always has the serious potential to do so . . . . A

defendant who escapes from a jail is likely to possess a

variety of supercharged emotions, and in evading those

trying to recapture him, may feel threatened by police

officers, ordinary citizens, or even fellow escapees . . . .
No. 06-2405 5

[E]ven in a case where a defendant escapes from a jail by

stealth and injures no one in the process, there is still a

serious risk that injury will result when officers find the

defendant and attempt to place him in custody.” (Emphasis

in original.) This is conjecture floating well free of any

facts—even the facts of Goslin. The opinion says nothing

about the nature of Goslin’s escape, but the reference

to escaping from a jail suggests that the court wasn’t

thinking about walkaway escapes, or failures to return or

report, but about jail breaks (most jail breaks are stealthy).

Its ruminations should not be treated as authoritative

in a case that does not involve a jail break.

The Sentencing Commission, or if it is unwilling a

criminal justice institute or scholar, would do a great

service to federal penology by conducting a study comparing the frequency of violence in escapes from custody

to the frequency of violence in failures to report or return. Should it turn out that the latter frequency is very

low, this would provide a powerful reason to reexamine

Bryant and Golden. Alternatively, Congress, which has

investigative tools, might examine the issue with a view

toward a possible clarification of 18 U.S.C. § 924(e)(1).

The most helpful analysis of escapes from United States

prisons that we have found, Richard F. Culp, “Frequency

and Characteristics of Prison Escapes in the United States:

An Analysis of National Data,” 85 Prison J. 270 (2005),

unfortunately excludes from its study “walkaways from

minimum-security facilities, failures to return from approved absences, and escapes from custody staff while

being transported outside,” id. at 275, although almost

90 percent of all escapes are walkaways. Id. at 278; Camille

Graham Camp & George M. Camp, “The Corrections

Yearbook 1997” 18 (Criminal Justice Institute, Inc., 1997).
6 No. 06-2405

And while the Culp study includes recaptures after an

escape, it does not reveal whether a recapture involved

violence. Id. at 281-82. More than 6 percent of the escapees

committed crimes while on the lam, and many of these

were violent crimes, id. at 285-86, but that is not evidence

that escape itself is likely to be violent; for all that appears, the escapees were merely resuming their previous

criminal careers. Six percent of the escapes in the study

involved violence against prison staff, id. at 285—violence

on the way out, as it were—but there is no indication of

how many of the recaptures (some 75 percent of escaped

prisoners are recaptured, id. at 282) involved violence.

The study notes that records of prison escapes are not

standardized and that recapture data are even less reliable than escape data. Id. at 271, 277, 281.

It is apparent that more research will be needed to

establish whether failures to report or return have

properly been categorized by this and most other courts

as crimes of violence. Notice too that if courts insist on

lumping all escapes together in determining whether

escape is a crime of violence, the enormous preponderance of walkaways could well compel a conclusion

that escape is never a crime of violence. Some disaggregation seems indicated, but to do it sensibly we

judges need data.

AFFIRMED.
No. 06-2405 7

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-9-07