FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 27, 2010

JOHN LEY

 CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 09-15999

 

D. C. Docket No. 09-00133 CR-WEH-TMP

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

versus

LONZELL DEMETRIC GOWDY,

a.k.a. Alonzo Smith,

a.k.a. Zell,

a.k.a. Zo,

 Defendant-Appellant.

 

Appeal from the United States District Court

for the Northern District of Alabama

 

(December 27, 2010)

Before DUBINA, Chief Judge, ANDERSON, Circuit Judge, and MOODY,*

District Judge.

Honorable James S. Moody, Jr., United States District Judge for the Middle District of *

Florida, sitting by designation.
DUBINA, Chief Judge:

Appellant Lonzell Demetric Gowdy appeals his conviction for escaping

from federal custody in violation of 18 U.S.C. § 751(a). Gowdy contends that his

failure to turn himself in following his mistaken release from Alabama state

custody was not an escape from custody, as required by § 751(a), because he was

not in federal custody. We disagree and affirm his conviction. 

I.

Gowdy was in the custody of the State of Mississippi, but was transported,

pursuant to a writ of habeas corpus, to the Northern District of Alabama, where the

federal district court convicted and sentenced him on federal drug charges. The

Northern District of Alabama returned Gowdy to the custody of the State of

Mississippi with a federal detainer against him. The State of Mississippi received

the federal detainer, but then lost it and released Gowdy on a detainer issued by

the State of Alabama because of pending charges in that state. The State of

Alabama never received the federal detainer and released Gowdy after he served

his Alabama sentence. The parties stipulated that but for the fact that the State of

Mississippi lost the federal detainer, the State of Alabama would have returned

Gowdy to federal authorities following the expiration of his Alabama sentence.

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Once federal officials realized the mistake, a bench warrant was issued for

Gowdy’s arrest. Walter Shipp, the United States Deputy Marshal assigned to the

case, contacted Gowdy, informed him that he still owed time on his federal

conviction, and instructed him to report to Birmingham, Alabama, to commence

serving his federal sentence. Gowdy agreed, but indicated that he needed to make

arrangements for his minor daughter, who was in his custody. Gowdy did not turn

himself in as promised, but instead left Alabama for Mississippi. Several months

later, Shipp discovered Gowdy’s whereabouts and arrested Gowdy.

II. 

A grand jury indicted Gowdy on one count of escaping federal custody in

violation of 18 U.S.C. § 751(a). At trial, Gowdy did not put on a defense, but

argued in motions brought pursuant to Federal Rule of Criminal Procedure 29 that

he was never in federal custody and therefore could not be convicted under §

751(a). The government argued that he was in constructive custody by virtue of

his federal drug conviction. The district court denied the motions and sent the

case to the jury, which found Gowdy guilty. Gowdy then filed another motion for

acquittal, which the district court also denied. 

Gowdy appeals his conviction and argues that throughout his state custody,

until and after his release, he was not in federal custody under § 751(a). Gowdy

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contends that the government failed to prove that he was in any custody other than

that of the State of Mississippi and then the State of Alabama. Accordingly, he

requests that his conviction be reversed. 

III.

We review the sufficiency of the evidence de novo, viewing the evidence

and all reasonable inferences in favor of the government and the jury’s verdict. 

United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005). A conviction must

be affirmed unless, under no reasonable construction of the evidence, could the

jury have found the appellant guilty beyond a reasonable doubt. Id.

Section 751(a) provides in relevant part:

Whoever escapes or attempts to escape from the custody of the

Attorney General or his authorized representative, or from any

institution or facility in which he is confined by direction of the

Attorney General, or from any custody under or by virtue of any

process issued under the laws of the United States by any court,

judge, or magistrate judge, or from the custody of an officer or

employee of the United States pursuant to lawful arrest, shall, if the

custody or confinement is by virtue of an arrest on a charge of felony,

or conviction of any offense, be fined under this title or imprisoned

not more than five years, or both . . . .

18 U.S.C. § 751(a) (1994). Thus, in order to establish the custodial element of the

offense, the government must demonstrate that one of the following was true of

the defendant at the time of his escape: (1) he was in the custody of the Attorney

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General or an authorized representative; (2) he was confined in an institution by

direction of the Attorney General; (3) he was in custody under or by virtue of any

process issued under the laws of the United States by any court or judge or

magistrate judge; or (4) he was in the custody of an officer or employee of the

United States pursuant to a lawful arrest. See United States v. Evans, 159 F.3d

908, 910 (4th Cir. 1998). As other circuits have recognized, custody does not

require “direct physical restraint” and may be “minimal” or “constructive.” United

States v. Depew, 977 F.2d 1412, 1414 (10th Cir. 1992) (citing United States v.

Keller, 912 F.2d 1058, 1059 (9th Cir. 1990), and United States v. Cluck, 542 F.2d

728, 731 (8th Cir. 1976)). 

IV.

The Supreme Court previously discussed § 751(a)’s broad scope in the

context of sentencing under the Armed Career Criminal Act (ACCA) and

recognized that defendants are convicted under § 751(a) for crimes ranging from

violent jailbreaks to non-violent walkaways to failures to report for incarceration

or return to custody. See Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687

(2009). In Chambers, the Supreme Court determined that a conviction under an

Illinois escape statute for failure to report did not qualify as a crime of violence

under the ACCA. Id. at __, 129 S. Ct. at 693. In reaching its conclusion, the

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Court relied heavily on a United States Sentencing Commission Report on Federal

Escape Offenses in Fiscal Years 2006 and 2007. Id. at __, 129 S. Ct. at 692. The

report analyzed sentences under U.S. Sentencing Guideline Manual (USSG) §

2P1.1, the section applicable to federal escape crimes, and noted that during 2006

and 2007, nearly 40% of all convictions sentenced under USSG § 2P1.1 involved

failures to report or return, and more than 40% involved leaving non-secure

custody, while only 15% involved leaving secure custody. Id. at __, 129 S. Ct. at

693 & app. B. See also United States v. Hart, 578 F.3d 674, 681 (7th Cir. 2009)

(“[O]ne can commit ‘escape’ under the federal statute simply by staying home on

the day one is supposed to surrender.”). 

Likewise, our sister circuits have upheld convictions under the statute for

crimes involving many circumstances beyond the jailbreak scenario. See e.g.,

United States v. Sack, 379 F.3d 1177, 1181 (10th Cir. 2004) (failure to return to

halfway house); Depew, 977 F.2d at 1414 (escape while transported on writ to

state circuit court); United States v. Keller, 912 F.2d 1058, 1059–60 (9th Cir.

1990) (failure to report to begin sentence); United States v. Chapman, 455 F.2d

746, 749–50 (5th Cir. 1972) (failure to return following a “forced” jailbreak);

Derengowski v. United States, 404 F.2d 778, 781–82 (8th Cir. 1968) (escape from

state facility while at facility on federal writ). The common theme in these cases is

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the underlying purpose of § 751(a) to protect the public from the danger associated

with federal criminals remaining at large. Given the statute’s broad purpose, this

court will not indulge Gowdy’s narrow reading of the statute and will instead

assign it its plain meaning. Accordingly, we hold that the custodial requirement of

§ 751(a) is satisfied where a lawful judgment of conviction has been issued by a

court against the defendant. 

Taken in the light most favorable to the government, we conclude that the

evidence supports Gowdy’s conviction under 18 U.S.C. § 751(a) based on his

being in custody at the time of his escape by virtue of a process issued under the

laws of the United States by a federal district court. The record evidence

demonstrates that Gowdy was constructively in federal custody pursuant to a 2005

judgment of conviction entered by the district court in the Northern District of

Alabama. Because there is no additional requirement that the defendant be

physically confined in an institution at the time of the escape, we conclude that the

record fully supports Gowdy’s conviction for escape under § 751(a). 

AFFIRMED.

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