Judges: Per Curiam
Filed: Oct. 03, 2008
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued November 13, 2007 Decided October 3, 2008 Before JOHN L. COFFEY, Circuit Judge TERENCE T. EVANS, Circuit Judge DIANE S. SYKES, Circuit Judge No. 06-4033 Appeal from the United States District UNITED STATES OF AMERICA, Court for the Western District of Plaintiff-Appellee, Wisconsin. v. No. 06 CR 117 TIMOTHY L. HURNS, John C. Sha
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued November 13, 2007 Decided October 3, 2008 Before JOHN L. COFFEY, Circuit Judge TERENCE T. EVANS, Circuit Judge DIANE S. SYKES, Circuit Judge No. 06-4033 Appeal from the United States District UNITED STATES OF AMERICA, Court for the Western District of Plaintiff-Appellee, Wisconsin. v. No. 06 CR 117 TIMOTHY L. HURNS, John C. Shab..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 13, 2007
Decided October 3, 2008
Before
JOHN L. COFFEY, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 06‐4033
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Western District of
Plaintiff‐Appellee, Wisconsin.
v. No. 06 CR 117
TIMOTHY L. HURNS, John C. Shabaz,
Defendant‐Appellant. Judge.
O R D E R
Timothy Hurns appeals his 300‐month sentence for possessing crack cocaine with
the intent to distribute it. See 21 U.S.C. § 841(a)(1). The district court selected the sentence
after determining that Hurns was a career offender based on prior convictions for a
controlled‐substance offense and for escape from custody. At the time of sentencing, our
precedent required district courts to treat all escape crimes as qualifying offenses for career‐
offender status, see United States v. Golden, 466 F.3d 612 (7th Cir. 2006), but we recently
reconsidered Golden in light of the Supreme Court’s opinion in Begay v. United States,
128 S. Ct. 1581 (2008). See United States v. Templeton, No. 07‐2949, 2008 WL 4140616 (7th Cir.
Sept. 9, 2008). As we did in Templeton, we remand for resentencing.
No. 06‐4033 Page 2
I. Background
Hurns sold powder cocaine to an undercover officer—twice for money and once for
guns. Law enforcement later discovered that Hurns also employed Angel Patterson, his
girlfriend, and her roommate, Kayla Hancock, as dealers, and that Hurns would “cook” and
weigh cocaine in their home. A search of the home uncovered 72 grams of crack cocaine,
mail addressed to Hurns, a digital scale, drug paraphernalia, and $900 in cash. Hurns was
charged with three counts of distributing powder cocaine and one count of possession with
intent to distribute 50 grams or more of crack cocaine. See 21 U.S.C. § 841(a)(1). In exchange
for the government’s promise to drop the first three charges, Hurns pleaded guilty to the
fourth charge.
At sentencing, the district court found Hurns responsible, as relevant conduct, for
the equivalent of 3,000 to 10,000 kilograms of marijuana, earning him a base offense level of
34. See U.S.S.G. § 2D1.1(c)(3). With a two‐level upward adjustment for possessing firearms
in connection with a drug‐trafficking offense, see id. § 2D1.1(b)(1), a two‐level upward
adjustment for being a leader of a criminal activity involving two or more persons, see id.
§ 3B1.1(c), and a three‐level reduction for accepting responsibility, see id. § 3E1.1, the court
calculated Hurns’s adjusted offense level as 35.
The court also determined, over Hurns’s objection, that he is a career offender under
the guidelines. See id. § 4B1.1. The probation officer had recommended that status based on
Hurns’s prior commission of a controlled‐substance offense (possessing cocaine with intent
to distribute) and of a crime of violence (escape from custody pursuant to a criminal arrest,
WIS. STAT. § 946.42(3)(a)). See id. § 4B1.1(a). Hurns argued that his escape offense, which
consisted of failing to return after an authorized absence from a community corrections
center, should not count as a crime of violence. The district court disagreed, citing Golden,
466 F.3d at 612, and noting that a failure to return, like other escapes, carries a potential for
violent confrontation at the time of recapture.
Hurns’s career‐offender status did not alter his offense level, but it did raise his
criminal history score from V to VI, see U.S.S.G. § 4B1.1(b), which in turn yielded an
advisory guidelines range of 292 to 365 months’ imprisonment, see id. Ch. 5, Pt. A. The
court sentenced Hurns to 300 months’ imprisonment, five years’ supervised release, and a
$100 special assessment.
No. 06‐4033 Page 3
II. Analysis
On appeal, Hurns disputes the district court’s determination that he is a career
offender based on his prior conviction for escape. Career‐offender status applies only to a
defendant who has “at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” Id. § 4B1.1(a)(3). “Crime of violence” is defined as
any offense under federal or state law, punishable by imprisonment for a term
exceeding one year that –
(1) has as an element the use, attempted use, or threatened use of physical
force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical
injury to another.
Id. at § 4B1.2(a). The district court’s determination that Hurns’s conviction for escape from
custody pursuant to a criminal arrest, WIS. STAT. § 946.42(3)(a), was a crime of violence was
required by Golden, 466 F.3d at 614‐15, in which we held that the great risk of harm from
recapturing a defendant who had escaped from custody, even when the escape was a
passive failure to report, made it a “violent felony” under the Armed Career Criminal Act.
(The ACCA’s definition of “violent felony” is identical to the definition of “crime of
violence” under the Sentencing Guidelines, and our interpretation of the two is the same as
well. Templeton, 2008 WL 4140616, at *1.)
After oral argument in this case, the Supreme Court decided Begay, 128 S. Ct. at 1581,
which held that felony drunk driving was not a violent felony under the Armed Career
Criminal Act because even assuming that it presented “a serious potential risk of physical
injury to another,” it was “too unlike the provision’s listed examples,” i.e. burglary of a
dwelling, arson, extortion, and crimes involving explosives. Id. at 1584. Hurns filed a
Citation of Supplemental Authority, see FED. R. APP. P. 28(j), in which he argued that the
reasoning of Begay required us to reconsider our precedent holding escape crimes to
categorically be crimes of violence for purposes of career‐offender status. We recently
agreed with this argument in Templeton.
In Templeton, we held that a conviction under WIS. STAT. § 946.42 for escape was not
categorically a crime of violence, and we remanded so the district court could determine,
by looking at the indictment or other charging papers, whether the way in which the
No. 06‐4033 Page 4
defendant committed the offense qualified it as a crime of violence. Templeton,
2008 WL 4140616, at *5‐6. Hurns’s PSR suggests that Hurns did not actively escape, but
merely failed to return after being given permission to leave a community corrections
center. As in Templeton, however, we must remand for further proceedings to determine
whether the way in which Hurns committed the offense in question qualifies it as a crime
of violence.
Hurns also argues that his sentence is unreasonable because it fails to account for the
disparity between sentences for crack and powder cocaine. There is no requirement that
district courts impose lower sentences based on the crack‐powder ratio, but they may do so.
See Kimbrough v. United States, 128 S. Ct. 558, 575 (2007). Even so, an argument that the
district court should consider the ratio would go nowhere if Hurns were properly
considered a career offender. See United States v. Harris, 536 F.3d 798, 813 (7th Cir. 2008).
The district court might hold on remand that he is not a career offender. If it does, the court
may consider Hurns’s argument that his sentence should be reduced to account for the
crack‐powder ratio.
Accordingly, we REMAND for resentencing.