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Michigan Escape is Not “Violent Felony” for ACCA Purposes

The Sixth Circuit Court of Appeals has held that a Michigan “failure to report” escape conviction was not a “violent felony” under 18 U.S.C. § 924, the Armed Career Criminals Act (ACCA).

Anthony Collier was arrested by federal agents in Michigan and charged with being a felon in possession of a firearm under 18 U.S.C. § 992(g)(1).

After Collier pleaded guilty, the pre-sentence investigation report determined that he had three prior “violent felonies” for purposes of sentencing under the ACCA: “(1) breaking and entering a dwelling with intent to commit larceny, (2) prison escape, and (3) fourth-degree fleeing and eluding a police officer.” Because Collier was being sentenced on a felon in possession of a firearm conviction, the ACCA required a minimum 15-year sentence if he had been previously convicted of three “violent felonies.”

At sentencing, Collier’s attorney conceded that breaking and entering was a violent felony, but argued that the other convictions were not. The sentencing court found that all three convictions were violent felonies and sentenced Collier under the ACCA.

On appeal, the Sixth Circuit noted that whether an offense “is a ‘violent felony’ turns on whether it ‘involves conduct that presents a serious potential risk of physical injury to another.’” Additionally, “the government bears the burden of proving that the defendant qualifies for a sentence enhancement under the ACCA.”

Collier’s prison escape conviction was a “walk away” where he simply stepped “off a public Greyhound bus – where he was unaccompanied by correctional officials – and failed to report to the facility to which he was being transferred.” The appellate court expressed “doubt that a statute covering this ‘failure to report’ variety of escape necessarily involves conduct that presents a serious potential risk of physical injury to another.” While making it clear that jail-break escapes would involve conduct that presents such a risk, the Sixth Circuit found that a “‘failure to report’ escape is not categorically a ‘violent felony.’”

The Court then determined “that Collier’s Michigan conviction for escape does not qualify as a ‘violent felony’ under the ACCA.” As to his eluding conviction, the appellate court noted that it had previously found such convictions to be ACCA violent felonies in United States v. Martin, 378 F.3d 578, 582-84 (6th Cir. 2004); United States v. McGhee, 161 Fed.Appx. 441, 448-450 (6th Cir. 2005) (unpublished) and United States v. Foreman, 436 F.3d 638, 643 (6th Cir. 2006). See: United States v. Collier, 493 F.3d 731 (6th Cir. 2007).

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Related legal case

United States v. Collier