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Ninth Circuit: Residential Reentry Center Walkaway is Not Escape

The Ninth Circuit Court of Appeals has held that walking away from a residential reentry center does not constitute escape under 18 U.S.C. § 751(a).

In 2008, Anthony E. Burke was convicted of federal offenses in Washington State and sentenced to 37 months in prison and 36 months of supervised release. On March 19, 2010, Burke entered the Spokane Residential Reentry Center (SRRC) to comply with a supervised release condition that he serve 180 days in a reentry center. The following month, Burke checked out of SRRC and did not return.

He was arrested in Montana the next day.

Burke was charged with escape from custody in violation of § 751(a). However, the district court granted his motion to dismiss the indictment, finding he was not in custody while at SRRC. The government appealed and the Ninth Circuit affirmed.

The Court of Appeals held “that Burke was not in ‘custody’ when he left the SRRC. He was not serving a prison sentence, nor was he confined to SRRC under conditions equivalent to custodial incarceration.” In fact, the appellate court found, “the conditions of his release ‘were much more analogous to probation than they were to imprisonment.’”

“Like an individual on probation, Burke was conditionally released from incarceration,” the Ninth Circuit explained. “His failure to return to SRRC was a violation of his release conditions punishable by revocation of release, not an escape from ‘custody’ within the meaning of § 751(a).” Burke was sentenced to a year in prison and 9 months of supervised release for violating the conditions of his release.

Circuit Judge Consuelo Callahan dissented, stating that she “would hold that Burke was in custody” at the time he walked away from the residential reentry center, and thus committed the offense of escape. See: United States v. Burke, 694 F.3d 1062 (9th Cir. 2012).