"A Walkaway Escape Is Not Unambiguously a Crime of Violence"

In United States v. Ford, No. 08–5091 (6th Cir. Mar. 18, 2009), the panel of Judges Merritt, Cole, and Sutton found that a walkaway escape is not a crime of violence. Use of force is not an element of Kentucky’s second-degree escape offense. Analysis therefore proceeded under the "otherwise clause" of 4B1.2(a)(2). Court used some good language. For example, "[t]hat an offense presents a risk of physical injury to others, as Begay demonstrates, does not by itself suffice to show that it is a crime of violence." Court goes on to note that "all walkaway offenders have engaged in purposeful conduct." But there is no requirement of purposeful violence or purposeful aggressiveness. Court points out that "[t]he ‘otherwise’ requirement demands not just that the offense involve a similar risk of injury but also that it involve a similar type of crime." Finally, the Court finds that if any doubt remains the benefit of that doubt must go to the defendant under the Rule of Lenity. Court still notes the Shepard issue, which is an issue (see Mr. Strong’s post of March 16, 2009). The issue is a little different, as this offense is not a "reckless" one, but the analysis still seems unsettled in the Shepard area.