Scheduling of Oral Arguments

Our office recently received an order adjusting the briefing schedule in a pending appeal. The order contained the following language, which was captioned "Important Scheduling Notice!," "Criminal appeals are scheduled shortly after the filing of the main brief. . ." As is well known, once an oral argument is scheduled, it is difficult to obtain a different date. Counsel who foresee a scheduling problem will typically write the clerk and so advise; the Court has been accommodating to requests that oral argument not be assigned for particular dates. Generally, counsel would wait until all the briefs were submitted before making such a request. With this new practice, counsel should be looking at their calendars much earlier.

Escape as a Crime of Violence

United States v. Deondery Chambers, No. 06-2405 (January 9, 2007): Mr. Chambers was sentenced as an armed career criminal. One of his three crimes of violence was a state conviction for escape from a penal institution. His escape was not of the "Escape from Alcatraz" variety; instead, he merely failed to report on time to begin serving a sentence. Under 18 U.S.C. sec. 924(e), a felony is violent if it "involves conduct that presents a serious potential risk of physical injury to another." Under the law of the Circuit, escape always meets this definition. See United States v. Golden, 466 F.3d 612 (7th Cir. 2006).

For that reason, the Court affirmed the sentence. But the panel expressed serious misgivings about this position. "We shall adhere to the precedents for now. But it is an embarrassment to the law when judges base decisions of consequence on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences . . ." The Court suggested that Congress, the Sentencing Commission, or academics ought to gather information on the incidence of violence presented by escapes that involve no more than the failure to report as directed.

Special note: as of this posting, this opinion does not appear on the Court's website, although it is a published opinion available in a slipsheet format.