In considering whether an Illinois conviction of failure to report to jail constituted a "violent felony" under the Armed Career Criminal Act for sentence enhancement purposes, the Supreme Court relied in part on a Sentencing Commission Report. United States Sentencing Commission, Report on Federal Escape Offenses in Fiscal Years 2006 and 2007 (Nov. 2008), reprinted as Appendix A, Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 2009 WL 63882 (Jan. 13, 2009). The Court reasoned:



The question is whether such an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a "serious potential risk of physical injury." 924(e)(2)(B)(ii). And here a United States Sentencing Commission report helps provide a conclusive, negative answer. See Report on Federal Escape Offenses in Fiscal Years 2006 and 2007, p. 6 (Nov.2008) (hereinafter Commission's Report), reprinted in part in Appendix B, infra. See also 473 F.3d, at 727 (Posner, J.) (urging that such research be done).



The Commission's Report identifies every federal case in 2006 or 2007 in which a federal sentencing court applied the Sentencing Guideline, "Escape, Instigating or Assisting Escape," 1 United States Sentencing Commission, Guidelines Manual 2P1.1 (Nov.2008), and in which sufficient detail was provided, say, in the presentence report, about the circumstances of the crime to permit analysis. The analysis included calculation of the likelihood that violence would accompany commission of the escape or the offender's later apprehension.



Of 414 such cases, 160 involved a failure to report either for incarceration (42) or for custody after having been temporarily released (118). Commission's Report 7; see also Appendix B, infra. Of these 160 cases, none at all involved violence-not during commission of the offense itself, not during the offender's later apprehension-although in 5 instances (3.1%) the offenders were armed. Ibid. The upshot is that the study strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury.



The three reported cases to which the Government points do not show the contrary. The Sentencing Commission culled its 160 instances from a set of federal sentences imposed over a period of 2 years. The Government apparently culled its three examples from a set of state and federal sentences imposed over a period of 30 years. Compare Eaglin, supra (CA9 1977) with Johnson, supra (Mo.Ct.App.2008). Given the larger set, the presence of three instances of violence is consistent with the Commission's data. Simple multiplication (2 years versus 30 years; federal alone versus federal-plus-state) suggests that they show only a small risk of physical violence (less than one in several thousand). And the Government provides no other empirical information.



Chambers v. United States, ___ U.S. ___, ___, 129 S.Ct. 687, 2009 WL 63882 (Jan. 13, 2009). This analysis, and approach, apply with equal force to the question whether a given conviction triggers aggravated felony immigration consequences as a crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), on the theory that it qualifies under 18 U.S.C. 16(b) as an offense that, by its nature, involves a substantial risk that violent force will be used in its commission.