Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 CR 344-James B. Zagel, Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Before POSNER, RIPPLE and MANION, Circuit Judges.
Emmanuel Lewis Hart pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). The district court sentenced him to 156 months' imprisonment and three years of supervised release under the career offender Guideline, U.S.S.G. § 4B1.1. We now vacate Mr. Hart's sentence and remand his case to the district court for resentencing in light of this opinion.
On May 13, 2006, Mr. Hart entered a Chicago bank carrying a small black bag and a robbery note. He handed a teller the note, which read: "There is a bomb in this bag give me the 100.00, 50.00, & 20.00 with no dye pack's & no cops or I'll blow this motherf[-]ker up its up to you if anybody get hurt." R.15. The teller gave Mr. Hart $2,400, and he left the bank. On his way out, he set the black bag on a table; there was no bomb in the bag. The police apprehended Mr. Hart the same day.
On November 20, 2006, Mr. Hart pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). The presentence investigation report ("PSR") concluded that Mr. Hart was a career offender under section 4B1.2 of the United States Sentencing Guidelines. This determination was based on his two prior convictions for crimes of violence: a bank robbery conviction in 1998 and a conviction for escape in 2005. Applying the career offender Guideline, the PSR calculated Mr. Hart's advisory sentencing range at 151 to 188 months and recommended a sentence of 168 months. The PSR also opined that there was no basis for a sentence below the guidelines range.
Mr. Hart raised two objections to the PSR. He first argued that his escape conviction was not a crime of violence because it was a "walkaway" escape; that is, a non-violent departure from non-secure custody. The Government agreed that his escape was of the walkaway variety. The parties agree that at the time of his escape in June 2004, Mr. Hart was serving the last portion of his sentence for the 1988 bank robbery in a non-secure halfway house run by the Salvation Army. One day, he received a two-hour pass permitting him to leave the facility to go shopping at a local grocery store. He returned late, apparently because he mistakenly believed he had a four-hour pass. The Salvation Army required residents who returned late to submit to a blood test, but rather than do so, Mr. Hart left the facility. Shortly thereafter, the police found him sleeping on a park bench and took him back into custody without incident. Based on these facts, Mr. Hart argued at his sentencing hearing in this case that the escape should not be treated as a crime of violence for sentencing purposes because it did not create a serious risk of physical injury to anyone.
Mr. Hart also submitted that a below-guidelines sentence was appropriate in his case because of his long history of mental illness. Mr. Hart is a diagnosed schizophrenic; symptoms of his illness, including delusions and auditory hallucinations, began when he was six years old and continue to this day. Over the years, Mr. Hart has been treated with various antipsychotic medications and has participated in several mental health programs. Prior to sentencing, he was examined by Dr. Bernard Rubin, a forensic psychiatrist. Dr. Rubin concluded that Mr. Hart was suffering from moderately severe schizophrenia at the time of the robbery, and that he knew his conduct was criminal, but could not control his behavior because it was driven by "psychotic and disordered thinking with a resultant lack of judgmental control." R.45 at 4. Mr. Hart contended at sentencing that a below-guidelines sentence was appropriate in his case because he would not receive the necessary psychiatric treatment while he was in prison.
The district court agreed with the PSR's conclusion that both Mr. Hart's bank-robbery and escape convictions were crimes of violence and that he therefore should be sentenced as a career offender under U.S.S.G. § 4B1.1. The court declined to impose a below-guidelines sentence based on Mr. Hart's mental illness. Although the district court was convinced that Mr. Hart had legiti-mate mental problems, it concluded that a below-guidelines sentence was not appropriate. Among other things, the court determined that, because of financial limitations, Mr. Hart would not receive adequate psychiatric treatment outside of prison and that he would continue to present "a danger to himself and a danger to others." R. 38 at 11. The court concluded that it would be best for Mr. Hart and for society if he were incarcerated for a period of time consistent with his guidelines range. The court reasoned that prison would provide Mr. Hart with much-needed structure and that he would be less of a threat to himself and others upon release because he would be older. Accordingly, the court sentenced Mr. Hart to a within-guidelines term of 156 months' imprisonment, to be followed by three years of supervised release.
Mr. Hart sought review of his sentence in this court, challenging both the district court's classification of his escape as a crime of violence and its refusal to impose a below-guidelines sentence. At the time this appeal was briefed and argued, our precedent made it clear that escape was categorically a crime of violence.*fn1 On April 16, 2008, however, the Supreme Court of the United States issued its decision in Begay v. United States, 128 S.Ct. 1581 (2008), which cast doubt on our previous approach for evaluating whether a particular crime is a crime of violence. On April 21, the Supreme Court granted certiorari to review our decision in United States v. Chambers, 473 F.3d 724 (7th Cir. 2007), in which we had held that failure to report to a penal institution also constitutes a crime of violence. Then, on September 9, this court announced its decision in United States v. Templeton, 543 F.3d 378 (7th Cir. 2008). In Templeton, we reconsidered our previous holdings in light of Begay and concluded that, contrary to our prior holdings, "walkaway" escapes-that is, escapes from non-secure detention facili-ties-are not crimes of violence for sentencing purposes.
On November 21, 2008, we issued an order deferring our decision in this case until after the Supreme Court rendered its decision in Chambers. We also directed the parties to file supplemental memoranda within twenty days of the Supreme Court's decision. The Supreme Court issued its decision in Chambers v. United States, 129 S.Ct. 687 (2009), on January 13, 2009. The Court reversed our earlier decision and held that a conviction for failure to report under Illinois' escape statute is not a crime of violence for sentencing purposes.
The parties in this case have filed their supplemental memoranda; they agree that Mr. Hart's sentence should be vacated and his ...