§350 Escape, Prison Offenses
8th Circuit allows concurrent sentences for two offenses in prison. (350)(650) Defendant pleaded guilty to possessing a prohibited object in prison, in violation of 18 U.S.C. § 1791(a)(2). That statute provides that any sentence should be consecutive to the sentence that defendant is serving when he committed the offense. At sentencing, the district court believed it was prohibited from sentencing defendant to concurrent terms for each of his two violations of § 1791(a)(2). On appeal, the Eighth Circuit reversed and remanded, holding that the language only barred the district court from imposing a sentence concurrent with the underlying offense. It did not bar the court from imposing two § 1791 offenses concurrently with each other. U.S. v. Moody, __ F.3d __ (8th Cir. July 19, 2019) No. 18-2040.
8th Circuit affirms upward variance for walkaway escape from prison. (350)(741) Defendant walked away from a federal prison and was convicted of escape. His guidelines range was 12 to 18 months. The district court sentenced defendant to 36 months. The court weighed the applicable factors and explained that a longer sentence was necessary to deter escape attempts. The Eighth Circuit rejected defendant’s argument that the district court simply disagreed with the applicable guideline and held that sentence was not substantively unreasonable. U.S. v. Saguto, __ F.3d __ (8th Cir. July 3, 2019) No. 18-1276.
6th Circuit affirms sentence of prisoner who used a cellphone to harass a woman. (350)(770) Defendant, a federal prisoner, possessed a cellphone in prison and pleaded guilty to misdemeanor possession of contraband in prison. Defendant’s offense came to light when a woman left an anonymous tip that defendant had been texting her. At sentencing, defendant claimed that he should receive a one-day sentence because he was using the cellphone to stay in contact with his family. The district court noted that the offense came to light because defendant was contacting a woman did not want defendant to contact her, and sentenced him to five months. On appeal, defendant argued that the district court found that he was harassing someone with the cellphone. The Sixth Circuit held that the district court drew reasonable inferences from the evidence. U.S. v. Parrish. __ F.3d __ (6th Cir. Feb. 12. 2019) No. 18-1178.
6th Circuit upholds within-guidelines sentence for possession of contraband in prison. (350)(742) Defendant, a federal prisoner, pleaded guilty to misdemeanor possession of contraband (a cellphone) in prison, in violation of 18 U.S.C. § 1791(a)(2). He had a guidelines range of 4 to 10 months, and the district court sentenced him to five months. The Sixth Circuit held this sentence was substantively reasonable, rejecting defendant’s claims that the district court did not consider all the factors under 18 U.S.C. § 3553(a) and that the district court did not consider the need to avoid local sentencing disparities. U.S. v. Parrish, __ F.3d __ (6th Cir. Feb. 12, 2019) No. 18-1178.
1st Circuit finds that defendant who aided a prisoner’s escape from prison was not a minor participant. (350) The 1st Circuit rejected defendant’s argument that he was a minor participant in another prisoner’s escape from a federal prison. On instructions from a corrupt prison guard who promised him money, defendant passed the prisoner off as someone else to enable him to gain access to a different work detail. Defendant acted as lookout once the attempt was underway, and had a hand in other essential elements of the prisoner’s escape. On these facts, the court found that defendant was not “substantially less culpable” than the “average” person who helped a prisoner escape. U.S. v. Ocasio, 914 F.2d 330 (1st Cir. 1990).
2nd Circuit considers drug conspiracy in determining prison offense guideline. (350) Defendant, a corrections officer, was convicted of providing inmates with alcohol and escape equipment. He also admitted, but was not convicted of, providing the inmates with cocaine. The 2nd Circuit basing defendant’s sentence on section 2P1.2(c)(1), which provides that defendants convicted of 18 U.S.C. 1791(a)(1) should be sentenced under the narcotics guideline in section 2D1.1. By providing inmates with cocaine, defendant’s conduct violated 18 U.S.C. 1791(a) and therefore the cross-reference in section 2P1.2(c)(1) applied. The fact that defendant was convicted of conspiracy rather than the substantive offense, was irrelevant. Nor did applying the cross-reference for conspiracy violate the ex post facto clause. The November 1, 1991 amendment to application note 5 of section 1B1.3, which provided that conspiracy offenses are to be treated like substantive offenses, was a clarification, rather than a change in the substantive law. U.S. v. Mapp, 990 F.2d 58 (2nd Cir. 1993).
3rd Circuit holds that prison camp can be similar to community corrections center. (350) Defendant was convicted of escaping from Allenwood Federal Prison Camp. The district court denied defendant a reduction under section 2P1.1(b)(3) for an escape from the non-secure custody of a community corrections center or similar facility. The 3rd Circuit remanded, finding that the court did not adequately consider whether Allenwood was sufficiently similar to a community corrections center (CCC). A court must consider both the “pre-release” component and the “community corrections” component of a CCC. Here, the court only compared Allenwood’s program to the pre-release component. The 3rd Circuit rejected decisions by other courts holding that section 2P1.1(b)(3) does not cover prison camps. Instead, courts must determine on a case-by-case basis whether the conditions at a specific camp are sufficiently similar to warrant the reduction. U.S. v. Hillstrom, 988 F.2d 448 (3rd Cir. 1993).
3rd Circuit finds no basis for departure in fact that prison was nonsecure facility. (350) Affirming the district court’s order, the Third Circuit held that because the Sentencing Commission had adequately distinguished between escape from secure vs. nonsecure facilities, the fact that the defendant had walked away from a nonsecure facility was not grounds for departure. See § 2P1.1(b)(2). Furthermore, the district court’s finding that the circumstances were not atypical was not an abuse of discretion or clearly erroneous. U.S. v. Medeiros, 884 F.2d 75 (3rd Cir. 1989).
3rd Circuit holds that downward departure in escape cases is not warranted even though escape is considered in offense level and criminal history calculation. (350) Defendant argued that the Commission failed to consider that the guidelines provide for enhancement of criminal history categories in escape cases even though escape from prison is an essential element of the offense. The Third Circuit found no problem, holding that district courts have no authority to depart downward to compensate for the double counting effect. Relying on its prior decision in U.S. v. Ofchinick, 877 F.2d 251 (3rd Cir. 1989), the court held that the Commission was entitled to punish more severely one who commits another offense, including escape, shortly after conviction for an offense. U.S. v. Medeiros, 884 F.2d 75 (3rd Cir. 1989).
3rd Circuit holds prison escapee may receive enhancement of criminal history for escape even though this is an element of the offense. (350) In these two unrelated cases, the trial court enhanced the criminal history categories of each escapee by three points. Section 4A1.1(d) provides for a two point increase if the defendant committed the offense while serving a sentence of conviction. Section 4A1.1(e) provides for a one point increase if the offense was committed less than two years after release from prison. Applying a plenary standard of review to this guidelines construction issue, the 3rd Circuit held that the two point increase was permissible under these circumstances because a defendant’s criminal history must be calculated independently of the offense level. As to the second point, the 3rd Circuit found that application note 5 to § 4A1.1 provides that the section applies if the defendant is still in confinement. An escape does not constitute an end to confinement. U.S. v. Ofchinick, 877 F.2d 251 (3rd Cir. 1989).
4th Circuit says that minimum-security prison is a secure facility. (350) Defendant escaped from the Federal Correctional Institution in Morgantown, W.Va., a minimum-security prison with a four foot high perimeter fence. Defendant asked for a reduction under § 2P1.1(b)(3) for escaping from non-secure custody of a community corrections center or similar facility. Non-secure custody is defined in note 1 to § 2P1.1 as “custody with no significant physical restraint.” The 4th Circuit held that Morgantown FCI was a secure facility because it had a significant physical restraint–the four foot perimeter fence. Because Morgantown FCI was a secure facility, the court did not address whether the prison was “similar” to a community corrections facility. U.S. v. Sarno, 24 F.3d 618 (4th Cir. 1994).
4th Circuit holds that courts may impose concurrent sentences for escapes committed while defendant was in custody. (350) Defendant pled guilty to one count of escape and received a sentence consecutive to the unexpired term she was already serving. The district court indicated its belief that it was without discretion to consider a concurrent sentence. The 4th Circuit held that a court retains discretion to impose a second sentence concurrent to the unexpired term of an earlier sentence, despite language in guideline 5G1.3 to the contrary. The concurrent sentence could be imposed if the court followed procedures for departing from the sentencing guidelines. U.S. v. Rogers, 899 F.2d 917 (4th Cir. 1990).
5th Circuit denies reduction for escape from prison camp. (350) Defendant escaped from a federal prison camp in violation of 18 U.S.C. § 751(a). He argued that he was entitled to a reduction under § 2P1.1(b)(3) for an escape from “the non-secure custody of a community corrections center, community treatment center, ‘halfway house,’ or similar facility.” The Fifth Circuit noted that it rejected a similar argument in U.S. v. Shaw, 979 F.3d 41 (5th Cir. 1992). Even if Shaw was wrongly decided, one panel cannot overrule or ignore another panel’s prior decision. U.S. v. Ruiz, 180 F.3d 675 (5th Cir. 1999).
5th Circuit upholds basing escapee’s eligibility for reduction on maximum possible sentence for crime. (350) Section 2P1.1(b)(3) provides for an offense level reduction for a defendant who escapes from a non-secure halfway house. However, this reduction is not available if the defendant, while away, commits an offense punishable by imprisonment for a year or more. After escaping from a halfway house, defendant was convicted in Texas for driving while intoxicated. He argued that § 2P1.1(b)(3) violated equal protection because the maximum penalty for drunk driving in Texas is two years but the maximum penalty in other states is less than one year. The Fifth Circuit rejected the claim, holding that focusing on the maximum possible sentence (rather than the sentence actually received) is a rational method for determining the seriousness of a crime. And an offense committed after an escape is a legitimate factor to consider in imposing a sentence for that escape. U.S. v. Mendiola, 42 F.3d 259 (5th Cir. 1994).
5th Circuit holds that non-secure facility escaped from must be similar to halfway house to receive reduction. (350) Defendant pled guilty to unlawful escape from a federal prison camp. Section 2P1.1(b)(3) provides for a four-level reduction for escape from the non-secure custody of a correction center, community center, halfway house or similar facility. The 5th Circuit held that to receive such a reduction, the district court must not only find that the defendant escaped from non-secure custody, but that the facility escaped from is a facility similar to a community corrections center, community treatment center, or halfway house. Here, the district court correctly concluded that a federal prison camp is not similar to these types of institutions. The facilities listed in section 2P1.1(b)(3) are all integrated into the community. A prison camp, even if there are no perimeter barriers, is an environment separated from the community. U.S. v. Shaw, 979 F.2d 41 (5th Cir. 1992).
5th Circuit affirms upward departure and abuse of trust enhancement for prison guard who introduced drugs into prison. (350) Defendant, a prison guard, was involved with drug offenses at the prison. He contended an upward departure for placing prison security at risk was improper because he had already received an enhancement under guideline section 3B1.3 for abuse of trust. The 5th Circuit affirmed the grounds for departure, ruling that the specific offense characteristic of using one’s role as a prison guard to commit the offense was not taken into account by the abuse of trust enhancement. The analogy to section 2P1.2 was not apt because defendant was sentenced under section 2D1.1 for unlawful drug trafficking. Defendant was more than a mere law enforcement officer who engaged in a prohibited transaction; he was prison guard who engaged in a prohibited transaction while charged with maintaining prison security. It was not improper for the district court to depart three levels, rather than the two, as defendant argued based upon an analogy to section 2P1.2. A sentencing court need not resort to analogies when departing under section 5K2.0. U.S. v. Siciliano, 953 F.2d 939 (5th Cir. 1992).
5th Circuit holds that enhancement for escape while serving a sentence does not violate double jeopardy. (350) Defendant failed to return to a rehabilitation center after checking out for work. Three points were added to his criminal history score for committing the offense while under a criminal justice sentence and for committing the offense less than two years after release from incarceration. The 5th Circuit rejected defendant’s argument that addition of the three points gave double effect to his custodial and conviction status and constituted multiple punishment contrary to the double jeopardy clause. “[T]he Sentencing Commission apparently intended to punish escape from confinement under sentence more heavily than escape from some sort of pretrial custody.” Since the sentence did not exceed the statutory maximum punishment authorized by the legislature, the sentence did not violate double jeopardy. U.S. v. Bigelow, 897 F.2d 160 (5th Cir. 1990).
5th Circuit upholds separate enhancement and consecutive sentence for escape. (350) The 5th Circuit held that the district court properly enhanced defendant’s base offense level for escape (§ 2P1.1(a)(1) by 2 points under § 4A1.1(d) for committing the escape while he was in the custody of the Attorney General, and by one point under § 4A1.1(e) for committing the escape within two years of his original conviction. The court found that the Commission intended this “double whammy.” Moreover, since the escape was a separate offense from the crime for which he was in prison, consecutive sentences were proper. U.S. v. Vickers, 891 F.2d 86 (5th Cir. 1989).
6th Circuit finds defendant did not voluntarily return to prison camp. (350) Defendant and three inmates walked out of a prison camp without authorization, were picked up by a friend, and taken to a nearby motel. Several hours later, the friend drove the four inmates back to the camp, but after seeing a sheriff’s patrol car, the inmates elected not to exit the vehicle, and the friend drove away from the camp. The deputy eventually pulled the car over for a routine traffic stop. After the deputy noticed the men’s prison uniforms, he asked them if they were inmates. They admitted they were, the prison camp was notified, and the men were arrested. Defendant pled guilty to escaping from a federal prison camp. Section 2P1.1(b)(2) authorizes a seven-level reduction if a defendant “escaped from nonsecure custody and returned voluntarily within ninety-six hours.” The Sixth Circuit upheld the denial of the § 2P1.1(b) (2) reduction, agreeing that defendant did not “voluntarily” return to the prison camp. Defendant did not return to the camp when he had the opportunity to do so, i.e. when his friend drove him and the other inmates back to the camp. Further, he admitted his status as an inmate only after the sheriff’s deputy had pulled over the car in which he was riding. U.S. v. Holcomb, 625 F.3d 287 (6th Cir. 2010).
6th Circuit holds that Michigan “failure to report” escape was not a violent felony. (350) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924, based in part on the district court’s finding that his prior Michigan conviction for escape was a “violent felony.” The Michigan law included a jail break, but also extended to defendant, even though his “escape” was simply stepping off a public Greyhound bus (where he was unaccompanied by any correctional officer ) and failing to report to the facility to which he was being transferred. The Sixth Circuit held that the Michigan escape was not a violent felony, disagreeing with those circuits that have held that a “walk away” should be considered categorically violent. Those circuits have reasoned that the potential risk officers might encounter in attempting to re-apprehend the escapee is serious enough to justify characterizing the offense as violent. However, the same is true as to the capture of any lawbreaker, and under this logic, all crimes become crimes of violence. See U.S. v. Thomas, 333 F.3d 280 (D.C. Cir. 2003). In addition, Michigan law does not define escape as a continuing offense. It is complete when the defendant leaves custody without having been discharged. A federal sentencing court considering an ACCA enhancement under the categorical approach must take state law as it finds it, including state courts’ interpretation of state law. A failure to report escape in a jurisdiction that defines escape as complete upon leaving custody without having been discharged is not categorically a violent felony. U.S. v. Collier, 493 F.3d 731 (6th Cir. 2007).
6th Circuit holds that court’s reference to incorrect standard did not make guideline sentence unreasonable. (350) Defendant was convicted of escaping from a community corrections center, in violation of 18 U.S.C. § 751(a). Defendant asked for a variance because while the guidelines treated his escape as a crime of violence, his escape was not violent. The district sentenced defendant to 37 months, the lowest sentence within the recommended guideline range, finding such a sentence was “reasonable.” However, a district court’s job is not to impose a “reasonable” sentence. Rather, the court’s mandate is to impose “a sentence sufficient, but not greater than necessary, to comply with the purposes” of § 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task. Despite the court’s comments suggesting it thought its obligation was to impose a reasonable sentence, the Sixth Circuit nonetheless affirmed the guideline sentence. A guideline sentence is entitled to a presumption of reasonableness. Such a presumption can be rebutted by an “absence of evidence in the record that the district court considered all of the relevant section 3553(a) factors.” There was no such shortcoming here. The court considered all of the § 3553(a) factors, considered defendant’s argument regarding the nonviolent nature of his escape, and explained that he would still sentence defendant within the guidelines range because the court considered his offense to be quite serious and thus promoting respect for the law required such a sentence. The court’s reference to a reasonableness standard did not render defendant’s sentence unreasonable in the face of the court’s satisfaction of the post-Booker sentencing mandates. U.S. v. Davis, 458 F.3d 505 (6th Cir. 2006).
6th Circuit holds that transfer of drugs to prisoner constituted “distribution.” (350) Defendant transferred drugs to her brother while he was in prison, in violation of 18 U.S.C. § 1791(a)(1) and (2). Guideline § 2P1.2, the guideline for providing or possessing contraband in prison, provides for a cross-reference to § 2D1.1, the drug trafficking guideline, if “the object of the offense was the distribution of a controlled substance.” Defendant challenged the application of this cross-reference, arguing that the transfer of drugs to her brother did not constitute a distribution because the government did not present any evidence as to what her brother intended to do with the drugs. The Sixth Circuit held that a “transfer” constitutes a “distribution” for purposes of this section. It was irrelevant what purpose defendant’s brother may have had for the drugs. Defendant did not simply possess the contraband but distributed it to her brother. U.S. v. Gregory, 315 F.3d 637 (6th Cir. 2003).
6th Circuit upholds reckless endangerment increase despite denial of reduction for same conduct. (350) The escape guideline, § 2P1.1(b) (3), mandates a four-level decrease in offense level if the defendant escaped from a halfway house. This reduction is not applicable if during the escape the defendant committed an offense punishable by one year or more of imprisonment. The district court did not apply the reduction, finding that defendant assaulted state and federal officers during his escape from a halfway house. The court also applied a § 3C1.2 increase for “recklessly creat[ing] a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” Note 1 says this enhancement is not applicable where the court has already applied an equivalent or greater increase based on the same conduct. The Sixth Circuit held that the reckless endangerment increase was not improper even though the court had already refused to apply the four-level reduction based on the same conduct. Note 4 to § 1B1.1 says that “[a]bsent an instruction to the contrary, the adjustments from different guideline sections are applied cumulatively (added together).” Note 1 to § 3C1.2 does not instruct courts to the contrary. Although the district court did not apply the reduction for escape from a halfway house, the court did not increase defendant’s offense level above the base offense level. U.S. v. Durham, 178 F.3d 796 (6th Cir. 1999).
6th Circuit finds escape from non-secure prison camp is not similar to halfway house. (350) Defendant walked away from a federal prison camp. He argued that he was entitled to a § 2P1.1(b)(3) reduction for an escape from a non-secure community corrections center, community treatment center, halfway house or “similar” facility. The Sixth Circuit held that a non-secure federal prison work camp is not “similar” to a community corrections center, community treatment center or halfway house. Although the issue was debatable, in the interest of uniformity, the court deferred to the reasoning of the five circuits who have previously decided this issue. U.S. v. McCullough, 53 F.3d 164 (6th Cir. 1995).
6th Circuit upholds adding points under 4A1.1(d) and (e) for escape attempt. (350) Defendant who was convicted of attempting to escape received two points for committing the offense less than two years after release (4A1.1(2)) and one point for being under a criminal justice sentence at time of the offense (4A1.1(d)). The 6th Circuit upheld application of the points by relying on Application Note 5 to § 4A1.1, which indicates that subsection (e) “applies if the defendant was still in confinement on such a sentence.” A November 1, 1989 amendment supports the interpretation by adding “or while in imprisonment or on escape status on such a sentence.” Additionally, the Commission’s answers to the most frequently asked questions issued May 5, 1988 supported adding of the points. U.S. v. Carroll, 893 F.2d 1502 (6th Cir. 1990).
6th Circuit holds offenses which continue after amendment of statute are subject to punishment under it. (350) A prison escapee claimed that the district court erred in sentencing him to a three year term of supervised release because 18 U.S.C. § 3583(b)(2) only provided for two years of supervised release at the time of his escape. However, the statute was amended effective December 7, 1987, to provide for a three year term, and the defendant was captured on April 20, 1988. Escape is a continuing offense, and is therefore punishable under statutes which are amended while the offense is still continuing. U.S. v. Vanover, 888 F.2d 1117 (6th Cir. 1989).
7th Circuit upholds guideline career offender sentence for “walk-away” escape from halfway house. (350) Defendant escaped from a Salvation Army halfway house. Within 24 hours of the escape, he realized the error of his decision and voluntarily returned to the facility. He pled guilty without a plea agreement, and the district court found that he was a career offender, and sentenced him to 37 months. The Seventh Circuit affirmed the sentence as reasonable. Although defendant argued that the judge failed to consider the circumstances of his escape under § 3553 (a)(1), the judge’s statement on the consequences of defendant’s escape was more than adequate. Further, the court provided ample opportunity for defendant to direct its attention to factors contained in § 3553(a) that possibly warranted a sentence different than that suggested by the guidelines. The court heard defendant’s argument that the escape was a simple mistake, and that what he needed was drug treatment, not imprisonment. The court explicitly rejected this plea, reasoning that, given defendant’s criminal record and the strong policy expressed in the guidelines, the 37-46 month sentencing range was appropriate. U.S. v. Rivera, 463 F.3d 598 (7th Cir. 2006).
7th Circuit says that defendant who was warned by corrections officer did not voluntarily return to camp. (350) Defendant wandered away from a minimum security prison “camp.” He had been gone for seven hours and was walking away from the camp on a road about two miles away when an off-duty corrections officer noticed him. Defendant initially tried to hide behind a sign. When the officer pulled beside him and offered a ride, defendant initially accepted until he noticed the officer’s uniform. The officer then informed defendant that he had the choice of trying to run and almost certainly being caught by U.S. marshals, or he could get into the truck and be transported back to camp. Defendant chose the latter option, and eventually was convicted of escape, in violation of 18 U.S.C. § 751(a). The Seventh Circuit agreed that defendant was not entitled to a seven-point reduction under § 2P1.1(b)(2) for a “voluntary return” to custody. It was only after the corrections officer warned defendant that defendant could either return with the officer to the camp or be chased down by U.S. marshals that defendant became cooperative. It was reasonable for the district court to conclude that defendant’s “willingness” to cooperate was not the type that § 2P1.1(b)(2) had in mind. U.S. v. King, 338 F.3d 794 (7th Cir. 2003).
7th Circuit reverses where shooting was not relevant conduct in escape. (350) Defendant was arrested after he ran from a crack house with a handgun. He was taken to a police station, where he escaped. A week later, while still on the lam, he was involved in a shooting and was arrested later that day hiding under a bed where officers found nine zip-lock bags of crack cocaine. He pled guilty to being a drug user in possession of a firearm and escape, in return for dismissal of the shooting and crack cocaine charges arising out of the later incidents. At sentencing, the judge found that the later incidents were “relevant conduct” for the escape and the original firearms charge and used the cross-reference in § 2K2.1(a) to sentence defendant under the attempted murder guideline § 2A2.1. On appeal, the Seventh Circuit reversed, holding that the shooting was not relevant conduct for the escape and in any event, the guideline for escape does not include a cross-reference which would allow sentencing on the basis of attempted murder. There was “no principled way to bridge the gap between the firearms charge and the shooting.” The shooting was not part of an attempt to escape detection, nor was defendant trying to silence someone who was planning to inform the authorities of his whereabouts. In fact, as defendant pointed out, the shooting simply called attention to defendant, and he was quickly apprehended after he pulled the trigger. U.S. v. Taylor, 272 F.3d 980 (7th Cir. 2001).
7th Circuit holds that prison camp is not similar to community corrections center. (350) Defendant walked away from a federal prison camp in sub-zero temperatures without any apparent idea as to how to obtain shelter. He was quickly recaptured in a wooded area not far from the prison. Defendant requested a § 2P1.1(b)(3) reduction for an escape from a non-secure community corrections center, community treatment center or halfway house or “similar” facility. The Seventh Circuit refused, holding that a federal prison camp is not similar to a community corrections center, community treatment center or halfway house. U.S. v. Stalbaum, 63 F.3d 537 (7th Cir. 1995).
7th Circuit upholds enhancement for kidnapping to facilitate escape, even though the escape was already considered in criminal history. (350) Defendant argued that enhancing his sentences for kidnapping to facilitate an escape under § 2A4.1(5)(A) would result in a double penalty for his escape because the fact that he was an escaped prisoner was considered in determining his criminal history category. The 7th Circuit rejected the argument, ruling that the “escape” factor utilized to determine the criminal history category under § 4A1.1(e) applies to any and all crimes committed during an escape, while the adjustment for kidnapping to facilitate an escape applies only in the very limited circumstance where a kidnapping is part of a course of conduct that actually contributes to the success of the escape itself. Thus the court upheld a four level enhancement for each kidnapping count. U.S. v. White, 903 F.2d 457 (7th Cir. 1990).
7th Circuit upholds addition of three points to criminal history for escapes from custody. (350) Defendant pled guilty to escape and argued that the addition of three criminal history points under U.S.S.G. § 4A1.1(d) and (e) constitutes double counting and a violation of due process. The 7th Circuit disagreed. The plain language of 4A1.1(d) and (e) and the Commentary “clearly requires the addition of three criminal history points to defendants convicted of escaping from jail.” U.S. v. Jiminez, 897 F.2d 286 (7th Cir. 1990).
8th Circuit holds that guideline sentence for smuggling powder cocaine into federal prison was reasonable. (350) Defendant, a former federal corrections officer, pled guilty to smuggling powder cocaine into a federal prison. Her advisory guideline range was 46-57 months, and the court sentenced her to 46 months. She claimed that defendants convicted of smuggling drugs into a federal prison are treated four times more harshly than a defendant convicted of selling the same amount of drugs on the street, and that § 2P1.2, the guideline applicable to prison offenses, created an unreasonable sentencing disparity. The Eighth Circuit disagreed. While it might be “unreasonable” to treat similarly situated defendants differently, a defendant who smuggles drugs into a federal prison, especially one who is a federal corrections officer, is guilty of conduct markedly different from selling drugs on the street. Drug dealing, in all its forms, creates a serious risk of potential harm to individuals and society. When it involves smuggling drugs into a correctional facility, “additional and unique risks of harm to inmates and corrections staff arise.” The sentence was reasonable. The court considered the mitigating factors defendant raised (strong employment record, financial support for son, low risk of recidivism), but rejected her arguments because it believed a lower sentence would not adequately reflect the sentencing goals of § 3553(a). U.S. v. Akers, 476 F.3d 602 (8th Cir. 2007).
8th Circuit agrees that defendant did not voluntarily return to custody. (350) The 8th Circuit held that defendant was not entitled to a reduction under section 2P1.1(b)(2) for escaping from non-secure custody and returning voluntarily. The district court could properly conclude that defendant did not return voluntarily, since he surrendered only when he saw deputy marshals crossing the street to find and arrest him. U.S. v. Pynes, 5 F.3d 1139 (8th Cir. 1993).
8th Circuit holds defendant who escaped from revocation of supervised release was in custody. (350) The escape guideline, section 2P1.1, calls for a base offense level of 13, if the custody from which the defendant escaped “is by virtue of an arrest on a charge of felony, or conviction of any offense.” Otherwise the base offense level is 8. The 8th Circuit held that a defendant who escaped from custody while awaiting revocation of supervised release was in custody “for conviction of any offense,” and therefore he correctly received a base offense level of thirteen. U.S. v. Pynes, 5 F.3d 1139 (8th Cir. 1993).
8th Circuit says escape status began when defendant violated furlough, not when he was due back. (350) Defendant argued for the first time on appeal that he was entitled to a seven level reduction under section 2P1.1(b)(2) for escaping from a non-secure custody and then returning voluntarily within 96 hours. The 8th Circuit found no plain error in the denial of the reduction. Under a furlough agreement, defendant was required to remain at his wife’s residence. He violated that agreement on the evening of October 24. He was properly placed on escape status at that time, rather than when he was due back at the corrections center the next day. He did not turn himself in until October 29 at 1 pm, more than 96 hours after he was placed on escape status. U.S. v. McLemore, 5 F.3d 331 (8th Cir. 1993).
8th Circuit adds criminal history points for escape committed while under criminal justice sentence. (350) Defendant argued that guideline sections 4A1.1(d) and (e), which add criminal history points for committing the offense of escape while under a criminal justice sentence, constituted impermissible double counting. The 8th Circuit, following the other circuit courts that have considered this issue, rejected this argument. The unambiguous language of the enhancement provision does not provide any exception for the offense of escape. Moreover, because the escape guideline applies to both an escape from prison and assisting an escape from prison, it was not impermissible to enhance a defendant’s criminal history when the offense was committed by one already incarcerated. U.S. v. Thomas, 930 F.2d 12 (8th Cir. 1991).
8th Circuit holds that circumstances of defendant’s failure to return from a furlough justified downward departure. (350) While on a 7-day furlough from a local correctional center, defendant became intoxicated and remained in that condition throughout her week-long furlough. She did not have enough money to purchase a ticket to return to jail as the conditions of her furlough required. However, she telephoned officials at the correctional facility and told them of her situation. The Bureau of Prisons extended the furlough but defendant still had no money to buy a bus ticket. Therefore, she was placed on escape status and arrested by police shortly thereafter. She then pled guilty to a charge of escape. Under the guidelines, the sentence range was 12-18 months and was required to be served consecutively. However, the district court imposed a four month sentence to be served concurrently with the underlying sentence and the government appealed the departure. The 8th Circuit affirmed the departure, holding that the unique circumstances of the defendant’s case properly justified a departure. Contrary to the government’s assertions, the court did not depart because the defendant was an alcohol abuser or because she was intoxicated during the furlough, but because it found that the officials charged with her custody and care knew of her addiction and irresponsibly released her into a situation “they knew or should have known she would be unable to handle”, that is, in supervised release following successful alcohol abuse treatment. U.S. v. Whitehorse, 909 F.2d 316 (8th Cir. 1990).
8th Circuit upholds downward departure for defendant who voluntarily turned himself in nine days late. (350) Defendant pled guilty to failing to surrender himself to service his sentence. He voluntarily surrendered himself nine days late after his probation was revoked. The 8th Circuit upheld a fifteen month sentence, which was a downward departure from the 24-30 month guideline range. Under the three-part test of U.S. v. Diaz-Villafane, 874 F.2d 43 (1st Cir. 1989) the departure was permissible. Guidelines § 2J1.6 does not allow for the widely varying times between when defendant first fails to appear and when he actually appears. Nor does it consider the voluntariness of the surrender. The defendant was sentenced to over one month in prison for each day he was late. The court found the fact that the defendant had also received credit for acceptance of responsibility did not preclude a downward departure. U.S. v. Crumb, 902 F.2d 1337 (8th Cir. 1990).
8th Circuit upholds consecutive sentence for escape despite error in presentence report. (350) Defendant argued that the presentence report erred in advising the district court that a sentence for escape must run to the unexpired sentence that the defendant was serving. The 8th Circuit noted that the argument was not raised in the district court and therefore did not have to be considered on appeal. Moreover, the court concluded that even if the argument had been made, a consecutive sentence would have been imposed because any other policy would make escapes “punishment free.” U.S. v. Creed, 897 F.2d 963 (8th Cir. 1990).
8th Circuit holds that guidelines for escape did not violate Congressional directive. (350) Defendant argued that the guidelines for the offense of escape violated the governing statute because the Commission “irrationally failed to consider and adjust” the offense level according to the method of escape or the kind of facility from which the defendant escaped. The 8th Circuit rejected the argument, holding that the Commission’s failure to include “some of the finer distinctions,” did not render U.S.S.G. § 2P1.1 an unreasonable response to the Congressional directive. U.S. v. Evidente, 894 F.2d 1000 (8th Cir. 1990).
9th Circuit interprets statute requiring consecutive sentence for possessing drugs in prison. (350) Under 18 U.S.C. § 1791, it is a federal crime to possess or provide contraband in a federal prison. Section 1791(c) states that any sentence imposed under § 1791 for a violation involving a controlled substance must be consecutive to any other sentence imposed for an offense involving such a controlled substance. Defendant possessed marijuana in prison and provided the same marijuana to another inmate; defendant also was convicted of possessing marijuana on a separate occasion. Defendant pleaded guilty to three counts of violating § 1791, and the district court imposed consecutive sentences on all three counts. The Ninth Circuit held that the statute required consecutive sentences as to the two counts arising from the same drugs, but that the sentence resting on defendant’s separate possession of marijuana need not be consecutive. U.S. v. Joseph, 716 F.3d 1273 (9th Cir. 2013).
9th Circuit says failure to appear triggers increase for offense committed while on bail. (350) A federal statute governing release pending trial, 18 U.S.C. § 3147, requires imposition of an additional consecutive sentence if the defendant commits a crime while on release on bond. Defendant was convicted of failure to appear, in violation of 18 U.S.C. § 3146, because he absconded and did not attend his sentencing on a drug-trafficking offense. The Ninth Circuit held that a defendant convicted of failure to appear may be subject to a sentence enhancement under § 3147 for committing an offense while on release. U.S. v. Rosas, 615 F.3d 1058 (9th Cir. 2010).
9th Circuit upholds obstruction and failure-to-appear increases against double counting claim. (350) Under 18 U.S.C. § 3147, a defendant convicted of failure to appear while on bail for another offense is subject to an enhanced sentence on the underlying offense. Defendant was convicted of failure to appear when he absconded prior to sentencing on a drug offense. At the consolidated sentencing on the failure to appear and drug offenses, the district court enhanced defendant’s sentence on the drug offense for obstruction of justice under § 3C1.1 based on his failure to appear. The court also imposed an enhancement under § 3147. The Ninth Circuit held that imposition of the obstruction-of-justice and the § 3147 enhancements was not impermissible double counting. U.S. v. Rosas, 615 F.3d 1058 (9th Cir. 2010).
9th Circuit says reduction for voluntary surrender after escape does not apply when arrest is inevitable. (350) The guideline for the offense of escape, in violation of 18 U.S.C. § 751, provides for a seven-level reduction in offense level if defendant escapes from a non-secure facility and voluntarily returns to custody within 96 hours. U.S.S.G. § 2P1.1(b)(2). Defendant escaped from a halfway house. Three days later, a business owner found defendant trespassing on his land and called the police. Defendant stayed on the property and waited for the police to arrive. The Ninth Circuit held that defendant was not entitled to the seven-level adjustment because he had surrendered only when faced with the prospect of being arrested. U.S. v. Blandin, 435 F.3d 1191 (9th Cir. 2006).
9th Circuit finds that escape begins for purposes of guideline when defendant leaves custody. (350) The escape guideline, § 2P1.1, provides for a 7-level downward adjustment if the defendant self surrenders within 96 hours of his escape. Defendant walked away from a prison work detail and then surrendered to authorities about 99 hours later. He claimed, however, that he should receive the 7-level adjustment because he was not officially placed on escape status until several hours after he escaped. The Ninth Circuit rejected this contention and held that a prisoner escapes for purposes of the guideline when he departs from lawful custody with the intent to evade detection, even if no one sees him escape. U.S. v. Novak, 284 F.3d 986 (9th Cir. 2002).
9th Circuit holds custody after revocation of supervised release is “by virtue of” the underlying conviction. (350) Defendant was convicted of escape under 18 U.S.C. § 751(a) after he walked away from a community corrections center while serving a sentence after revocation of supervised release. The district judge applied a base offense level of 13 under guideline § 2P1.1(a)(1), ruling that the custody was “by virtue of” a conviction of an offense. On appeal, the Ninth Circuit rejected defendant’s argument that his custody was “otherwise” (which would have mandated a base offense level of 8). The Ninth Circuit agreed with U.S. v. Evans, 159 F.3d 908, 913 (4th Cir. 1998) and U.S. v. Pynes, 5 F.3d 1139, 1140 (8th Cir. 1993), that a defendant whose term of supervised release has been revoked is in custody “by virtue of” his original conviction. Therefore the district court was correct in applying base offense level 13. U.S. v. Patterson, 230 F.3d 1168 (9th Cir. 2000).
9th Circuit denies reduction where defendant committed a felony while on escape, even though not convicted. (350) Guideline § 2P1.1(b)(3) provides a four-level reduction for escape from non-secure custody, unless the defendant “committed” a felony while unlawfully absent from custody. Agreeing with the Eleventh Circuit’s decision in U.S. v. Strachan, 968 F.2d 1161 (11th Cir. 1992), the Ninth Circuit held that a district court can deny the reduction if a preponderance of the evidence demonstrates that the defendant committed the disqualifying offense, even if there has been no formal conviction. See also U.S. v. Durham, 178 F.3d 796, 799 (6th Cir. 1999) (assuming, without addressing the question, that § 2P1.1(b)(3) does not require either a conviction or an indictment in order to deny the reduction). Thus, in the present case, the Ninth Circuit upheld the district court’s refusal to reduce defendant’s sentence because the evidence was sufficient to support a finding that he committed fraud in connection with the false identification documents he had in his possession at the time of his arrest, in violation of 18 U.S.C. § 1028. U.S. v. Charlesworth, 217 F.3d 1155 (9th Cir. 2000).
9th Circuit says court may consider loss of parole eligibility in deciding whether to depart downward. (350) Defendant argued that the court erred by ordering his sentence to run consecutively to the pre-guidelines sentence he was serving when he escaped. He argued that there should be a per se rule requiring the court to depart downward by ordering a concurrent sentence for a defendant who commits a subsequent crime while serving a pre-guidelines sentence, because the Parole Commission is almost certain to increase the time that the defendant will serve on his original sentence. The 9th Circuit, following the 6th Circuit’s decision in U.S. v. Stewart, 917 F.2d 970, 974 (6th Cir. 1990), rejected the argument, stating that although the district court “may consider a defendant’s loss of parole eligibility as a factor in its decision whether to depart downward, it is not required to grant the departure.” Since all parties agreed that the district court exercised its discretion here, the appeal was dismissed. U.S. v. Moss, 972 F.2d 273 (9th Cir. 1992).
9th Circuit holds that escapee from prison camp is not entitled to decrease for escape from “non-secure” custody. (350) Defendant walked away from the federal prison camp at Lompoc, California and remained a fugitive for almost a year. He was sentenced for escape, and argued that the district court should have decreased his offense level by four levels under U.S.S.G. 2P1.1 for escaping from the “non-secure custody of a community corrections center, community treatment center ‘half-way house,’ or similar facility.” The 9th Circuit rejected the argument, agreeing with the district court that “federal prison camps are generically different from the facilities listed in section 2P1.1(b)(3).” U.S. v. McGann, 960 F.2d 846 (9th Cir. 1992).
9th Circuit rules that sentence enhancement for escape under 4A1.1 is not double punishment. (350) Defendant received additional “criminal history” points under 4A1.1 subsection (d) for escape while serving a criminal sentence and under subsection (e) because it occurred within two years of the offense for which she was in custody. Defendant argued that because every escape is from custody and within two years of the imprisonment, those factors are figured into the base points for the offense, and should not be considered again. The 9th Circuit rejected these arguments, noting that some escapes are from pre-trial detention, and that the escape could fall outside the two year period. Accordingly, the Sentencing Commission could properly determine that escape from confinement imposed by a sentence is more serious than escape from another kind of detention, and deserved enhanced punishment. U.S. v. Wright, 891 F.2d 209 (9th Cir. 1989).
9th Circuit applies guidelines to continuing offenses such as escape and failure to appear. (350) Relying on the 3rd Circuit’s decision in U.S. v. Frank, 864 F.2d 992 (3rd Cir. 1988), the 9th Circuit held that the sentencing guidelines apply to continuing offenses — such as escape and failure to appear — initiated before November 1, 1987, but not completed until after November 1, 1987. U.S. v. Gray, 876 F.2d 1411 (9th Cir. 1989).
10th Circuit rejects finding that defendant knew object smuggled into prison contained heroin. (350) Defendant, a correctional counselor, assisted an inmate to smuggle heroin into prison. He pled guilty to conspiracy to introduce a prohibited object into a prison. He testified that the inmate asked him to bring two Christmas gifts from his children, referring to the gifts as “niñas.” He denied knowing that they contained heroin. However, the district court based his sentence under § 2P1.2 on the finding that defendant believed the niñas contained heroin. The Tenth Circuit held that the court’s findings were insufficient to support this conclusion. Although the inmate testified that defendant knew the niñas contained heroin, the district court disbelieved the inmate’s version of the events. The circumstantial evidence relied on by the district court supported the inference that defendant knew the niñas contained a valuable controlled substance, but did not support the inference that defendant knew the niñas contained heroin. U.S. v. Cruz, 58 F.3d 550 (10th Cir. 1995).
10th Circuit rejects downward departure for escape from non-secure prison camp. (350) Defendant escaped from the honor camp at a federal penitentiary. The 10th Circuit held that defendant was not entitled to a reduction under section 2P1.1(b)(3) for an escape from the non-secure custody of a facility like a community corrections center or a halfway house. Under U.S. v. Brownlee, 970 F.2d 764 (10th Cir. 1992), a prison camp is not like these institutions. The district court properly found it lacked discretion to depart downward under section 5K2.0 even though defendant met half the requirements of section 2P1.1(b)(3), i.e., non-secure custody. The Sentencing Commission expressly considered escape from non-secure custody, but chose to grant a reduction only upon prompt return, or upon a showing that the escape was from a community-based facility. U.S. v. Cisneros-Garcia, 14 F.3d 41 (10th Cir. 1994).
10th Circuit says prison camp is not similar to community corrections center or halfway house. (350) Defendant escaped from a federal prison camp and was sentenced under guideline section 2P1.1. Section 2P1.1(b)(3) provides for a four level reduction in offense level “if the defendant escaped from the non-secure custody of a community corrections center, community treatment center, ‘halfway house,’ or similar facility.” The 10th Circuit affirmed the district court’s refusal to apply such a reduction to defendant, holding that a federal prison camp is not a facility providing non-secure custody which is similar to those facilities specified in section 2P1.1(b)(3). The facilities listed in the guideline are all integrated into the community. In contrast, a prison camp, even though there may be no perimeter barriers and residents may have some freedom to come and go, is an environment separated from the community. U.S. v. Brownlee, 970 F.2d 764 (10th Cir. 1992).
10th Circuit affirms upward departure based on defendant’s prison disciplinary record. (350) The court departed upward in sentencing a defendant convicted of possession of a knife in prison, because the guidelines did not adequately reflect the seriousness of defendant’s past criminal conduct, particularly his prison disciplinary record. The 10th Circuit affirmed the departure, analyzing it under the three-step test set forth in U.S. v. White, 893 F.2d 276 (10th Cir. 1990). The first step was satisfied because the guidelines do not mention prison disciplinary sanctions. Guideline § 2P1.2, which covers possession of a knife in prison, did not implicitly consider the possibility that defendant might have a prison disciplinary record. Moreover, information unrelated to the actual offense of conviction can be used in determining a sentence. The second step was met because there was no dispute as to the accuracy of defendant’s disciplinary record. The court held the third step, requiring a departure to be reasonable, was satisfied because defendant was sentenced within the range of the next highest criminal history category. U.S. v. Keys, 899 F.2d 988 (10th Cir. 1990).
10th Circuit holds “escape” sentence was properly enhanced under 4A1.1 because it was committed while defendant was in custody. (350) The district judge gave defendant three “Criminal History” points under § 4A1.1(d) and (e) because his escape offense was committed while he was under a sentence of “imprisonment,” and because it was committed within two years of the offense for which he was in custody. On appeal, defendant pointed out that custody is a necessary element of escape: “escape is not made worse by being committed while in custody. It is made possible by being .ÿ.ÿ. in custody.” Nevertheless, the Tenth Circuit held that it was proper to add the three points, because “the criminal history category is to be determined without regard to the nature of the crime for which the defendant is currently being sentenced,” and the guidelines “clearly and unambiguously call for the addition of three points.” U.S. v. Goldbaum, 879 F.2d 811 (10th Cir. 1989).
11th Circuit says escapee not entitled to reduction for voluntarily returning to custody. (350) An escapee is entitled to a seven-level reduction in offense level if he “escaped from non-secure custody and returned voluntarily within ninety-six hours.” USSG § 2P1.1(b)(2). However, the reduction does not apply “if the defendant, while away from the facility, committed any federal, state, or local offense punishable by a term of imprisonment of one year or more.” The Eleventh Circuit held that defendant was not entitled to the § 2P1.1 reduction because he committed several disqualifying offenses during his escape. Based on witness testimony and evidence submitted during his trial, the district court found that during the January 20th escape, defendant committed the offenses of arson, criminal damage to property, and threatening bodily injury to a person during this escape. Defendant did not offer any contradictory evidence. Moreover, defendant did not “return voluntarily.” “Returned voluntarily” includes voluntarily returning to the institution or turning one’s self in to a law enforcement authority as an escapee not in connection with an arrest or other charges. This language clearly assumes that the escapee has reconsidered his actions and intends to surrender. Here, defendant did not return to the prison camp because he had reconsidered his actions. Rather, he intended to continues his escapes and in fact, did so on March 3. U.S. v. Bradford, 277 F.3d 1311 (11th Cir. 2002).
11th Circuit holds that prisoner’s intent to use object as a weapon is element of the offense. (350) Defendant, a federal inmate, was convicted of possessing a “prohibited object.” 18 U.S.C. § 1791(a)(2). Section 1791(d)(1) defines a prohibited object as an object that is “intended to be used as a weapon.” The Eleventh Circuit held that a prisoner’s intent to use an object as a weapon is an element of the offense, not a sentencing factor. The Ninth Circuit, the only other circuit to address the intent component of § 1791, also concluded that intent is an element of the offense charged in the indictment. See U.S. v. Rodriguez, 45 F.3d 302 (9th Cir. 1995). This conclusion is consistent with several factors considered by the Supreme Court to distinguish constitutionally permissible sentence enhancements from the elements of an underlying criminal offense. These factors include (1) the amount of increase in punishment resulting from the fact to be determined; (2) the difficulty of objectively verifying the additional fact; (3) the amount of prejudice to the defendant from the presentation of the additional fact to the jury; and (4) the alleged sentencing provision’s lowering of the burden of proof required for a conviction. All of these factors pointed toward making intent an element of the offense. U.S. v. Allen, 190 F.3d 1208 (11th Cir. 1999).
11th Circuit rules that escape from prison camp is not similar to halfway house. (350) Defendant escaped from Maxwell Federal Prison Camp by walking away from his work detail outside of the security perimeter of the prison camp. Section 2P1.1(b)(3) provides for a four-level reduction in offense level if the defendant escaped from the non-secure custody of a community corrections center, community treatment center, halfway house, or similar facility. The 11th Circuit held that defendant was not entitled to the reduction since he was not in a designated category of detention facility. Although the work detail constituted non-secure custody, the prison camp was not similar to the designated facilities. U.S. v. Tapia, 981 F.2d 1194 (11th Cir. 1993).
11th Circuit says defendant committed offense while escaped, despite no conviction. (350) The escape guideline, section 2P1.1(b)(3), provides for a four-level reduction if the escape was from a non-secure community corrections center or similar facility. However, the reduction does not apply if the defendant, while away from the facility, committed an offense punishable by imprisonment for a year or more. The 11th Circuit rejected defendant’s claim that the reduction was barred only if the defendant had been convicted of such an offense. The Sentencing Commission used the word “committed,” not “convicted.” A court can deny the reduction if it finds, by a preponderance of the evidence, that the defendant committed the disqualifying offense. Here, the evidence was sufficient: defendant was indicted on drug charges which took place during the appropriate period, and he admitted his participation to two law enforcement officers. U.S. v. Strachan, 968 F.2d 1161 (11th Cir. 1992).
11th Circuit affirms reasonableness of six level departure for distributing drugs in prison. (350) Defendant smuggled drugs into jail and distributed them to other inmates. Because of the small quantity, defendant’s base offense level was only 12 under section 2D1.1. The district court departed upward six levels by analogy to section 2P1.2(a)(3), which sets a base offense level of six for providing contraband in a federal penal facility in violation of 18 U.S.C. section 1791. The 11th Circuit affirmed, observing that the sentence did not exceed what defendant would have received if he had been convicted under section 1791. The section 1791 count would not be grouped with his drug counts under section 3D2.1(a) or (b), since different societal interests are harmed by the two offenses. Nor would the two counts be grouped on the basis of drug quantity under section 3D2.1(d), since section 2P1.2 is specifically excluded from the operation of section 3D1.2(d). Finally, the two criminal history points that defendant was assessed under section 4A1.1(d) for being under a criminal justice sentence at the time of the offense did not adequately consider his imprisonment status. U.S. v. Ponder, 963 F.2d 1506 (11th Cir. 1992).
11th Circuit affirms upward departure for damage to government property, disruption of governmental function and endangerment of public. (350) Defendants were convicted of attempting to help a prisoner escape from prison by landing a helicopter in the prison exercise yard. The attempt failed when, after picking up the prisoner, the helicopter crashed. The 11th Circuit affirmed a 10-level upward departure based on the damage to government property, more than minimal planning, disruption of governmental function and endangerment of the public welfare. The one-level increase for damage to government property was justified by the damage to the prison fence. There was a significant disruption of the prison’s function as a result of the attempted escape. In addition to a lockdown of the facility and an extra count of prisoners, local, state and federal law enforcement personnel, paramedics, a Medivac helicopter and firefighting equipment were called to the crash scene. The four-level departure for endangerment to public welfare was justified by the risk involved in flying a helicopter into a small, fenced, occupied prison exercise yard. U.S. v. Kramer, 943 F.2d 1543 (11th Cir. 1991).
11th Circuit says voluntary return to custody may be grounds for downward departure but defendant returned too late. (350) Defendant escaped from a minimum security prison camp. The district court departed downward in part because defendant voluntarily returned to custody three and one-half months after the escape. Guideline § 2P1.1(b)(2) provides for a reduction in offense level based upon a voluntary return to custody less than 96 hours after the escape. The 11th Circuit found that the guidelines do not adequately consider a prisoner’s voluntary return to custody more than 96 hours after the escape, and thus this could be, in appropriate circumstances, grounds for a downward departure. However, the court concluded that an escapee’s return after three and one-half months was too late to support a reasonable departure. U.S. v. Weaver, 920 F.2d 1570 (11th Cir. 1991).
11th Circuit adds 2 criminal history points for escape while under a criminal justice sentence. (350) Defendant escaped from a half-way house. In sentencing defendant, the district court, pursuant to guideline § 4A1.1(d), added two points to defendant’s criminal history score for committing the offense while under a criminal justice sentence. Defendant argued that § 4A1.1(d) did not apply to the offense of escape since the conduct is an element of the crime of escape, and thus is already contained in the base offense level. The 11th Circuit rejected defendant’s argument, noting that it was “reluctant to fashion an exception since the Commission has demonstrated its ability to do so in those areas it has deemed an exception to be appropriate.” Moreover, defendant’s argument failed to recognize that guideline § 2P1.1, the section setting the base offense level for escape, is also applicable to assisting an escape. Therefore, “the combined effect of the offense guideline and the criminal history factor is to sentence an escapee to a greater term of imprisonment than an outside person who assists the prisoner to escape.” U.S. v. Goolsby, 908 F.2d 861 (11th Cir. 1990).
11th Circuit rules consecutive sentence for escape was proper. (350) Defendant argued that the district court should have allowed her to serve her sentence for escape concurrently with her previous sentence for forgery. The Eleventh Circuit disagreed, noting that under both 18 U.S.C. 3584(a) and guideline § 5G1.3 multiple terms of imprisonment imposed at different times are to run consecutively. On the facts of this case, “the district court could have ordered the defendant to serve her sentences concurrently only if it had followed the procedures for departing from the guidelines.” U.S. v. Fossett, 881 F.2d 976 (11th Cir. 1989).
Alabama District Court rules departure for escape case was warranted due to a desire to see recently departed family and intention to immediately return. (350) In sentencing a defendant who had escaped from a federal prison work camp, the District Judge departed from the guideline range of 12-18 months and imposed a 4 month consecutive sentence. The reasons for the departure were that the defendant intended to return within a short period of time, was motivated solely by the desire to see his recently departed family and to have conjugal relations with his wife. The court stated that it intended to treat the defendant just like an offender who left a nonsecure facility and voluntarily returned within 96 hours (§ 2P1.2(b)(2)) in the hopes that the Commission would thereby enact guidelines for escape cases which took into greater account the reasons and circumstances surrounding an offender’s escape from and return to incarceration. U.S. v. Birchfield, 709 F.Supp. 1064 (M.D. Ala. 1989).
Commission provides increase for distributing drugs in prison (350) In Amendment 514, effective November 1, 1995, the Commission added a new subsection to §2D1.1(b) to provide a two level increase if the object was to distribute drugs in prison. The amendment also provides a cross-reference to 2P1.2 to provide an enhancement for simple possession of drugs in prison.
Commission strengthens guidelines for contraband in prison. (350) In Amendment 525, effective November 1, 1995, the Commission increased the offense level for methamphetamine in prison, and provided a cross-reference to the drug guidelines if the object of the offense was the distribution of a controlled substance. The amendment also provides for an offense level of at least 26 for defendants convicted under 18 U.S.C. § 1791(b)(1).