§640 Community Confinement
6th Circuit holds that term in halfway house was not plain error. (640) Defendant was convicted of selling a firearm to a convicted felon, and distribution of morphine. Defendant objected for the first time on appeal to his 18-month term in a halfway house. The Sixth Circuit found no plain error. Defendant argued that the imposition of community confinement was “unexplained,” but then immediately conceded that the court discussed his addiction and the need for post-incarceration structure to prevent recidivism and relapse into addiction. Moreover, the court considered the §3553(a) factors, finding that defendant was a first-time felony offender but that selling an AK-47 was “a serious matter [and] can do great harm,” that the sentence could achieve the goal of deterrence, and that defendant could get needed drug treatment through the sentence. The court also discussed in depth its options in sentencing and considered the guidelines’ recommended range. U.S. v. Henry, __ F.3d __ (6th Cir. Apr. 8, 2016) No. 15-5578.
1st Circuit approves intermittent confinement in non-guidelines case. (640) Defendant was convicted of willfully failing to pay child support under the Child Support Recovery Act (CSRA), a Class B misdemeanor to which the guidelines do not apply. The district court sentenced him to five years probation, on condition that he remain in custody for 12 hours a day for the first 12 months of the probationary period. The First Circuit upheld the “intermittent confinement.” Under 18 U.S.C. § 3563(b)(11), a court may in its discretion require a defendant to remain in the custody of the Bureau of Prisons during nights, weekends, or other intervals of time, totaling no more than one year or the term of imprisonment authorized for the offense. If defendant were in the custody of the Bureau of Prisons 12 hours each night, that total time in a year would be six months. To consider only the period of time (one year) for which the court imposed the condition of probation would ignore the number of hours that defendant actually would be confined. U.S. v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997).
1st Circuit holds that community service is not equivalent to intermittent confinement. (640) Defendant’s minimum guideline range was one month. Thus guideline § 5C2.1(c)(2) permitted the substitution of a sentence of probation conditioned on intermittent confinement “in prison or jail or community confinement in a community treatment center, halfway house, or similar residential facility,” under 5C2.1(e). Instead of these alternatives, the district court imposed 1,000 hours of community service. The 1st Circuit reversed, holding that community service is not to be considered an acceptable substitute for a term of confinement under the guidelines. U.S. v. Delloiacono, 900 F.2d 481 (1st Cir. 1990).
2nd Circuit holds that imposition of one year of community confinement was within court’s discretion. (640) Although defendant had a sentencing range of zero to six months, the district court sentenced him to five years of probation, on the condition that he serve 12 months of community confinement, and participate in a vocation program and obtain employment. The court found that community confinement was a better alternative than six months in prison, because it took him “out of the house, where he has a difficult relationship with his mother,” and put him in a halfway house, where he would have the ability to work, and provide a “structured setting.” The Second Circuit held that the one-year of community confinement was within the court’s discretion. Section 5F1.1 states that community confinement may be imposed as a condition of probation or supervised release. Application Note 2 explains that while such confinement should generally not be more than six months, a longer period may be imposed to accomplish the objectives of a specific rehabilitation program. The court plainly had such a specific rehabilitation objective in mind when it ordered one year of community confinement: it believed that defendant would have the best opportunity for rehabilitation in a “structured setting” that would separate him from his mother, who was apparently responsible for many of his difficulties in complying with pretrial supervision, and whom defendant blamed for his drug use. U.S. v. Stephens, 347 F.3d 427 (2d Cir. 2003).
3rd Circuit refuses to reverse erroneous recommendation as to place of imprisonment. (640) The government argued that the district court erred in recommending to the Bureau of Prisons that the imprisonment portion of defendant’s service be served in the Catholic Social Services of Lackawanna County. The Third Circuit agreed that a community confinement sentence would violate the guidelines. See § 5C1.1(d) (if guideline range is in Zone C, a least one-half of minimum term must be satisfied by imprisonment). Under § 5C1.1, community confinement cannot constitute imprisonment for purposes of fulfilling the requirement that one-half of a split sentence be satisfied by imprisonment. Therefore, if the district court had ordered this confinement as satisfying the requirement for imprisonment, it would clearly be reversible error. However, the panel found it unnecessary to reverse a sentencing order that included a recommendation to that effect. The district court recognized that the final decision as to the location of the imprisonment belonged to the Bureau of Prisons’. That recommendation did not amount to the imposition of a community confinement sentence. The sentence the district court imposed, namely five months’ imprisonment, was appropriate and should be affirmed. That part of the order that contained a recommended place of imprisonment, was either beyond the appellate court’s jurisdiction, or, if reviewable, a nullity. U.S. v. Serafini, 233 F.3d 758 (3d Cir. 2000).
3rd Circuit rules it has no jurisdiction to consider denial of request for substitute detention. (640) Defendant received a four-month term of imprisonment, at the bottom of his guideline range. He contended that the district court abused its discretion by denying his request to substitute confinement of home, community or halfway house detention. The 3rd Circuit found that it did not have jurisdiction to review a sentencing court’s discretionary refusal to impose a substitute detention under guidelines § 5C1.1(c)(2). The rationale of cases holding that a court has no jurisdiction to review a failure to depart downward applied here as well. U.S. v. Perakis, 937 F.2d 110 (3rd Cir. 1991).
4th Circuit upholds sentence to 500 hours of community service. (640) Defendant’s guideline range was zero to six months. Because the court found that defendant did not “need incarceration” it sentenced him to three years of probation with the condition of 500 hours of community service. Defendant contended that this requirement was unreasonable in light of guideline section 5F1.3, which suggests that community service in excess of 400 hours generally should not be imposed. The 4th Circuit upheld the 500 hours of community service requirement. Assuming that the failure to follow this commentary was a sentence outside the guideline range, this portion of defendant’s sentence was not unreasonable. U.S. v. Graham, 946 F.2d 19 (4th Cir. 1991).
6th Circuit says court can order community confinement as condition of supervised release. (640) Defendant argued for the first time on appeal that the district court lacked authority to sentence him to a community corrections facility because congressional amendments to the Mandatory Victims Restitution Act of 1996 (MVRA), removed such authority. The Sixth Circuit held that the 1996 MVRA amendments did not remove the district court’s authority to order a sentence of community confinement as a condition of release. The MVRA amendment renumbered §3565(b), shifting the community confinement provision from §3563(b)(12) to §3563(b)(11). Because the MVRA did not also renumber the cross-reference found in §3583(d)(3), the community confinement provision fell into the gap not cross-referenced by the supervised release statute. However, there was no indication in any of the legislative history surrounding the MVRA that Congress intended to deprive district courts of the power to impose community confinement as a condition of release. U.S. v. Gilpatrick, 548 F.3d 479 (6th Cir. 2008).
7th Circuit says former statute barred community confinement as condition of supervised release. (640) The district court specified that the first six months of defendant’s term of supervised release term be served in a “residential reentry center.” At the time of defendant’s sentence, 18 U.S.C. §3583(d) defined the permissible discretionary conditions of supervised release by incorporating by reference “any condition set forth as a discretionary condition of probation in 18 U.S.C. §3563(b)(1) through (b)(10) and (b)(12) through (b)(20) and any other condition it considers to be appropriate.” The residential reentry center to which defendant was sentenced fell within the scope of (b)(11), which authorizes placing defendant in a community corrections facility. The Seventh Circuit held that under the plain meaning of §3583(d), the district court did not have the authority to order that defendant serve time in a residential reentry center after his release from prison. The panel acknowledged that the First, Fifth, Sixth, Eighth and Ninth Circuits have all adopted the contrary position, but disagreed with those opinions. Congress has since amended §3583(d) to include §3563(b)(11). U.S. v. Head, 552 F.3d 640 (7th Cir. 2009).
7th Circuit says community confinement is not a form of imprisonment. (640) Defendant argued that the judge erred when he sentenced defendant to both the maximum term of 24 months’ imprisonment and a subsequent 120 days in community confinement as a condition of supervised release. He contended that because community confinement is a form of imprisonment, the two components of the sentence were redundant. The Seventh Circuit held that defendant’s community confinement was not a form of imprisonment but an order of supervision relating to supervised release. Community confinement and home detention, rather than being forms of imprisonment, are substitutes for imprisonment. Thus, the sentence imposed did not exceed the guidelines. U.S. v. Elkins, 176 F.3d 1016 (7th Cir. 1999).
7th Circuit holds that state home detention is not a term of imprisonment. (640) Defendant stole jewelry from old and infirm clients for whom she performed home nursing services. Wisconsin sentenced defendant to 14 months in prison, followed by home detention. Federal prosecutors, believing the sentence was too light, also charged her. Under § 5G1.3(b), a court must give credit for an undischarged term of imprisonment attributable to an offense fully taken into account in determining the offense level for the instant offense. The guidelines called for a 46 month sentence. The district court gave defendant credit for the Wisconsin incarceration, and imposed a 32-month sentence. The Seventh Circuit affirmed, holding that defendant’s home detention was not a term of imprisonment for which she should have received sentencing credit. The meaning of imprisonment is a question of federal law, and does not depend on the label states attach to their sanctions. “Imprisonment” is used throughout the guidelines to denote time in a penal institution. Home detention differs from imprisonment—it is not imprisonment, but a substitute for imprisonment. U.S. v. Phipps, 68 F.3d 159 (7th Cir. 1995).
7th Circuit holds that “split sentence” was prohibited by plea agreement. (640) Defendant’s Rule 11(e)(1)(C) plea agreement provided the district court would depart downward under § 5K1.1, and that the incarceration component of any sentence defendant received would be a term of imprisonment of 67 percent of the low end of the applicable guideline range. Defendant’s guideline range was 12 to 18 months, and thus the government stated that defendant’s sentence should be eight months’ imprisonment. Defendant argued that a split sentence (part imprisonment, part community confinement or home detention) was available under § 5C1.1(d)(2). The 7th Circuit disagreed, holding that the plea agreement prohibited a split sentence. The district court determined that the plea agreement contemplated that the entire term of imprisonment be made up of confinement in prison, rather than either community confinement or home detention. This interpretation was supported by the language of § 5C1.1, which plainly draws a distinction between imprisonment and either community confinement or home detention. U.S. v. Swigert, 18 F.3d 443 (7th Cir. 1994).
9th Circuit upholds BOP policy on spending end of sentence in halfway house. (640) Prior to 2008, the Bureau of Prisons could place a federal inmate in a halfway house only during the last six months of the inmate’s sentence. In 2008, Congress amended 18 U.S.C. § 3624(c) to allow the BOP to place an inmate in a halfway house for the last 12 months of his sentence. BOP issued regulations requiring individualized consideration of every inmate’s reentry into society but creating a presumption that an inmate would not be placed in a halfway house until the final six months of his sentence. The Ninth Circuit held that the BOP regulations represented a reasonable interpretation of § 3624(c). The court also upheld BOP’s decision to promulgate the new policy without notice-and-comment rulemaking. Sacora v. Thomas, 628 F.3d 1059 (9th Cir. 2010).
9th Circuit remands even though district court could impose the same sentence on remand. (640) At sentencing, the district court rejected defendant’s argument for an offense level of 10, pointing out that even if it adopted defendant’s position, it would still have the ability to incarcerate him. On appeal, the Ninth Circuit agreed with the defendant that the offense level should have been 10, and remanded for resentencing despite the district court’s indication that it would impose the same sentence. Under U.S.S.G. § 5B1.1 the defendant could serve his jail time in community confinement or home detention. U.S. v. Allison, 86 F.3d 940 (9th Cir. 1996).
10th Circuit holds that guidelines do not apply to Class B misdemeanors. (640) Defendant pled guilty under the Assimilative Crimes Act to driving under the influence, in violation of Kansas state law, a Class B misdemeanor. The magistrate judge sentenced him to probation. Defendant violated the probation several times. After the second violation, the judge extended the probation and imposed a six-month term of home detention with electronic monitoring. When defendant violated probation a third time, he was sentenced to 90 days in custody. Defendant argued that because he had completed six months in home detention, and the federal sentencing guidelines credit home detention as incarceration, that he had already served the six-month statutory maximum sentence permitted under Kansas law. The Tenth Circuit held that the guidelines were not applicable, since § 1B1.9 provides that the guidelines do not apply to any conviction that is a Class B or C misdemeanor. It is proper for a federal court to refer to state law in circumstances like this. Kansas law clearly provides that a period of home detention is not the same as a term of imprisonment. Therefore, the magistrate judge acted properly under Kansas law. U.S. v. Thomas, 68 F.3d 392 (10th Cir. 1995).
Pennsylvania district court holds that residence at a community treatment center is not “incarceration.” (640) Defendant served his sentence for prison breach at a community treatment center on work release status. Interpreting U.S.S.G. 4A1.2(e)(1), the Eastern District Court of Pennsylvania held that the term “incarceration” refers to imprisonment in a jail or similar correction facility and does not include residence in a community treatment center. Thus the defendant’s correct criminal history score was zero. U.S. v. Jordan, 734 F.Supp. 687 (E.D. Penn. 1990).
Commission permits court to recommend “shock incarceration program.” (640) On November 1, 1991, section 5F1.1 was amended to add a policy statement that allows the court pursuant to 18 U.S.C. sections 3582(a) and 3621(b)(4), to recommend that a defendant participate in a shock incarceration program if he meets the criteria set forth in 18 U.S.C. section 4046. The program involves a highly regimented schedule that provides elements of military basic training, job training and educational programs, and drug, alcohol and other counseling programs. In return for the successful completion of this shock incarceration program, the defendant is eligible to serve the remainder of his term of imprisonment in a graduated release program comprised of CommunityCorrectionsCenter and home confinement phases.