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refusing "to fashion an exception [to double counting] since Commission has demonstrated its ability to do so in those areas it has deemed an exception to be appropriate"
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No. 89-8630. Non-Argument Calendar.
August 9, 1990.
Suzanne Hashimi, Federal Defender Program, Inc., Atlanta, Ga., for defendant-appellant.
Janet F. King, James R. Harper, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before KRAVITCH, ANDERSON and CLARK, Circuit Judges.
Appellant brings this appeal pursuant to 18 U.S.C. § 3742(a)(2), contending that the district court incorrectly applied the Sentencing Guidelines. Specifically, Goolsby contends that the district court erred in applying the criminal history multiple under U.S.S.G. § 4A1.1(d). We affirm.
FACTS
The facts in this case are not in dispute. On February 6, 1989, appellant escaped from a federal half-way house; appellant remained in a fugitive status until he was arrested on March 21, 1989. Appellant pled guilty to the charge of escape, 18 U.S.C. § 751(a), and was sentenced to a twenty-eight month term of imprisonment to be followed by two years of supervised release.
Appellant's sentence was calculated as follows: The court determined appellant's total offense level to be 11, (base level of 13 per U.S.S.G. § 2P1.1(a)(1), minus 2 for acceptance of responsibility per § 3E1.1(a)). Pursuant to U.S.S.G. § 4A1.1, the district court determined appellant's criminal history score to be 11; three points for each of three prior felony convictions plus 2 points for committing the instant offense while under a criminal justice sentence. Appellant objects to the two additional criminal history points scored pursuant to § 4A1.1(d). A criminal history score of 11 equates to criminal history Category V. Without the additional 2 points, appellant's criminal history score would have fallen in Category IV. Appellant argues on appeal that the Sentencing Commission did not intend § 4A1.1(d) to apply to the offense of escape as the conduct embraced by the 2 point criminal history multiple has been considered in the offense level under § 2P1.1(a)(1). Appellant asserts that the guidelines do not contemplate this kind of double counting.
This section provides: "Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status."
DISCUSSION
This is an issue of first impression in this circuit. However, every other circuit court that has considered this question has rejected appellant's contention. Because we generally agree with the reasoning advanced by the other circuit courts, we hold that it is proper for a district court to apply the 2 point criminal history factor when sentencing an offender for the crime of escape.
See United States v. Jimenez, 897 F.2d 286 (7th Cir. 1990); United States v. Bigelow, 897 F.2d 160 (5th Cir. 1990); United States v. Carroll, 893 F.2d 1502 (6th Cir. 1990); United States v. Wright, 891 F.2d 209, 211-12 (9th Cir. 1989); United States v. Medeiros, 884 F.2d 75, 79-80 (3rd Cir. 1989); United States v. Goldbaum, 879 F.2d 811 (10th Cir. 1989). But see United States v. Bell, 716 F. Supp. 1207, 1209-12 (D.Minn. 1989); United States v. Clark, 711 F. Supp. 736, 737 (S.D.N.Y. 1989).
Interpretation of the Sentencing Guidelines is similar to statutory interpretation and is subject to de novo review on appeal. United States v. Williams, 891 F.2d 212, 214 (9th Cir. 1989). Cf. United States v. Jones, 899 F.2d 1097, 1099-1100 (11th Cir. 1990) (conducting de novo review of guideline application). The applicable guidelines and accompanying commentary list no exception for escapees. In fact, § 4A1.1(d) expressly includes escapees. In those instances where the Commission intended to except an otherwise applicable element from increasing a sentence, the Commission's intent is expressly stated. See, e.g., § 3A1.1, Vulnerable Victim, Application Note 2 (no victim related adjustment if offense guideline specifically incorporates factor); § 3B1.3, Abuse of Position of Trust of Use of Special Skill, Application Note 1 (adjustment not applicable to embezzlement by ordinary bank teller); § 3C1.1, Willfully Obstructing or Impeding Proceedings, Application Note 4 (generally not applicable to crimes of contempt, obstruction of justice, perjury, etc.). We are 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. In a publication entitled "Questions Most Frequently Asked About The Sentencing Guidelines," Question 22 (Vol. III, March 1, 1990), the Commission's Training Staff opined that an offender who escapes while under a criminal justice sentence receives three criminal history points under §§ 4A1.1(d) and (e).
The cases cited, supra note 2, involved whether the factors under both subsections (d) and (e) are applicable to an escapee. When sentencing Goolsby, the district court upheld defendant's objection to application of § 4A1.1(e) and declined to include the one point factor. The additional point is of no consequence to appellant's sentence as a criminal history score of 12 also falls in Category V. Since the government did not appeal, however, we need not consider the applicability of subsection (e).
This explains the operation of § 4A1.1(d) in the typical case; however, the above justification is not altogether satisfactory as from the escapee's perspective the factors used to increase his criminal history category are required elements for the crime of escape itself. It is important to recognize that § 4A1.1(d) does not operate to enhance an offender's offense level, instead, it is a factor in calculating the offender's criminal history category. This distinction is important as each calculation concerns a conceptually separate notion related to sentencing. The offender's total offense level reflects the seriousness of the offense of conviction adjusted for relevant conduct. United States v. Scroggins, 880 F.2d 1204, 1209 (11th Cir. 1989). See U.S. S.G. §§ 1B1.1(a)-(e). An offender's criminal history score "evaluates the need to increase his sentence incrementally to deter him from further criminal activity." Scroggins, 880 F.2d at 1210. See U.S.S.G. § 4A1.3 (permitting upward or downward departure if offender's criminal history category under-represents or over-represents likelihood offender will commit future crimes); United States v. Jackson, 883 F.2d 1007, 1008-09 (11th Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 747, 107 L.Ed.2d 764, (1990) (discussing relationship in context of departure under § 4A1.3). In fashioning the § 4A1.1(d) factor, the Sentencing Commission determined that offenders who committed crimes while under a criminal justice sentence are more likely to commit future crimes. The purpose of this factor is to "implement one measure of recency." § 4A1.1, Background.
Another appellant in a similar case put the argument succinctly, "escape is not made worse by being committed while in custody. It is made possible by being . . . in custody." Goldbaum, 879 F.2d at 813. However, what Goldbaum and appellant here fail to recognize is that § 2P1.1 is applicable to both the crime of escape and assisting escape. The combined effect of the offense guideline and the criminal history factors is to sentence an escapee to a greater term of imprisonment than an outside person who assists the prisoner to escape. It would not be impermissible for the Commission to establish one offense level for the crimes of escape, or instigating or assisting escape and then enhance the offense level in the case where the crime is committed by one who is incarcerated. The challenged system achieves the same result. Considering the application notes, the background commentary and all the other available information, it is reasonable to conclude that the Commission set the offense level at a lower number recognizing that the criminal history score would increase the sentence for those who committed their offense while under a criminal justice sentence. Thus, contrary to Goldbaum's conclusion, the crime of escape is in fact made worse by being committed in custody.
Additionally, we note that § 4A1.1 does not apply to every escape. Section 2P1.1 applies to escapes from pretrial custody as well as from a criminal justice sentence. However, § 4A1.1(d) applies only if the escape is from a criminal justice sentence. It is not unreasonable to conclude the Sentencing Commission determined that if an offender escapes from confinement imposed by sentence, that offender should be punished more severely than if he had escaped from some form of pretrial confinement.
We conclude, therefore, that the district court correctly applied U.S.S.G. § 4A1.1(d) to appellant's escape conviction. Sections 2P1.1 and 4A1.1(d) combine to effect rational sentences under a variety of factual circumstances. Accordingly, the defendant's sentence is AFFIRMED.