reduce the offense level for an individual who escapes or walks away from a non-secure institution from the offense level which currently exists for all escapes from both secure and non-secure institutions. We are of the view that simply because the Sentencing Commission is considering a reduction in the offense level for escapes from non-secure institutions does not automatically indicate that the guidelines do not give adequate consideration to the difference between walking away from a non-secure institution and escaping from a secure institution. For the reasons expressed above, we are of the view that the guidelines do give adequate consideration to the difference between walking away from a non-secure institution and escaping from a secure institution.
B. Whether the particular facts of this case, walking away to see a child who had been suddenly hospitalized, warrants a downward departure from the sentencing guideline range.
Medeiros asserts that we have the authority to impose a sentence upon Medeiros which is less than the guideline range because of the particular facts surrounding Medeiros's walking away from the farm camp. Medeiros contends that those facts are as follows: (1) Medeiros was informed in the morning on August 30, 1988, that his five-year-old son had been taken earlier that morning to the emergency room of a hospital in Warwick, Rhode Island; (2) Medeiros shortly thereafter saw Edward Cox, the senior officer at the farm camp, and Medeiros asked Cox whether Medeiros could talk to him for a moment; (3) Cox told Medeiros that Cox did not have time to talk; (4) Medeiros intended to ask Cox for a furlough to go visit his son; and (5) after Cox stated that Cox did not have time to speak with Medeiros, Medeiros walked away from the farm camp and went to Rhode Island to see his son. Medeiros does not assert that he told Cox why he wished to talk to Cox, and Medeiros does not claim that he attempted to speak with any other farm camp official regarding a furlough. Accepting all the above facts as asserted by Medeiros as true, we are of the view that the facts of this case are not sufficiently atypical to warrant a downward departure from the guideline range.
C. Whether a concurrent sentence is warranted in this case.
Medeiros concedes that the decision whether to make Medeiros's sentence in this case concurrent or consecutive to the sentence he is currently serving is within our discretion. We are of the view that making Medeiros's sentence in this case concurrent to the sentence he is currently serving would depreciate the seriousness of his walking away from the farm camp. Additionally, we are of the view that it is improper to make Medeiros's sentence in this case concurrent to the sentence he is currently serving as a method of circumventing the federal sentencing guidelines and imposing a sentence which, in effect, would be shorter than that prescribed by the sentencing guidelines for this case. Such a practice has the effect of undermining the primary goal of the sentencing guidelines: reducing sentence disparity throughout the United States. Cf. United States v. Uca, 867 F.2d 783 (1989). We decline to make Medeiros's sentence in this case concurrent to the sentence he is currently serving.
D. Whether the guidelines give adequate consideration to the interplay between guideline sections 2P1.1 and 4A1.1(d) and 4A1.1(e).
Medeiros argues for the first time in his reply brief that the enhancement of his Criminal History Category pursuant to guideline sections 4A1.1(d) and 4A1.1(e) shows that the guidelines do not give adequate consideration to the interplay between these two sections and section 2P1.1 (which section determines the offense level for an individual convicted of escape pursuant to 18 U.S.C. § 751(a)). Initially, we note that it is improper for a party to present a new argument in his or her reply brief. This argument is only very tangentially related to the arguments raised by the United States in its brief in opposition. Nonetheless, we will address this argument raised by Medeiros.
Section 4A1.1(d) requires that two points be added to an individual's Criminal History Category score if his or her current offense was committed while still serving any criminal sentence. Section 4A1.1(e) requires that one point be added to an individual's Criminal History Category score if his or her current offense is committed less than two years after release from imprisonment on a sentence of at least 60 days or if the current offense is committed while the individual is still in confinement on such a sentence. It is difficult to grasp precisely what argument Medeiros is making. It appears that Medeiros is asserting that when sections 4A1.1(d) and 4A1.1(e) are applied in a case where the individual is being sentenced for escape, the individual is subject to a type of "double counting." We disagree with Medeiros's argument that impermissible double counting is occurring. We are of the view that the guidelines give adequate consideration to the interplay among these sections of the guidelines. Our view is based in large part upon the discussion on page 111, particularly footnote No. 1, of Exhibit A appended to Medeiros's notice of intent to seek a downward departure from the guideline range and to seek a concurrent sentence. (Exhibit A appended to Medeiros's notice of intent is apparently an internal memorandum to the Sentencing Commission.)
NOW, THEREFORE, IT IS ORDERED THAT:
1. Medeiros's request for a downward departure from the guideline range is denied.
2. Medeiros's request that the sentence in this case be made concurrent to the sentence he is currently serving or any other sentence which has previously been imposed upon him is denied.
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