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UNITED STATES v. MEDEIROS

March 28, 1989

UNITED STATES OF AMERICA
v.
ANTHONY G. MEDEIROS



The opinion of the court was delivered by: MUIR

 MALCOLM MUIR, UNITED STATES DISTRICT JUDGE.

 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

 I. Introduction.

 Defendant Anthony G. Medeiros requests that we sentence him to a term of imprisonment in this case that is below the range of imprisonment dictated for this case by the federal sentencing guidelines. We must decide whether we have the authority to sentence Medeiros to a term of imprisonment less than that prescribed by the sentencing guidelines, and, if so, whether we choose to exercise this discretion.

 II. Procedural and Factual History.

 On September 16, 1988, a grand jury returned a one-count indictment charging Medeiros with escaping on or about August 30, 1988, from the farm camp at the United States Penitentiary at Lewisburg, Pennsylvania in violation of 18 U.S.C. § 751(a). Medeiros on December 28, 1988, entered a plea of guilty to the one count indictment.

 The Court received on March 3, 1989, a copy of the pre-sentence report prepared in this case. On March 7, 1989, Medeiros filed a notice of intent to seek a downward departure from the guideline range and to seek a concurrent sentence. A pre-sentence conference was held with the Court on March 8, 1989. On March 15, 1989, the United States filed a brief in opposition to Medeiros's request for a downward departure from the guideline range and for a concurrent sentence. The United States did not address the issue of a concurrent sentence in its brief. Also on March 15, 1989, a pre-sentence hearing was conducted. Medeiros filed a reply brief concerning his request for a downward departure from the guideline range and for a concurrent sentence on March 20, 1989.

 III. Discussion.

 The offense in this case was committed after November 1, 1987, and therefore the sentence we impose is governed by the Sentencing Reform Act of 1984 and the sentencing guidelines promulgated pursuant thereto. See United States v. Uca, 867 F.2d 783 (3d Cir. 1989). The Sentencing Reform Act authorizes a departure from the sentence range prescribed by the federal sentencing guidelines if ". . . the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b). The United States Court of Appeals for the Third Circuit has indicated that departures from the sentencing guideline range are the exception rather than the rule. See United States v. Uca, 867 F.2d 783 (3d Cir. 1989). The Court of Appeals has also indicated that a district court may depart from the sentencing guideline "when a [district] court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm." Chapter 1, Part A, section 4(b) of the Federal Sentencing Guidelines (quoted in United States v. Ryan, 866 F.2d 604, 606 (3d Cir. 1989)).

 The Court of Appeals has tacitly admitted that it is difficult for a district court to determine whether ". . . there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." See United States v. Ryan, 866 F.2d at 610 ("Here, as in many situations, there is really no way of knowing whether or not the Commission would view the circumstances of this case as 'unusual.'"). It is not entirely clear to us what the phrase "adequately taken into consideration" means. The Court of Appeals has apparently interpreted this phrase to mean that the district court should examine whether "the Guidelines . . . give adequate consideration" to an allegedly aggravating or mitigating circumstance which a party claims should warrant a departure from the guidelines. See United States v. Uca, 867 F.2d 783, 789 (1989). The formulation indicated by United States v. Uca appears to us to be more manageable because the inquiry under this formulation is whether the guidelines give adequate consideration to a particular circumstance rather than whether the Sentencing Commission "adequately t[ook] into consideration" a particular circumstance, 18 U.S.C. § 3553(b). With the understanding that our function is to determine whether the guidelines "give adequate consideration" to the allegedly mitigating circumstances which Medeiros contends warrant a downward departure from the guidelines in this case, we turn to the allegedly mitigating circumstances presented by him.

 A. Whether the sentencing guidelines give adequate consideration to the difference between walking away from a non-secure institution and escaping from a secure institution.

 Medeiros asserts that the Sentencing Commission did not adequately consider the difference between walking away from a non-secure institution such as the farm camp at the Lewisburg Penitentiary and escaping from a secure institution such as the Lewisburg Penitentiary. Pursuant to the discussion above, we will rephrase this assertion as whether the sentencing guidelines give adequate consideration to the difference between walking away ...


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