Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Crim. No. 88-00153.
Sloviter and Greenberg, Circuit Judges, and Fisher, District Judge.*fn*
Anthony G. Medeiros appeals from a judgment of sentence imposed under the Sentencing Guidelines (Guidelines), promulgated by the Sentencing Commission (Commission) pursuant to 28 U.S.C. § 991 et seq. (Supp. II 1984), for escape from custody in violation of 18 U.S.C. § 751(a) (1982). This appeal requires us to consider whether a sentencing court has the power under 18 U.S.C. § 3553(b) (Supp. V 1987) to depart below the Guidelines on the ground that the escape involved "walking away" from a non-secure penitentiary. We are also asked to consider whether the purported double counting of the nature of the offense under Guideline sections for calculating Offense Level and Criminal History Category in escape cases constitutes a legitimate ground for departing below the Guidelines. We find that neither of these circumstances permit deviation from the Guidelines and therefore affirm the district court's ruling that it lacked power to depart below the Guidelines on either ground.
Facts and Procedural History
On August 30, 1988, Medeiros, while serving an eighteen-month sentence for unauthorized use of a bank card, departed without permission from the United States Penitentiary Farm Camp in Lewisburg, Pennsylvania, apparently in response to learning that his young son had been admitted to a hospital in Rhode Island for emergency treatment. On August 31, 1988, Medeiros telephoned the United States Marshals Service in Providence, Rhode Island, admitted that he had walked away from the prison camp in order to visit his son, and stated that he would return to custody. Medeiros did not surrender to the authorities, however, and was instead apprehended by the United States Marshals in Rhode Island on September 7, 1988.
Medeiros was indicted for one count of escape from an institution or facility in which he was confined by direction of the Attorney General in violation of 18 U.S.C. § 751(a). He initially pleaded not guilty to the charge but then changed his plea to guilty. The probation officer who prepared Medeiros' Presentence Report calculated his Guideline range as follows: Under section 2P1.1(a), Medeiros received a Base Offense Level score of 13 for a violation of 18 U.S.C. § 751(a). This level was adjusted downward by 2 points under section 3E1.1(a) because Medeiros accepted responsibility for his crime, resulting in a final Offense Level score of 11.
Under the Criminal History Category, Medeiros received a total of 10 points, 7 of which were awarded under sections 4A1.1(a) and (c) for sentences imposed for five prior fraud and drug offense convictions (including the one for which he was serving time at the time of his escape); 2 of which were imposed under section 4A1.1(d) for committing the offense of escape while under a criminal justice sentence; and 1 of which was imposed under section 4A1.1(e) for committing the offense of escape while in confinement on a sentence of more than sixty days. This score placed Medeiros in Criminal History Category V. This category, in conjunction with his Offense Level score of 11, placed Medeiros in the 24-30 month range under the Sentencing Table. See 18 U.S.C.A. App. Chapter Five, Part A (West Supp. 1989) (Federal Sentencing Guidelines).
Medeiros did not contest these calculations or the facts on which they were based, but submitted objections to the Presentence Report on the ground that the Commission had not adequately taken account of the difference between walking away from a non-secure institution and escaping from a secure facility. Medeiros also argued that the sentence imposed for his escape should be made concurrent with his sentence for bank fraud, and, in his reply brief, argued that the Commission failed to adequately consider the interaction in escape cases between Guideline section 2P1.1, which set his Offense Level, and sections 4A1.1(d) and 4A1.1(e), under which additional points were added to his Criminal History score because he committed his offense while under sentence for, and less than two years after, the commission of another crime.
The district court held a sentencing hearing at which it considered Medeiros' arguments and his account of the facts of his case. The court accepted arguendo Medeiros' claim that he attempted to gain the attention of an official at the farm camp after hearing that his son was ill but the official "[brushed] him off," and that Medeiros only afterwards walked away from the camp and went to see his son without attempting to speak with any other official. App. at 95. The court found Medeiros' failure to attempt to consult with anyone else "very damaging," id., and concluded that the exigent circumstances alleged by Medeiros were not sufficiently atypical to warrant a downward departure from the Guideline range.
The court rejected Medeiros' arguments that the Sentencing Commission failed to give adequate consideration to the fact that escape from a secure facility involved more serious criminal behavior than walking away from a non-secure institution, and that the nature of the offense was calculated both in the Offense Level and Criminal History Category. Finally, the court rejected Medeiros' request that his sentence for escape be imposed concurrently with his sentence for fraud, a decision which Medeiros does not contest on appeal.
In the same order denying Medeiros' motion for a departure from the Guideline sentencing range, the court entered a Judgment and Commitment Order imposing on Medeiros the minimum sentence -- 24 months -- allowable under the Guidelines, to be ...