The opinion of the court was delivered by: MALCOLM MUIR
On January 4, 1991, Patrick Lawrence Petro was sentenced by a district court in the District of New Mexico to 121 months imprisonment on a conviction for possession with intent to distribute more than 5 kilograms of cocaine. On February 13, 1991, Petro surrendered to the custody of the Bureau of Prisons and was transferred to the Federal Prison Camp at Allenwood (hereinafter referred to as "Allenwood"), Montgomery, Pennsylvania.
On September 14, 1992, during the 4:00 p.m. count at Allenwood, a discrepancy in the number of inmates was discovered for Unit B-1. Correctional staff determined that Petro was missing from his assigned area and searched the surrounding area but did not locate him. At approximately 4:55 p.m., the United States Marshal's Service, the Pennsylvania State Police and local authorities were notified that Petro had escaped. On September 16, 1992, Petro was apprehended in West Fairview Township, York County, Pennsylvania, at approximately 2:00 a.m., walking along railroad tracks. He was returned to the United States Penitentiary at Lewisburg.
A grand jury handed down a one-count indictment against Petro charging him with escape in violation of Title 18, United States Code, Section 751(a). At arraignment Petro entered a plea of guilty pursuant to a written plea agreement which provided in part that in exchange for his plea the government would recommend that the Court impose a minimum prison term within the applicable sentencing guideline range. We accepted the guilty plea and plea agreement reserving the right to impose any lawful sentence, ordered the preparation of a presentence report and scheduled a presentence conference and a presentence hearing. The presentence report was prepared by probation officer Drew Thompson and submitted to Petro, defense counsel and the government on February 16, 1993. Neither the government nor Petro filed objections to the presentence report. The probation officer determined that the base offense level is 13, the total offense level is 11, the criminal history category is III, the guideline imprisonment range is 12 to 18 months, and the fine range is $ 2,000 to $ 20,000.
At the presentence conference it was determined that there were no factual errors in the presentence report. However, in light of a recent opinion by the Court of Appeals for the Third Circuit dealing with § 2P1.1 of the United States Sentencing Guidelines, it was determined that it was necessary to hold a presentence hearing.
Section 2P1.1 provides in pertinent part:
§ 2P1.1 Escape, Instigating or Assisting Escape
(1) 13, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense;
(b) Specific Offense Characteristics
(3) If the defendant escaped from the non-secure custody of a community corrections center, community treatment center, "halfway house," or similar facility, decrease the offense level under subsection (a)(1) by 4 levels. . . .
The Court of Appeals in United States vs. Hillstrom, F.2d , No. 92-7237 (filed March 12, 1993) (slip opinion) vacated the judgment of sentence and remanded the case to the district court to determine whether Allenwood is "similar to" a community corrections center, community treatment center or "halfway house". Petro did not controvert the position conceded by the parties in Hillstrom that community corrections centers, community treatment centers and halfway houses are essentially the same with respect to the conditions of confinement and security policies and the safety ramifications of an escape. Moreover, Petro's arguments and proposed findings of fact addressed only how Allenwood compares to community corrections centers and for those reasons we will refer hereinafter only to community corrections centers. See Hillstrom, slip opinion at 6, n.1.
A presentence hearing to determine whether Allenwood is a facility similar to a community corrections center was held on April 29, 1993. The following are the Court's findings of fact, discussion, and conclusions of law regarding this issue.
1. Minimum security federal prison camps, such as Allenwood, are operated by the Federal Bureau of Prisons, an agency of the U.S. Department of Justice, and are used for the sole purpose of housing convicted offenders committed to the custody of the United States Attorney General. (Undisputed, hereinafter "U")
2. Community corrections centers are non-federal, privately operated contract facilities. (U)
3. Community corrections centers consist of two programmatic components, the pre-release component and the community corrections component. (U)
4. Offenders in the pre-release component are in the community corrections center for the purpose of making a transition from the ...