The opinion of the court was delivered by: JAMES F. MCCLURE, JR.
This case presents the issue of whether the Federal Prison Camp at Allenwood, Montgomery, Pennsylvania ("FPC-Allenwood"), is a facility similar to a community corrections center, community treatment center, or halfway house within the meaning of § 2P1.1(b)(3) of the United States Sentencing Commission Guidelines (USSG § 2P1.1(b)(3)).
On February 3, 1992, defendant Carl Hillstrom pleaded guilty to a charge of escape from federal custody in violation of 18 U.S.C. § 751(a). He was sentenced by this court to a term of incarceration of 21 months, to run consecutive to the term for which he had previously been imprisoned. A term of supervised release of three years was to follow the term of incarceration.
On March 12, 1993, the sentence was vacated by the United States Court of Appeals for the Third Circuit "because we believe that the [district] court based its decision on an incomplete description of the nature of community correction centers and an inadequate consideration of what we take to be one of the primary policy justifications behind the adoption of the current version of § 2P1.1(b)(3) . . ." United States v. Hillstrom, 988 F.2d 448 (3d Cir. 1993). The Third Circuit remanded the case to this court for reconsideration of the sentence, emphasizing particular factors to be considered in making the comparison.
Hillstrom's motion to proceed pro se will be denied as untimely. Moreover, we conclude that FPC-Allenwood is not a "similar facility" within the meaning of USSG § 2P1.1(b)(3).
I. MOTION TO PROCEED PRO SE AND FOR A SUPPLEMENTAL HEARING
Following the hearing on September 16, 1993, Hillstrom filed a pro se document entitled, "OBJECTION, REQUEST FOR SUPPLEMENTAL HEARING AND REQUEST TO PROCEED PRO SE." The document is dated September 17, and was docketed by the Clerk's Office on September 22, 1993. Hillstrom therein raises a number of allegations, including ineffective assistance of counsel in presenting an "incomplete and erroneous picture of Allenwood" and inadequate communication with counsel. On October 25, 1993, Hillstrom filed a "CLARIFICATION" of the above-entitled document in which he expands upon the arguments raised in his "OBJECTION."
Based upon the documents filed with the court, the questions asked by counsel at the September 16 hearing, and the testimony of investigator Larry Crisman of the Federal Public Defender's Office, the allegation of inadequate preparation is without foundation. There clearly appears to have been a thorough and exhaustive investigation into the facts of this case. In fact, of the 207 proposed findings of fact, Hillstrom notes in his motion that he disagrees with just one, and indicates that the problematic finding was no. 197. While we agree that it would be easier to detect an escapee from the camp compound than from a work detail, this finding does not change our conclusion.
Hillstrom also points to proposed finding no. 203, which was disputed as of the hearing date. He points out that there is authority for this finding, and appears to be suggesting that the "dispute" indicates an inadequate presentation by counsel. First, the proposed findings of fact filed September 23, 1993, indicate that finding no. 203 was no longer disputed. Second, whether the government disputes any fact does not indicate that counsel somehow was ineffective.
More importantly, at no time prior to or during the September 16 hearing did Hillstrom indicate a desire to proceed pro se, nor did he express to the court any dissatisfaction with counsel. It was only after the hearing that this dissatisfaction apparently manifested itself. Hillstrom has provided no reason to support his contention that a supplemental hearing is necessary, nor any reason why the court should defer ruling in order to accommodate his newfound desire to proceed pro se. Finally, the court finds no basis in the law to allow any defendant to proceed as "pro se co-counsel" as requested by Hillstrom. The motion filed by Hillstrom will be denied.
Hillstrom's remaining arguments are directed toward the issues raised at the September 16 hearing and in the Third Circuit's opinion, and so will be addressed in the appropriate section of this memorandum.
On February 7, 1990, Hillstrom was sentenced to 62 months' incarceration, to be followed by five years of supervised release, upon conviction in the United States District Court for the Southern District of Florida for importation of marijuana into the United States. On March 23, 1990, he arrived at FPC-Allenwood to serve that sentence.
On October 10, 1990, Hillstrom was assigned to mow grass in a field outside of the confines of the prison camp. The area in which he was to work was out of the sight of corrections officers. After lunch was delivered to him, which may have been approximately 9:30 a.m. (according to Hillstrom) or 10:30 a.m. (according to Dennis Faulk, a unit manager at FPC-Allenwood), Hillstrom abandoned the tractor he had been using in a wooded area near the field and left.
Following a plea of guilty, the court imposed a sentence of 21 months, to be followed by three years of supervised release. This sentence was based upon the following: a total offense level of 11; a criminal history score of 9; and a criminal history category of IV.
The sentencing range was 18 to 24 months, and the court imposed a sentence in the middle of the range.
At Hillstrom's sentencing on April 29, 1992, he contended that a 4-point reduction in offense level was necessary under USSG § 2P1.1(b)(3), which states in pertinent part:
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 . . .
(Emphasis added.) While it was undisputed that incarceration at FPC-Allenwood is "non-secure custody," we concluded that the camp is not a "similar facility" to a community corrections center ("CCC"), community treatment center, or a halfway house. This finding was based in large part upon United States v. Cordero, No. 1:CR-89-0170-02, slip op. (M.D. Pa. May 24, 1991), aff'd, 950 F.2d 723 (1991) (table), in which it was held that FPC-Allenwood was not similar to any of the facilities listed in USSG § 2P1.1(b)(3).
As noted above, our judgment of sentence was vacated by the Third Circuit and the case was remanded for a hearing and reconsideration of sentence. A closer examination of the opinion of the Third Circuit is appropriate in order to set forth clearly the basis for our determination that FPC-Allenwood is not similar to a CCC.
III. THE OPINION OF THE THIRD CIRCUIT
In United States v. Hillstrom, No. 92-7237 (3d Cir. filed March 12, 1993), published at 988 F.2d 448 (3d Cir. 1993), the Third Circuit stated that it believed that our sentence was based upon an incomplete description of the nature of a CCC and an inadequate consideration of a primary policy justification underlying USSG § 2P1.1(b)(3). Hillstrom, 988 F.2d at 449. By order in lieu of a formal mandate, the Third Circuit vacated the sentence and remanded "for further proceedings consistent with the opinion of this Court." United States v. Hillstrom, No. 92-7237 (3d Cir. unpublished order filed March 12, 1993).
In United States v. Petro, No. 4:CR-92-0242 (M.D. Pa. filed May 10, 1993), the Honorable Malcolm Muir again held
that FPC-Allenwood was not similar to a CCC. While we again reach the same conclusion as Judge Muir, this conclusion is not based upon that case. Instead, we rely on our own findings of fact and conclusions of law, since: (1) the order of the Third Circuit specifically directs "further proceedings" in the instant case; and (2) a more complete factual record was developed in the instant case.
The Third Circuit began its analysis under USSG § 2P1.1(b)(3) with a two-pronged inquiry: (1) whether the institution from which the defendant escaped is a "non-secure" facility under that section, see USSG § 2P1.1 Commentary Application Note 1; and (2) whether the facility is similar to a CCC, community treatment center, or halfway house. Hillstrom, 988 F.2d at 451. As noted by the Third Circuit, the first prong of this inquiry is not in question. Id. Also, the parties have confined their arguments to comparison of FPC-Allenwood to a CCC.
Hillstrom, 988 F.2d at 450 n. 1.
The Court next rejected the opinions of a number of courts which have held that the four-point reduction pursuant to USSG § 2P1.1(b)(3) does not apply to prison camps. Id., citing United States v. Shaw, 979 F.2d 41 (5th Cir. 1992); United States v. Brownlee, 970 F.2d 764 (10th Cir. 1992) (per curiam); United States v. McGann, 960 F.2d 846 (9th Cir.)(per curiam), cert. denied, 121 L. Ed. 2d 204, 113 S. Ct. 276 (1992); United States v. Kahn, 789 F. Supp. 373 (M.D. Ala. 1992). See also, United States v. Tapia, 981 F.2d 1194 (11th Cir. 1993) (in accord with above-listed cases), cert. denied, 125 L. Ed. 2d 676, 113 S. Ct. 2979 (1993). But see United States v. Agudelo, 768 F. Supp. 339 (N.D. Fla. 1991).
The Court then addressed what it considered to be one of the "primary policy justifications" underlying USSG § 2P1.1(b)(3): that those who escape from higher-security institutions be punished more severely because of the safety ramifications inherent in their conduct, since escape from a high-security facility may trigger the use of greater (or even deadly) force by prison officials. Hillstrom, 988 F.2d at 452-453. Therefore, a district court should consider the security policies of the facility and the safety ramifications of escape. Hillstrom, 988 F.2d at 453.
In light of the Third Circuit's opinion, it appears that the comparison between a CCC and the facility from which the escape has been effected is to be made on a case-by-case basis.
Among the factors to be considered are: whether the purpose of placement is primarily punitive or primarily rehabilitative; inmate employment; provision of meals, religious services and facilities, recreation, etc., on-site or off-site; provision of medical and dental services on-site or off-site, and payment for such services; authorization of staff to prevent escape; use of force and/or firearms by staff; whether the Bureau of Prisons operates the facility; ratio of inmates to staff; and reasons for which inmates may leave the grounds. This list is not intended to be exhaustive, though we believe a thorough list of factors to be considered was provided by Judge Muir in his chart appended to United States v. Petro, supra. Both the government and Hillstrom relied extensively on that list.
1. FPC-Allenwood is a minimum security, federal prison camp located in Montgomery, Lycoming County, Pennsylvania.
2. Minimum security federal prison camps are operated by the Federal Bureau of Prisons (BOP), an agency of the Department of Justice, and are used for the primary purpose of housing convicted offenders committed to the custody of the United States Attorney General.
3. A community corrections center ("CCC") is a specific type of facility owned and operated by a party (state, county, or private) which contracts with the BOP.
4. The contract between the BOP and the contractor for the operation of a CCC includes the Statement of Work, Community Corrections Centers, by which the contractor agrees to abide.
5. CCC's are non-federal correctional facilities used for the purpose of housing convicted offenders.
6. The only facility in the Middle District of Pennsylvania which is a CCC, i.e. for which there is a contract embodying the Statement of Work, Community Corrections Centers, is the Catholic Services CCC in Scranton, Luzerne County, Pennsylvania.
OTHER CONTRACT FACILITIES:
7. The BOP also contracts with parties to house inmates committed to the custody of the Attorney General in facilities which are not CCC's, including county jails and work release centers.
8. The contracts between the BOP and these contractors do not include the Statement of Work, Community Corrections Centers; in fact, they are wholly separate contracts.
9. Conditions of confinement in a CCC and a county jail vary significantly, since a county jail is a secure facility which may house both violent and non-violent offenders.
10. The BOP currently has contracts with 625 facilities, 271 or 43% of which are county jails and state prisons.
11. Of the 18 facilities in Pennsylvania with which the BOP has contracts to provide services, 13 or 72% are county prisons or jails.
12. There are nine facilities with community corrections components in the Middle District of Pennsylvania with which the Federal BOP has contracts: (1) Catholic Services Community Corrections Center in Scranton (see Finding of Fact No. 6, supra); (2) Cumberland County Prison; (3) Lycoming County Work Release Center; (4) Lackawanna County Prison; (5) Lebanon County Prison; (6) Montour County Jail; (7) Northumberland County Prison; (8) Snyder County Prison; and (9) York County Prison (collectively, the "listed facilities").
PROGRAMMATIC COMPONENTS OF COMMUNITY CORRECTIONS CENTERS:
13. CCC's consist of two programmatic components, the prerelease component and the community corrections component.
14. Offenders in the pre-release component are in the CCC for the purpose of making a transition from the institutional setting to the community, or as a resource while under supervision.
15. Offenders are placed in the community corrections component primarily as a punitive sanction.
16. CCC's do not differentiate the two programmatic components between inmates who are on work release and inmates who are not on work release; work-release and non-work-release inmates are subject to the same conditions within the community corrections component. See Statement of Work at 22.
17. Some CCC's differentiate the two programmatic components between inmates who are directly committed to the CCC's by the court, and inmates who are transferred from other institutions.
18. Conditions of confinement in the community corrections components of CCC's are more restrictive than the pre-release component.
19. A contract between the BOP and a non-CCC facility also may include a community corrections component and/or a pre-release component.
20. As of September 16, 1993, the BOP was housing inmates in a pre-release capacity at the York County Prison, Cumberland County Prison, and Lebanon County Prison pursuant to the contracts those institutions have with the BOP.
22. The BOP also may house inmates with direct court commitments in jail-type facilities with a community corrections component.
23. Based on a review of the nine facilities with community corrections components in the Middle District of Pennsylvania, security varies depending upon the facility, whether the inmate has been directly committed by the court or not, whether the inmate is on work release or not, and whether the facility is a CCC or a county prison or jail.
24. Inmates at FPC-Allenwood are housed in dormitory-style housing which is not locked-down.
25. Inmates at Catholic Services CCC and the Lycoming County Work Release Center are housed in dormitory-style housing which is not locked-down.
26. Inmates in the following facilities who are not on work release are housed in the general population area of the prison which is a cell-type, lock-down jail: Cumberland County Prison; Lackawanna County Prison; Lebanon County Prison; Montour County Jail; Northumberland County Prison; Snyder County Jail; and York County Jail.
27. Inmates at the Cumberland County Prison who are on work release are housed in the same type setting when they are not out on work release; however, they are housed in a separate unit.
28. Inmates at the following facilities who are on work release are housed in dormitory-style, lock-down housing when they are not out on work release: Lackawanna County Prison; Lebanon County Prison; Montour County Jail; Northumberland County Prison.
29. Unlike inmates at FPC-Allenwood, inmates at the Cumberland county Prison, Lackawanna County Prison, Lebanon County Prison, Montour County Jail, Northumberland County Prison, Snyder County Jail, and the York County Jail who are not on work release status are not in a position easily to walk away from the institutions because they are housed in locked down cell-type settings. However, inmates on work release status may be in a position to walk away from the job site.
30. Security in those facilities listed above where inmates are housed in a locked-down, secured-type setting is more restrictive than at FPC-Allenwood because those inmates are not in a position simply to walk away from the institutions.
TYPES AND CLASSIFICATION OF INMATES:
31. CCC's house individuals who are placed in their care as a condition of probation, supervised release, or bond, and are not deemed to be in the custody of the Attorney General as well as offenders committed to the custody of the Attorney General who are recommended by the courts to serve their entire terms of confinement in a CCC.
32. FPC-Allenwood houses only offenders who are committed to the custody of the Attorney General.
33. Inmates housed in minimum security federal prison camps, such as FPC-Allenwood, receive an initial custody assignment of "out;" however, inmates housed at minimum security federal camps may also receive a custody assignment of "community."
34. CCC'S and FPC-Allenwood house inmates that are classified as "community."
35. FPC-Allenwood and CCC's generally do not house violent inmates.
EMPLOYMENT AND WORK DETAILS:
36. Most inmates at FPC-Allenwood are employed in job assignments within the immediate confines of the prison camp compound; however, some job assignments may be outside the immediate confines of the prison camp compound.
37. Inmates at FPC-Allenwood may be assigned to work details on the government reservation outside the immediate confines of the prison camp compound, such as mowing the lawn and cutting the fields.
39. Some inmates at FPC-Allenwood have tasks which require them to go outside the facility perimeter, such as "town drivers."
40. Inmates at FPC-Allenwood are not confined to the camp compound if they are performing duties in connection with their work assignment which is outside the confines of the main compound.
41. Except for employment and other approved program activities (i.e. seeking employment, meals served through a local restaurant and attending religious services), residents in a CCC are not permitted to leave the center without prior approval of the community corrections manager.
42. Whether an inmate may be permitted to leave the CCC for employment or other approved program activities depends upon whether the inmate is eligible for work release and whether the CCC offers the program activities on-site.
43. Inmates at the Catholic Services CCC who are not on work release may not seek employment off-site.
44. Federal inmates housed in the following facilities who are not on work release may not seek employment off-site: Cumberland County Prison; Lackawanna County Prison; Montour County Jail; Snyder County Jail; Northumberland County Prison; and York County Prison (no work release).
45. Federal inmates at the Lycoming County Work Release Center are all on work release status and may seek employment off-site.
46. Federal inmates at the Lebanon County Prison who are not on work release are not permitted to seek employment off-site; however, if they have been in the institution for more than three months and have completed 75% of their sentence, they may earn a monthly weekend pass. Inmates on work release may earn an additional one hour per week toward a home visitation pass.
47. Inmates at FPC-Allenwood are permitted to attend religious services within the physical confines of the institution.
48. Religious services are provided on-site at the following among the listed facilities, and inmates are not permitted to attend them off-site: Cumberland County Prison; Lebanon County Prison; Montour County Prison; Snyder County Prison; and the York County Prison.
49. Religious services are available off-site at the following among the listed facilities: Catholic Services CCC; Lycoming County Prison Work Release Center; and the Lackawanna County Prison.
50. Information as to whether religious services are provided on- or off-site at the Northumberland County Prison for inmates housed there on ...