U.S. v. Goolsby, 89-8630

• Decision Date: 09 August 1990
• Docket Number: No. 89-8630,89-8630
• Citation: 908 F.2d 861
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willie Frank GOOLSBY, Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 861

908 F.2d 861

UNITED STATES of America, Plaintiff-Appellee, v. Willie Frank GOOLSBY, Defendant-Appellant.

No. 89-8630

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Aug. 9, 1990.

Suzanne Hashimi, Federal Defender Program, Inc., Atlanta, Ga., for defendant-appellant.

Janet F. King, James R. Harper, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH, ANDERSON and CLARK, Circuit Judges.

PER CURIAM:

Appellant brings this appeal pursuant to 18 U.S.C. Sec. 3742(a)(2), contending that the district court incorrectly applied the Sentencing Guidelines. Specifically, Goolsby contends that the district court erred in applying the criminal history multiple under U.S.S.G. Sec. 4A1.1(d). We affirm.

FACTS

The facts in this case are not in dispute. On February 6, 1989, appellant escaped from a federal half-way house; appellant remained in a fugitive status until he was arrested on March 21, 1989. Appellant pled guilty to the charge of escape, 18 U.S.C. Sec. 751(a), and was sentenced to a twenty-eight month term of imprisonment to be followed by two years of supervised release.

Appellant's sentence was calculated as follows: The court determined appellant's total offense level to be 11, (base level of 13 per U.S.S.G. Sec. 2P1.1(a)(1), minus 2 for acceptance of responsibility per Sec. 3E1.1(a)). Pursuant to U.S.S.G. Sec. 4A1.1, the district court determined appellant's criminal history score to be 11; three points for each of three prior felony convictions plus 2 points for committing the instant offense while under a criminal justice sentence. Appellant objects to the two additional criminal history points scored pursuant to Sec. 4A1.1(d). ¹ A criminal history score of 11 equates to criminal history Category V. Without the additional 2 points, appellant's criminal history score would have fallen in Category IV. Appellant argues on appeal that the Sentencing Commission did not intend Sec. 4A1.1(d) to apply to the offense of escape as the conduct embraced by the 2 point criminal history multiple has been considered in the offense level under Sec. 2P1.1(a)(1). Appellant asserts that the guidelines do not contemplate this kind of double counting.

DISCUSSION

This is an issue of first impression in this circuit. However, every other circuit court that has considered this question has rejected appellant's contention. ² Because we generally agree with the reasoning advanced by the other circuit courts, we hold that it is proper for a district court to apply the 2 point criminal history factor when sentencing an offender for the crime of escape.

Interpretation of the Sentencing Guidelines is similar to statutory interpretation and is subject to de novo review on appeal. United States v. Williams, 891 F.2d 212, 214 (9th Cir.1989). Cf. United States v. Jones, 899 F.2d 1097, 1099-1100 (11th Cir.1990) (conducting de novo review of guideline application). The applicable guidelines and accompanying commentary list no exception for escapees. In fact, Sec. 4A1.1(d) expressly includes escapees. In those instances where the Commission intended to except an otherwise applicable element from increasing a sentence, the Commission's intent is expressly stated. See, e.g., Sec. 3A1.1, Vulnerable Victim, Application Note 2 (no victim related adjustment if offense guideline specifically incorporates factor); Sec. 3B1.3, Abuse of Position of Trust of Use of Special Skill, Application Note 1 (adjustment not applicable to embezzlement by ordinary bank teller); Sec. 3C1.1, Willfully Obstructing or Impeding Proceedings, Application Note 4 (generally not applicable to crimes of contempt, obstruction of justice, perjury, etc.). We are reluctant to fashion an exception since the Commission has demonstrated its ability to do so in those areas it has deemed an exception to be appropriate. In a publication entitled "Questions Most Frequently Asked About The Sentencing Guidelines," Question 22 (Vol. III, March 1, 1990), the Commission's Training Staff opined that an offender who escapes while under a criminal justice sentence receives three criminal history points under Secs. 4A1.1(d) and (e). ³

This explains the operation of Sec. 4A1.1(d) in the typical case; however, the above justification is not altogether satisfactory as from the escapee's perspective the factors used to increase his criminal history category are required elements for the crime of escape itself. It is important to recognize that Sec. 4A1.1(d) does not operate to enhance an offender's offense level, instead, it is a factor in calculating the offender's criminal history category. This distinction is important as each calculation concerns a conceptually separate notion related to sentencing. The offender's total offense level reflects the seriousness of the offense of conviction adjusted for relevant conduct. United States v. Scroggins, 880 F.2d 1204, 1209 (11th Cir.1989). See U.S.S.G. Secs. 1B1.1(a)-(e). An offender's criminal history score "evaluates the need to increase his sentence incrementally to deter him from further criminal activity." Scroggins, 880 F.2d at 1210. See U.S.S.G. Sec. 4A1.3 (permitting upward or downward departure if offender's criminal history category under-represents or over-represents likelihood offender will commit future crimes); United States v. Jackson, 883 F.2d 1007, 1008-09 (11th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 747, 107 L.Ed.2d 764, (1990) (discussing relationship in context of departure under Sec. 4A1.3). In fashioning the Sec. 4A1.1(d) factor, the Sentencing Commission determined that offenders who committed crimes while under a criminal justice sentence are more likely to commit future crimes. The purpose of this factor is to "implement[ ] one measure of recency." Sec. 4A1.1, Background.

Another appellant in a similar case put the argument succinctly, "escape is not made worse by being committed while in custody. It is made possible by being ... in custody." Goldbaum, 879 F.2d at 813. However, what Goldbaum and appellant here fail to recognize is that Sec. 2P1.1 is applicable to both the crime of escape and assisting escape. The combined effect of the offense guideline and the criminal history factors is to sentence an escapee to a greater term of imprisonment than an outside person who assists the prisoner to escape. It would not be impermissible for the Commission to establish one offense level for the crimes of escape, or instigating or assisting escape...