US v. Bell

• Decision Date: 30 June 1989
• Docket Number: Crim. No. 5-88-021(01).
• Citation: 716 F. Supp. 1207
• Parties: UNITED STATES of America, Plaintiff, v. Richard Leonard BELL, Defendant.
• Court: U.S. District Court — District of Minnesota

716 F. Supp. 1207

UNITED STATES of America, Plaintiff, v. Richard Leonard BELL, Defendant.

Crim. No. 5-88-021(01).

United States District Court, D. Minnesota, Third Division.

June 30, 1989.

Richard E. Vosepka, Asst. U.S. Atty., Minneapolis, Minn., for plaintiff.

Robert W. Owens, Jr., Minneapolis, Minn., for defendant.

STATEMENT OF REASONS FOR IMPOSING SENTENCE

MAGNUSON, District Judge.

I. Findings of Fact

Neither the government nor the defendant, Richard Leonard Bell, has objected to the factual statements contained in the presentence investigation report (PSI). The court therefore adopts those statements as its findings of fact. For purposes of this opinion the court will provide a synopsis of those findings and will highlight the facts that are pertinent to sentencing.

On April 30, 1982, Bell pleaded guilty to two counts of armed bank robbery. He received concurrent sentences of eighteen years on each of these counts. Bell was paroled on January 23, 1986 and remained on parole until July 13, 1988, when the United States Parole Commission revoked his parole for violation of his parole conditions. Bell had committed a petty larceny and pleaded guilty to that offense six months earlier under an assumed name. Apparently Bell reported the petty larceny to his parole officer, who had been unaware of the offense during the six month period. As a result, the Parole Commission issued a warrant for Bell's arrest and ultimately set Bell's parole date back twelve months to May 12, 1989.

Bell arrived at the Federal Correction Institute at Sandstone, Minnesota on June 9, 1988. He remained there until October 17, 1988, at which time the authorities at Sandstone discovered that Bell was missing from the outside ground detail. Prison officials contacted the United States Marshal's Service, reported Bell missing and advised the marshals that Bell did not have permission to leave. On October 22, 1988, Bell was arrested in East Greenwich, Rhode Island. Bell pleaded guilty to the offense of escape on March 20, 1989.

II. Application of the Guidelines

Because Bell's escape occurred after November 1, 1987, the Sentencing Reform Act of 1984¹ and the sentencing guidelines promulgated thereunder apply. The probation office has calculated the guidelines applicable to this case as follows: Bell pleaded guilty to a violation of 18 U.S.C. § 751(a). Guideline § 2P1.1(a)(1) provides that the base offense level for this offense is thirteen. The probation officer recommended a two-level adjustment for acceptance of responsibility, yielding a total offense level of eleven. Prior to his escape, Bell committed a number of other criminal offenses which are reflected in his criminal history score. In 1979 Bell received a five-year suspended sentence for auto theft and arson. Under guideline § 4A1.1(c) Bell received one criminal history point for this offense. Similarly, Bell received one point for a suspended sentence for possession of marijuana in 1982. For the bank robberies in 1983 Bell earned three additional criminal history points pursuant to § 4A1.1(a). For the petty larceny offense that Bell committed while on parole, he received one criminal history point. Finally, under the authority of § 4A1.1(d) the probation officer added two points to Bell's criminal history score because Bell committed the instant escape offense while under a criminal justice sentence. The resulting criminal history score of eight placed Bell in criminal history category IV, and, when combined with a total offense level of eleven, yielded a guideline imprisonment range of eighteen to twenty-four months. The probation officer also noted that guideline § 5G1.3 mandates a consecutive sentence.

Defendant challenges these guideline calculations on two grounds. First, Bell contends that since an individual cannot commit the offense of escape unless he is under a criminal justice sentence, the two-point addition to the criminal history score mandated by guideline § 4A1.1(d) is not appropriate in an escape case. Second, Bell notes that the Parole Commission will add time to the period of incarceration that he will serve by extending his parole date. The Parole Commission will impose this additional period of incarceration on Bell's bank robbery sentence regardless of the sentence imposed by the court for the separate offense of escape. Bell contends that this Parole Commission "sentence" is a factor not adequately considered by the Sentencing Commission in adopting guideline § 5G1.3. Therefore, Bell's escape sentence should run concurrently with his prior sentence in order to avoid double punishment for the single offense of escape.

The court construes both of Bell's objections as arguments for a sentence departing from that specified by the guidelines. In considering a departure sentence the court is guided by 18 U.S.C. § 3553(b), which states that the court shall impose sentence within the range designated by the guidelines "unless 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." Section 3553(b) further provides, "In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission."

The Introduction to the Federal Sentencing Guidelines Manual, an official publication of the Sentencing Commission, sheds additional light on the standards governing departure. The Sentencing Commission acknowledges that the current guidelines are an "initial set of guidelines" that will go through an evolutionary process. "By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so, the Commission, over time, will be able to create more accurate guidelines that specify precisely where departures should and should not be permitted." Federal Sentencing Guidelines Manual, Introduction at 7 (West 1988). The Commission excludes only race, sex, national origin, creed, religion and socio-economic status, finding these to be illegitimate grounds for departure. Apart from these, "the Commission does not intend to limit the kinds of factors (whether or not mentioned anywhere else in the guidelines) that could constitute grounds for departure in an unusual case." Id. at 6-7.

Bell's first argument for departure is that the Sentencing Commission did not adequately consider the impact of guideline § 4A1.1(d) in an escape case. Bell does not challenge § 4A1.1(d) on its face or as it applies to other offenses. Bell contends that the Sentencing Commission should have carved out an exception to § 4A1.1(d) for escape cases because every individual guilty of the offense of escape is necessarily under a criminal justice sentence. The base offense level already includes consideration of the offender's incarcerated status, and further consideration of the offender's incarceration in computing a criminal history score constitutes double counting. Bell does not attack § 4A1.1(d) on constitutional grounds. He merely asserts that the Commission's failure to make an exception for escape cases demonstrates that it did not adequately consider the issue of double counting.

Generally, an offender's criminal history score and offense level are calculated independently. The criminal history score reflects the offender's prior criminal activity while the offense level measures the severity of the current offense. In this way the guidelines attempt to account for all factors relevant to sentencing, and in most cases this method is satisfactory. However, in an escape case application of guideline § 4A1.1(d) results in an overlap between current and prior offenses. The statute proscribing escape provides, "Whoever escapes or attempts to escape ... from any institution or facility in which he is confined by direction of the Attorney General" is guilty of escape. Thus, being incarcerated is an element of the offense. In addition, under the terms of § 4A1.1(d), the offender's incarcerated status enhances his criminal history score.

A basic policy of the guidelines is to avoid double counting. This is reflected in a number of guidelines relating either to specific offenses or to adjustments applicable to a variety of offenses. Guideline § 2K2.4 applies to penalties for the use of firearms or armor-piercing ammunition in a crime of violence or drug trafficking offense. It states that the penalties for these actions are to be determined by 18 U.S.C. §§ 924(c) and 929(a), not by other guidelines that would enhance the penalty for an underlying offense because a firearm was used during its commission. For example, guideline § 2B3.1(b)(2) provides for enhancement of the offense level for robbery as follows:

(A) If a firearm was discharged increase by 5 levels; (B) if a firearm or a dangerous weapon was otherwise used, increase by 4 levels; (c) if a firearm or other dangerous weapon was brandished, displayed or possessed, increase by 3 levels.

If the court imposes sentence in a robbery case pursuant to 18 U.S.C. § 924(c), then the court may not also enhance the robbery sentence under guideline § 2B3.1(b)(2). The Commission's commentary to guideline § 2K2.4 makes this clear. "Where a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for the possession, use, or discharge of a firearm ... is not to be applied in respect to the guideline for the underlying offense." Commentary to § 2K2.4, Application Note 2. The background commentary on § 2K2.4 further states that the purpose of this guideline is "to avoid double counting."

Chapter three of the guidelines, which covers adjustments, contains numerous examples that demonstrate the Sentencing...