US v. Birchfield, Crim. No. 88-234-N.

• Decision Date: 09 February 1989
• Docket Number: Crim. No. 88-234-N.
• Parties: UNITED STATES of America v. Harold Clay BIRCHFIELD.
• Court: U.S. District Court — Middle District of Alabama

709 F. Supp. 1064

UNITED STATES of America v. Harold Clay BIRCHFIELD.

Crim. No. 88-234-N.

United States District Court, M.D. Alabama.

February 9, 1989.

James Eldon Wilson, U.S. Atty., Charysse L. Alexander, Asst. U.S. Atty., Montgomery, Ala., for U.S.

James C. Martin, Jr., Montgomery, Ala. (Court-appointed), for Birchfield.

ORDER

MYRON H. THOMPSON, District Judge.

Defendant Harold Clay Birchfield, who has entered a guilty plea to the offense of escape, 18 U.S.C.A. § 751(a), is now before the court for sentencing. The issue presented to the court is whether a "departure downward" is appropriate under the Sentencing Reform Act of 1984 as amended, 18 U.S.C.A. §§ 3551, et seq., and 28 U.S.C.A. §§ 991, et seq. Based on the evidence and the governing sentencing guidelines, the court determines that a departure downward is warranted and that Birchfield should be sentenced to a term of four months incarceration.

I. BACKGROUND

The facts of this case are simple and uncontested. On October 15, 1988, Harold Clay Birchfield was an inmate at the Maxwell Federal Prison Camp in Montgomery, Alabama. After his wife and daughter had departed from the camp at the end of the day's visiting hours, Birchfield became despondent and decided to visit again with his family, hoping to have conjugal relations with his wife before she left for their home in Georgia. Shortly after 5:00 p.m., Birchfield left the confines of the prison and jogged to the nearby motel where his wife was staying. He arrived at the motel at approximately 5:30 p.m. Coincidental with his arrival at the motel, officials at the prison camp received an anonymous phone call reporting that Birchfield was at the motel.¹ Duty officers from the prison camp proceeded to the motel where they apprehended Birchfield and returned him to the camp without incident.

Later, the superintendent of the prison camp decided to prosecute Birchfield, and Birchfield was arrested. On November 15, 1988, Birchfield pled guilty in this court to the charge of escape, 18 U.S.C.A. § 751(a).

II. APPLICATION OF THE SENTENCING GUIDELINES

For the most part, the government and the defendant agree on the calculation of the guideline factors. They agree that Birchfield's criminal past establishes a criminal history category of III.² Moreover, they agree that the base offense level for Birchfield's misconduct is 13, see § 2P1.1(a)(1), Sentencing Guidelines Manual, and that Birchfield clearly deserves a two level reduction for demonstrating affirmative acceptance of personal responsibility. See § 3E1.1. Where the government and Birchfield part course, however, is in determining whether the specific offense characteristic located at § 2P1.1(b)(2) is applicable in this matter.

Section 2P1.1(b)(2), if applicable, would permit the court to decrease Birchfield's base offense level by seven levels. However, this reduction is only applicable in cases where "the defendant escaped from non-secure custody and returned voluntarily within ninety-six hours." § 2P1.1(b)(2). Relying upon the definition of "returned voluntarily" found in the Commentary Application Note 2 to § 2P1.1, Sentencing Guidelines Manual, it becomes evident that Birchfield does not meet the literal requirements of § 2P1.1(b)(2).³

Thus, if the court were to act merely as an automaton and mechanically apply the guidelines, a term of incarceration of between 12 and 18 months would be in order. Chap. 5, Sentencing Table, Sentencing Guidelines Manual.

III. THE ROLE OF JUDGES UNDER THE SENTENCING GUIDELINES

The court would be remiss, however, if it were merely to act in such a rigid manner in this case. While it is clear that the events surrounding Birchfield's return to the Maxwell Prison Camp do not meet the literal terms of § 2P1.1(b)(2), it is equally apparent to the court that Birchfield, upon having completed his conjugal visit, would have returned of his own volition within two and one-half hours from his departure from the prison camp. The court is therefore of the opinion that it would be manifestly unfair not to take this fact into consideration.

The government has argued that this court cannot take this fact into consideration. It acknowledges that Congress has provided that courts may depart from the applicable sentencing guidelines when 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." 18 U.S.C.A. § 3553(b). However, the government contends that, because the Sentencing Commission created an exception with § 2P1.1(b)(2) to lessen the punishment for individuals guilty of escape, 18 U.S.C.A. § 751(a), this court must assume that the Sentencing Commission has considered all the possible permutations of circumstances concerning misconduct proscribed by § 751(a) and has chosen those circumstances most relevant.

A.

The government overlooks a significant feature in the structure of the guidelines: their evolutionary nature. As envisioned by the Sentencing Commission, the guidelines are to go through at least two phases. In this, the initial phase, judges should view the guidelines less as determinate sentences and more as starting points in the sentencing process. Toward this end, the Commission has adopted a somewhat moderate, rather than severely limiting, departure policy by expressly announcing that sentencing judges should not assume that the Commission has adequately considered all relevant factors, except in certain limited circumstances not relevant here. In the introduction to the Sentencing Guidelines Manual, the Commission states:

In principle, the Commission, by specifying that it had adequately considered a particular factor, could prevent a court from using it as grounds for departure. In this initial set of guidelines, however, the Commission does not so limit the courts' departure powers. The Commission intends the sentencing courts to treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.... Except for certain explicitly listed factors, 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 1.6-1.7. Thus, the Commission's own statement expressly belies the government's position here.

As explained below, the Commission's approach is based on a recognition that these initial guidelines may be significantly flawed because they have not yet been sufficiently subjected to the practical experience of federal judges or otherwise been sufficiently field tested.

B.

The sentencing guidelines represent a drastic change from prior federal sentencing practices. For nearly a century prior to the introduction of the guidelines, the federal government employed a system of indeterminate sentencing. Viewing the primary purpose of sentencing to be that of rehabilitating the offender, courts attempted to obtain as much information about the defendant in order to determine the appropriate treatment. Williams v. New York, 337 U.S. 241, 249-52, 69 S.Ct. 1079, 1084-85, 93 L.Ed. 1337 (1949). With the exception of certain considerations that were viewed to be unconstitutional, judges were free, and indeed encouraged, to consider any and all available information concerning the individual criminal.⁴ Of course, how judges reacted to the information presented to them varied from judge to judge.⁵ This was, in part, because judges' perceptions differed with regards to the importance of various factors presented to them,⁶ and, in part, because no particular fact could be said to have a direct, measurable effect on the ultimate length of sentence.⁷

In order to remedy the inequities perceived to be inherent in this method of unstructured sentencing, Congress established a Sentencing Commission to create a system of sentencing guidelines. Under this new system, Congress stated that rehabilitation of criminal offenders was no longer to be considered the primary purpose of criminal incarcerative sentencing. See Mistretta v. United States, ___ U.S. ___, ___ - ___, 109 S.Ct. 647, 648-49, 102 L.Ed.2d 714 (1989) (citing 28 U.S.C.A. § 994(k) and S.Rep. No. 98-225, at 38, 65, reprinted in 1984 U.S.Code & Cong.Admin.News 3182). In its stead, uniformity, proportionality, and certainty of punishment were to be emphasized.

One of the first questions confronting the Sentencing Commission was: What facts are relevant in determining the length of criminal sentences? Of the thousands of facts that previously went into calculating an individual sentence, the Commission had to choose a relative handful to be the relevant factors in defining sentence length. And, given that the predominate characteristic in a guidelines system is that the existence of certain facts has a determinable, measurable impact on the ultimate sentence, the selection of the material facts was of utmost importance. Cf. Note, How Unreliable Factfinding Can Undermine Sentencing Guidelines, 95 Yale L.J. 1258 (1986).

The Commission, however, recognized that its product might well be deficient for two reasons: first, because its source data were imperfect; and, second, because the guidelines had not been sufficiently field tested. To remedy these deficiencies, the Commission adopted, in the initial phase of the guidelines, a moderate, rather than severely restrictive, departure policy as somewhat of a feedback mechanism. Under this mechanism, whenever a court believes that a guideline does not reflect a fair sentence under the circumstances, the court has the...