US v. Jordan, Crim. A. No. 89-00501.
| Citation | 734 F. Supp. 687 |
| Decision Date | 26 April 1990 |
| Docket Number | Crim. A. No. 89-00501. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
| Parties | UNITED STATES of America v. Harold JORDAN. |
Maureen Barden, Asst. U.S. Atty., Philadelphia, Pa., for plaintiff.
Claire J. Rauscher, Asst. Defender, Defender Ass'n of Philadelphia, Philadelphia, Pa., for defendant.
Defendant pleaded guilty to one count of wire fraud and one count of mail fraud. The offense conduct, which commenced in February of 1987, involved a scheme to defraud South African nationals through false representations that the defendant was able to obtain special assistance from Senator Heinz in obtaining permanent residency status in the United States. Defendant defrauded five victims of a total of $2,750.
Defendant raises two objections to the presentence report. First, defendant argues that his criminal history score is incorrectly calculated. Defendant also objects to the two-point upward adjustment because his victims were unusually vulnerable under section 3A1.1 of the Sentencing Guidelines.
The criminal history score as calculated in the presentence report is 3. That score is based on one prior sentence for prison breach imposed on December 12, 1968. At that time, defendant was serving a sentence for violation of parole, so imprisonment on the prison breach sentence did not begin until April 13, 1971. On August 4, 1971, defendant was released from state prison and served the balance of the sentence for prison breach at a community treatment center on work release status. The sentence for prison breach officially expired on March 13, 1973.
Under the Guidelines, a prior sentence of imprisonment exceeding one year and one month is counted toward a defendant's criminal history score if it was either imposed within fifteen years of the commencement of the instant criminal conduct or if the prior sentence, regardless of the date of imposition, resulted in the defendant being incarcerated during the same fifteen-year period. U.S.S.G. § 4A1.2(e)(1). The prior sentence in this case was imposed more than fifteen years before the commencement of the instant offense. Thus, if the prior sentence is to be counted at all, it is because defendant was incarcerated during the period as a result of it. The narrow question, then, is whether residence at a community treatment center qualifies as "incarceration" because that is the only form of custody to which defendant was subjected during the fifteen-year period.
There is no definition of "incarceration" in the Guidelines. Section 4A1.2(b)(1) defines "sentence of imprisonment" as a sentence of incarceration, but that does not shed any direct light on the work release question. What is illuminating, however, is the way in which Chapter Five of the Guidelines, "Determining The Sentence," treats community confinement as an alternative to a sentence of imprisonment in certain situations. Sections 5C1.1(d) and 5C1.1(e) set forth the situations in which a defendant may be eligible for a sentence other than imprisonment. As these provisions make clear, community confinement is a substitute for imprisonment for offenders with relatively low guideline ranges. Given this usage, as well as the equivalent meanings of "imprisonment" and "incarceration" indicated by section 4A1.2(b)(1), I am satisfied that the term "incarceration" in section 4A1.2(e)(1) refers to imprisonment in a jail or similar correctional facility and does not include residence in a community treatment center. This conclusion is in keeping with the general principle that penal statutes are to be construed strictly so that no one is subject to a penalty unless the statute plainly imposes it. E.g., United States v. Campos-Serrano, 404 U.S. 293, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971). Thus, defendant's sentence for prison breach imposed on December 12, 1968 does not count toward his criminal history...
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Benedict v. Sw. Pa. Human Servs., Inc.
...in a jail or similar correctional facility and does not include residence in a community treatmentcenter,”7 United States v. Jordan, 734 F.Supp. 687, 688 (E.D.Pa.1990). The Third Circuit has cited Jordan approvingly when it held that “ ‘community confinement’ cannot constitute ‘imprisonment......
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U.S. v. Serafini
...18 F.3d 443, 446 (7th Cir. 1994); United States v. Jalili, 925 F.2d 889, 892-93 (6th Cir. 1991); see also United States v. Jordan, 734 F. Supp. 687, 688 (E.D. Pa. 1990). Therefore, if the District Court had so ordered this confinement as satisfying the requirement for imprisonment, it would......
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US v. Miller, Crim. A. No. 94-337.
...v. Creech, 913 F.2d 780, 782 (10th Cir.1990); United States v. Davis, 967 F.2d 516, 524 (11th Cir.1992); United States v. Jordan, 734 F.Supp. 687, 688-89 (E.D.Pa.1990) (Katz, J.); United States v. Boula, 787 F.Supp. 819, 825 (N.D.Ill.1992), aff'd in part and vacated in part on other grounds......
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U.S. v. Jalili
...to mean that community confinement may be included as a condition during the term of supervised release. See United States v. Jordan, 734 F.Supp. 687, 688 (E.D.Pa.1990) ("the term 'incarceration' in section 4A1.2(e)(1) refers to imprisonment in a jail or similar correctional facility and do......