US v. Medeiros, Crim. No. 88-00153.

• Decision Date: 28 March 1989
• Docket Number: Crim. No. 88-00153.
• Citation: 710 F. Supp. 106
• Parties: UNITED STATES of America v. Anthony G. MEDEIROS.
• Court: U.S. District Court — Middle District of Pennsylvania

710 F. Supp. 106

UNITED STATES of America v. Anthony G. MEDEIROS.

Crim. No. 88-00153.

United States District Court, M.D. Pennsylvania.

March 28, 1989.

Frederick E. Martin, Asst. U.S. Atty., Lewisburg, Pa., for U.S.

D. Toni Byrd, Federal Public Defender's Office, Harrisburg, Pa., for Anthony G. Medeiros.

ORDER

MUIR, District Judge.

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

I. Introduction.

Defendant Anthony G. Medeiros requests that we sentence him to a term of imprisonment in this case that is below the range of imprisonment dictated for this case by the federal sentencing guidelines. We must decide whether we have the authority to sentence Medeiros to a term of imprisonment less than that prescribed by the sentencing guidelines, and, if so, whether we choose to exercise this discretion.

II. Procedural and Factual History.

On September 16, 1988, a grand jury returned a one-count indictment charging Medeiros with escaping on or about August 30, 1988, from the farm camp at the United States Penitentiary at Lewisburg, Pennsylvania in violation of 18 U.S.C. § 751(a). Medeiros on December 28, 1988, entered a plea of guilty to the one count indictment.

The Court received on March 3, 1989, a copy of the pre-sentence report prepared in this case. On March 7, 1989, Medeiros filed a notice of intent to seek a downward departure from the guideline range and to seek a concurrent sentence. A pre-sentence conference was held with the Court on March 8, 1989. On March 15, 1989, the United States filed a brief in opposition to Medeiros's request for a downward departure from the guideline range and for a concurrent sentence. The United States did not address the issue of a concurrent sentence in its brief. Also on March 15, 1989, a pre-sentence hearing was conducted. Medeiros filed a reply brief concerning his request for a downward departure from the guideline range and for a concurrent sentence on March 20, 1989.

Medeiros concedes that the sentencing guideline imprisonment range of 24 to 30 months calculated by the probation officer and set forth in the pre-sentence report is computed correctly pursuant to the Sentencing Reform Act of 1984 and the Federal sentencing guidelines.

III. Discussion.

The offense in this case was committed after November 1, 1987, and therefore the sentence we impose is governed by the Sentencing Reform Act of 1984 and the sentencing guidelines promulgated pursuant thereto. See United States v. Uca, 867 F.2d 783 at 785 (3d Cir.1989). The Sentencing Reform Act authorizes a departure from the sentence range prescribed by the federal sentencing guidelines if "...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. § 3553(b). The United States Court of Appeals for the Third Circuit has indicated that departures from the sentencing guideline range are the exception rather than the rule. See United States v. Uca, at 786-87. The Court of Appeals has also indicated that a district court may depart from the sentencing guideline "when a district court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm." Chapter 1, Part A, Introduction 4(b) of the Federal Sentencing Guidelines (quoted in United States v. Ryan, 866 F.2d 604 at 607 (3d Cir.1989)).

The Court of Appeals has tacitly admitted that it is difficult for a district court to determine whether "... there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." See United States v. Ryan, at 610 ("Here, as in many situations, there is really no way of knowing whether or not the Commission would view the circumstances of this case as `unusual.'"). It is not entirely clear to us what the phrase "adequately taken into consideration" means. The Court of Appeals has apparently interpreted this phrase to mean that the district court should examine whether "the Guidelines ... give adequate consideration" to an allegedly aggravating or mitigating circumstance which a party claims should warrant a departure from the guidelines. See United States v. Uca, at 789. The formulation indicated by United States v. Uca appears to us to be more manageable because the inquiry under this formulation is whether the guidelines give adequate consideration to a particular circumstance rather than whether the Sentencing Commission "adequately took into consideration" a particular circumstance, 18 U.S.C. § 3553(b). With the understanding that our function is to determine whether the guidelines "give adequate consideration" to the allegedly mitigating circumstances which Medeiros contends warrant a downward departure from the guidelines in this case, we turn to the allegedly mitigating circumstances presented by him.

A. Whether the sentencing guidelines give adequate consideration to the difference between walking away from a non-secure institution and escaping from a secure institution.

Medeiros asserts that the Sentencing Commission did not adequately consider the difference between walking away from a non-secure institution such as the farm camp at the Lewisburg Penitentiary and escaping from a secure institution such as the Lewisburg Penitentiary. Pursuant to the discussion above, we will rephrase this assertion as whether the sentencing guidelines give adequate consideration to the difference between walking away from a non-secure institution and escaping from a secure institution and we will analyze this issue as rephrased.

Medeiros sets forth two arguments in support of his contention that the guidelines do not give adequate consideration to the difference between walking away from a nonsecure institution and escaping from a secure institution. First, Medeiros points out that an individual who escapes from a secure institution is assigned the same guideline range as an individual who walks away from a non-secure institution provided that their "Criminal History Categories" are the same. Medeiros argues that an escape from a secure institution is a much more serious offense than walking away from a non-secure institution. Medeiros adds that a 24 to 30 month sentence for walking away from a non-secure institution is unduly harsh. The implication of Medeiros's argument is that the guideline range of 24 to 30 months is predicated upon someone escaping from a secure institution and for that reason, we should impose a sentence upon him which is less than the guideline range because his conduct only involved walking away from a non-secure institution.

There are two problems with this argument by Medeiros. First, we are of the view that walking away from a non-secure institution involves less serious conduct than escaping (or attempting an escape) from a secure institution because escaping (or attempting to escape) from a secure institution generally involves some or all of the following while walking away from a non-secure institution frequently involves none of the following: (1) a conspiracy with individuals inside or outside of the institution; (2) the threat or use of violence against other inmates or correctional officials; (3) the possession of contraband by the inmate or inmates planning to escape; and (4) a breach of the security of the institution which results in damage to federal property. All four of the factors just listed constitute separate federal criminal offenses. In addition, the use or threat of force against any person during an escape results in an enhanced sentence for the crime of escape under the guidelines as they currently exist. See sentencing guidelines, § 2P1.1(b)(1). Because an individual who escapes from a secure institution will generally have committed one or more of the additional offenses just listed, such individual almost certainly will be assigned a higher guideline range than an individual who walks away from a non-secure institution. In the instance in which an individual escapes from a secure institution without committing any of the additional offenses listed...