Revised February 19, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-40329
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY WAYNE BROOKS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
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January 27, 1999
Before KING, Chief Judge, STEWART, Circuit Judge, and LITTLE*,
District Judge.
PER CURIAM:
Defendant-appellant Anthony Brooks appeals the sentence
imposed after he pleaded guilty to distributing crack cocaine.
He argues, among other things, that a prior state sentence to
boot camp should not be considered a “term of imprisonment” for
purposes of calculating his criminal history score. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
*
Chief Judge F. A. Little, Jr., of the Western District of
Louisiana, sitting by designation.
Anthony Brooks was charged with conspiring to distribute and
possess “cocaine base, also known as crack cocaine” and with
possessing with intent to distribute and distributing “cocaine
base, also known as crack cocaine.” Brooks entered into a plea
agreement with the government, pursuant to which he agreed to
plead guilty to the charge of “distribution of cocaine base, also
known as crack cocaine.” In exchange for Brooks’s assistance the
government agreed, inter alia, to stipulate that Brooks’s base
offense level should be 32 based upon a provable quantity of more
than 50 grams but less than 150 grams of “crack cocaine.”
At Brooks’s plea hearing, Brooks waived the reading of the
count to which he pleaded guilty. The prosecuting attorney then
outlined the plea agreement for the court, explaining that Brooks
had agreed to plead guilty to one charge of “distribution of
crack cocaine,” and that the United States and Brooks agreed that
his base offense level should be 32 “based on the provable
quantity of more than 50 but less than 150 grams of crack
cocaine.” Brooks then agreed, inter alia, that the prosecution
had correctly stated the plea bargain, that he did not wish to
comment on the plea bargain, and that he fully understood the
charges against him. The trial court then proceeded to inform
Brooks of the elements of the offense to which he pleaded guilty,
including “that the substance was, in fact, crack cocaine.”
Brooks stated that he understood these elements. After further
questioning by the court, the trial judge allowed the prosecution
2
to make a factual basis for the court to accept the plea. The
prosecuting attorney asked Brooks if he had sold “a quantity of
crack cocaine for $825?” Brooks answered in the affirmative.
The court then accepted Brooks’s plea.
Brooks made two objections to the presentence report (PSR)
prepared for his sentencing. First, Brooks objected to the
probation officer’s findings regarding the quantity of crack
cocaine used to determine his sentence. Second, Brooks argued
that the probation officer incorrectly characterized a term spent
in a state boot camp, in an alternative incarceration program, as
a term of imprisonment for purposes of calculating his criminal
history category. The district court overruled Brooks’s
objections at his sentencing hearing, adopted the findings in the
PSR, and sentenced Brooks to the minimum sentence allowed under
the sentencing guidelines, 108 months, to be followed by a four-
year term of supervised release. Brooks timely appealed.
II. DISCUSSION
Brooks raises two issues on appeal. First, he contends that
the district court erred in finding that he had possessed crack
cocaine, as opposed to powdered cocaine, thereby subjecting him
to the enhanced penalties for offenses involving crack cocaine.
Second, he appeals the district court’s rejection of his second
objection to the PSR, namely, that his time spent in a state boot
camp program should not be counted as a “term of imprisonment”
3
for purposes of calculating his criminal history category. We
address these issues in turn.
1. The Crack Cocaine Enhancement
Section 2D1.1 of the United States Sentencing Guidelines
(U.S.S.G.) dictates enhanced punishment for persons convicted of
crimes involving cocaine base, or crack cocaine, as opposed to
powder cocaine. Brooks argues that the record does not support a
finding that he possessed crack cocaine, and that the trial court
therefore erred in applying § 2D1.1.
Brooks admits that he raises this issue for the first time
on appeal, and we therefore apply the plain-error standard of
review. See United States v. Spires, 79 F.3d 464, 465 (5th Cir.
1996); United States v. Calverley, 37 F.3d 160, 162 (5th Cir.
1994) (en banc). Under plain-error review, this court may
reverse only if: (1) there was error (2) that was clear and
obvious and (3) that affected a defendant's substantial rights.
See Calverley, 37 F.3d at 162-64 (citing United States v. Olano,
507 U.S. 725, 730-36 (1993)). When these elements of plain error
are present, a court may exercise its discretion to correct the
error if it “‘seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.’" Id. at 164 (quoting
Olano, 507 U.S. at 732).
We rejected an identical claim on plain-error review in
United States v. Brewster, 137 F.3d 853, 857 (5th Cir.), cert.
denied, 119 S. Ct. 247 (1998). In that case, although the
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defendant pleaded guilty to, and was sentenced for, possession
with intent to distribute cocaine base, he argued that the record
was insufficient to support a finding that the substance involved
was crack cocaine. See id. We found that the district court did
not plainly err in sentencing the defendant under the cocaine
base guidelines, noting that the record was clear that the
defendant was aware that he pleaded guilty to possessing crack
cocaine, and that he understood that the enhanced crack cocaine
guideline applied to his case. See id.
We similarly find that the district court in this case did
not commit plain error by sentencing Brooks under the crack
cocaine guidelines. As described above, the record indicates
that Brooks clearly understood that he was charged with, and
pleaded guilty to, distributing crack cocaine. At his plea
hearing, Brooks heard the prosecuting attorney outline his plea
agreement that indicated that he was pleading guilty to
distributing crack cocaine, agreed with this characterization of
the plea, informed the court that he understood the elements of
the offense he wished to plead guilty to, including that “the
substance was, in fact, crack cocaine,” and answered
affirmatively to the prosecutor’s question as to whether he had
sold crack cocaine. We have no trouble finding that the district
court’s decision to sentence Brooks under the cocaine base
guidelines was not plain error on these facts. See id.
2. Boot Camp as a Term of Imprisonment
5
Brooks next argues that the district court incorrectly
increased his criminal history score by two points because of a
prior state sentence for delivery of a controlled substance.
Brooks pleaded guilty in that case and was sentenced to serve a
ten-year term in a “special alternative incarceration program
(boot camp) followed by probation.” The PSR indicated that
Brooks was released from confinement after 170 days; Brooks
argued in his objections to the PSR that he spent only 83 days in
boot camp. Brooks argued to the district court, and argues now
on appeal to this court, that his boot camp sentence should not
be considered a “term of imprisonment” for purposes of
calculating his criminal history score.
“Review of sentences imposed under the guidelines is limited
to a determination whether the sentence was imposed in violation
of law, as a result of an incorrect application of the sentencing
guidelines, or was outside the applicable guideline range and was
unreasonable.” United States v. Matovsky, 935 F.2d 719, 721 (5th
Cir. 1991). Legal conclusions of the district court are reviewed
de novo, and findings of fact are reviewed for clear error. See
United States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir. 1993).
Under U.S.S.G. § 4A1.1(b), two points are added to a
defendant’s criminal history score for each prior sentence of
imprisonment of at least 60 days which was not previously counted
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under § 4A1.1(a).1 The term “sentence of imprisonment” is
defined in the sentencing guidelines as “a sentence of
incarceration and refers to the maximum sentence imposed.”
U.S.S.G. § 4A1.2(b)(1).2
Brooks argues that his time in boot camp was merely a
precondition of his term of probation and should not be
considered a term of imprisonment for purposes of § 4A1.1. He
advances two central reasons in support of this interpretation;
first, that the purpose of boot camp is rehabilitation, as
opposed to punishment; and second, that Texas law treats boot
camp as community corrections, not imprisonment.
We find Brooks’s argument on this issue unconvincing, and
hold that the district court did not err in finding that Brooks’s
1
Brooks argues, as he did in his objections to the PSR,
that he only served 83 days in boot camp, not 170 days as
reflected in the report. Because the two-level increase applies
to terms of imprisonment of at least 60 days but less than one
year and one month, this factual discrepancy does not affect
Brooks’s criminal history score. See U.S.S.G. § 4A1.1(a) (adding
three points for each prior sentence of imprisonment exceeding
one year and one month).
2
Brooks was actually sentenced to ten years’ confinement in
the boot camp program. Although “[f]or the purposes of applying
§ 4A1.1(a), (b), or (c), the length of sentence of imprisonment
is the stated maximum,” U.S.S.G. § 4A1.2 n.2, the government does
not argue that § 4A1.1, which applies to sentences exceeding one
year and one month, applies. We note that under the Texas
statute outlining the boot camp program, between 75 and 90 days
after a defendant reports to boot camp, “the judge of the court
that imposed the sentence may suspend further execution of the
sentence imposed” provided the judge is of the opinion that “the
person would not benefit from further imprisonment.” Tex. Code
Crim. Proc. Ann. art. 42.12 Sec. 8 (West Supp. 1997).
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boot camp term was properly a sentence of imprisonment for
purposes of § 4A1.1. The Tenth Circuit reached a similar
conclusion in United States v. Vanderlaan, 921 F.2d 257, 258-59
(10th Cir. 1990), in which it reasoned that a defendant’s
sentence under the Narcotic Addict Rehabilitation Act (NARA),
pursuant to which he was committed to the custody of the Attorney
General for enrollment in a drug rehabilitation program, was a
“sentence of imprisonment” under the sentencing guidelines. In
that case, as here, the defendant argued on appeal that because
the purpose of his treatment program was “to provide treatment
and rehabilitation for addicted offenders, not to punish them,”
his “treatment was fundamentally different from a sentence of
imprisonment.” Id. at 259. The Tenth Circuit rejected that
argument, stating:
We find that the defendant’s sentence under Title II of
NARA in 1973 was a “sentence of imprisonment” as that
phrase is used in the guidelines. Section 4A1.2(b) of
the guidelines defines a sentence of imprisonment as a
“sentence of incarceration.” This suggests that
physical confinement is a key distinction between
sentences of imprisonment and other types of sentences.
The guidelines make no distinction between offenders
incarcerated primarily for rehabilitation and those
incarcerated simply to remove the offender from
society.
Id. (footnote omitted). We agree with the Tenth Circuit’s
analysis of this issue. The commentary to U.S.S.G. § 4A1.1
explains that “confinement sentences” of over six months qualify
for § 4A1.2(b) treatment, expressly distinguishing types of
sentences not requiring twenty-four hours a day physical
8
confinement, such as “probation, fines, and residency in a
halfway house.” Brooks was not free to leave the boot camp; his
confinement there, therefore, falls into the former category of
incarcerations eligible for § 4A1.1(b) treatment. See id.;
United States v. Ruffin, 40 F.3d 1296, 1299 (D.C. Cir. 1994)
(stating that defendant’s sentence of one-year work release, in
which he was imprisoned on weekends and from 6:00 p.m. to 6:00
a.m. daily, was a “sentence of imprisonment” for purposes of §
4A1.1(b)); see also United States v. Schomburg, 929 F.2d 505, 507
(9th Cir. 1991) (finding that defendant’s sentence of one-year
weekend work project was a “sentence of imprisonment” for
purposes of § 4A1.1(b), despite lack of custodial confinement,
based on sheriff’s discretion to alter sentence to include
imprisonment). In addition, this court has previously found that
§ 4A1.1(b) properly applies to increase a defendant’s criminal
history, even if the defendant’s adjudication was deferred, where
the defendant served 180 days in a work release program. See
United States v. Valdez-Valdez, 143 F.3d 196, 202 (5th Cir.
1998). We therefore find that the district court did not err in
characterizing Brooks’s boot camp sentence as a “term of
imprisonment” subject to § 4A1.1.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the order of the
district court.
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United States v. Brooks
Combined Opinion