UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5189
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT PADGETT, a/k/a Snoop,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:09-cr-00160-1)
Submitted: September 8, 2010 Decided: October 7, 2010
Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, J. Christopher
Krivonyak, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Laver Padgett pleaded guilty to one count of
escape, in violation of 18 U.S.C. § 751(a) (2006), and was
sentenced to 24 months’ imprisonment. On appeal, Padgett
contends that the district court erred in not granting him a
four-level offense reduction under United States Sentencing
Guidelines Manual § 2P1.1(b)(3) (2008) for escaping from “non-
secure custody.” Given the circumstances of Padgett's escape,
we agree with the district court that Padgett is not eligible
for the reduction. We accordingly affirm.
In 1998, Padgett was convicted of conspiracy to
possess and distribute crack cocaine and sentenced to 188
months’ imprisonment. On January 14, 2009, Padgett was
transferred from the Bureau of Prisons to Bannum Place, a
halfway house in Rand, West Virginia. On June 11, 2009, two
Deputy United States Marshals arrived at Bannum Place to return
Padgett and several other residents back to Bureau of Prisons
custody for rules violations. After a Marshal woke Padgett and
requested that he accompany him to the dayroom, Padgett
requested and was granted permission to use the restroom.
Padgett then walked to the dayroom with the Marshal. As the
Marshal moved forward to place restraints on Padgett, Padgett
took off running through the front door and into the parking
lot. Padgett ignored the Marshals’ orders to stop and headed
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into a wooded area at the back of a parking lot. One of the
Marshals pursued Padgett and caught up with him after both men
slid down an embankment. Padgett resisted the Marshal’s efforts
to handcuff him, and the Marshal tasered Padgett. Padgett was
then taken back to Bannum Place without further incident.
According to Padgett, he was attempting to throw his cell phone
and cell phone charger — both contraband — into the river and
was not actually attempting to escape the Marshals’ custody.
Padgett was charged with one count of escape, in
violation of 18 U.S.C. § 751(a). After Padgett pleaded guilty,
a probation officer prepared a Presentence Report (PSR). The
PSR calculated a base offense level of 13, with a criminal
history category III. The PSR then recommended a two-level
reduction for acceptance of responsibility and, originally, a
four-level reduction under U.S. Sentencing Guidelines Manual
§ 2P1.1(b)(3) because Padgett escaped from a non-secure
facility. The Government objected to this latter determination,
and the probation officer agreed, removing that four-level
reduction.
At sentencing, the district court declined to give the
two-level reduction for acceptance of responsibility. The
district court also overruled Padgett’s objection to the PSR’s
rejection of the § 2P1.1(b)(3) reduction. The district court
concluded that, although Bannum Place was a non-secure facility,
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custody had been transferred to the United States Marshals at
the time of the escape, creating a more significant confinement
than § 2P1.1(b)(3) permitted. With an offense level of 13 and a
criminal history category of III, the district court calculated
Padgett’s advisory Guidelines range as 18 to 24 months’
imprisonment. After permitting argument on an appropriate
sentence and hearing a statement from Padgett himself, the
district court sentenced Padgett to 24 months’ imprisonment.
Padgett noted a timely appeal.
On appeal, Padgett argues that the district court
erred in failing to apply the § 2P1.1(b)(3) reduction in this
case. In reviewing any sentence, “whether inside, just outside,
or significantly outside the Guidelines range,” we apply a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). We first “ensure[] that the
district court committed no significant procedural error.” Id.
at 51. “If, and only if, we find the sentence procedurally
reasonable can we ‘consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.’”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(quoting Gall, 552 U.S. at 51). “A sentence based on an
improperly calculated guidelines range will be found
unreasonable and vacated.” United States v. Abu Ali, 528 F.3d
210, 260 (4th Cir. 2008).
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We review a district court’s interpretation of the
Guidelines de novo. United States v. Maroquin-Bran, 587 F.3d
214, 217 (4th Cir. 2009). In interpreting the Guidelines,
ordinary rules of statutory construction apply. See United
States v. Stokes, 347 F.3d 103, 105 (4th Cir. 2003). Thus, we
give a Guideline “its plain meaning, as determined by
examination of its ‘language, structure, and purpose.’” Id.
(quoting United States v. Horton, 321 F.3d 476, 479 (4th Cir.
2003)). We also examine the commentary accompanying a
Guideline, which “is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v.
United States, 508 U.S. 36, 38 (1993).
United States Sentencing Guidelines Manual § 2P1.1
provides the offense level for escape, setting a base offense
level of 13. U.S. Sentencing Guidelines Manual § 2P1.1(a)(1).
The Guideline provides a four-level reduction, however, “[i]f
the defendant escaped from the non-secure custody of a community
corrections center, community treatment center, ‘halfway house,’
or similar facility.” Id. § 2P1.1(b)(3). The Guidelines’
commentary provides that “‘non-secure custody’ means custody
with no significant physical restraint.” Id. § 2P1.1 cmt. n.1.
The commentary provides as an example a “defendant walk[ing]
away from a work detail outside the security perimeter of an
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institution,” a defendant “escap[ing] from an institution with
no physical perimeter barrier,” and a defendant who “failed to
return to any institution from a pass or unescorted furlough.”
Id.
On appeal, Padgett argues that by the terms of
§ 2P1.1(b)(3), he qualifies for the reduction because Bannum
Place is a “halfway house.” In contrast, the district court
found that, because the Marshals were on hand to restrain and
transfer Padgett back to a secure facility, the reduction did
not apply. In light of the facts and circumstances of this
case, we agree with the district court. “Secure custody”
includes “custody in which a person is constrained by a secure
perimeter, in the custody of an armed guard, or otherwise
physically restrained from departing an area.” United States v.
Pratt, 568 F.3d 11, 22 n.10 (1st Cir. 2009); see also United
States v. Piccolo, 441 F.3d 1084, 1089 (9th Cir. 2006) (noting
“[w]hile an escapee who flees a secured facility or the custody
of an armed guard presents a serious risk of injury to himself
and others, the same cannot be said for an escapee who leaves a
halfway house with permission and fails to return”).
Accordingly, although Bannum Place is a non-secure facility and
halfway house, because Padgett was in the care and custody of
the Marshals — armed guards — at the time of his escape, the
reduction does not apply.
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Accordingly, we affirm the district court's judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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