RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0347p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-6520
v.
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Defendant-Appellant. -
TARY HOLCOMB,
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Appeal from the United States District Court
for the Eastern District of Kentucky at Ashland.
No. 08-00017-003—David L. Bunning, District Judge.
Argued: October 22, 2010
Decided and Filed: November 8, 2010
Before: DAUGHTREY, GILMAN, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand
Rapids, Michigan, for Appellant. James E. Arehart, ASSISTANT UNITED STATES
ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Paul L. Nelson,
FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellant.
James E. Arehart, Charles P. Wisdom, Jr., ASSISTANT UNITED STATES
ATTORNEYS, Lexington, Kentucky, for Appellee.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. Tary Holcomb pled guilty to escaping
from a federal prison camp. The district court sentenced him to 10-months’
imprisonment, to run consecutively to his undischarged time for a marijuana conviction,
followed by three years of supervised release. Holcomb now appeals, arguing that the
1
No. 08-6520 United States v. Holcomb Page 2
court miscalculated his U.S. Sentencing Guidelines (U.S.S.G.) range because it did not
grant him a seven-level downward departure pursuant to U.S.S.G. § 2P1.1(b)(2) on the
basis that (1) he escaped from a nonsecure facility, and (2) he voluntarily returned. For
the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
In July 2008, Holcomb was serving a 120-month sentence at a federal prison
satellite camp (FPC Ashland) at the Federal Correctional Institute in Ashland, Kentucky
(FCI Ashland). Both facilities are federal institutions within the Bureau of Prisons
system. FPC Ashland is surrounded by a fence that is topped with razor wire. The front
gate, however, is left open during normal business hours. There is a guard station at the
front gate that is generally manned 24 hours a day by a correctional officer. But the
officer guarding the front gate has additional administrative duties that require the officer
to periodically leave the gate unmanned. FPC Ashland inmates are not permitted to
enter the guard station after 10 p.m. unless there is an emergency.
The inmates’ housing units are behind the guard station and are within the razor-
wire fence that surrounds the camp. Prisoners at the camp are informed that they are not
allowed to leave the premises without authorization and that any departure without
preapproval constitutes an escape.
Sometime between the late evening of July 26 and the early morning of July 27,
2008, Holcomb and three other inmates walked out of FPC Ashland through the front
gate without prior authorization. They were driven away from the facility by Kysha
Crockwell, who took them to the nearby Knights Inn. Several hours later, Crockwell
drove the four inmates back to the camp. After pulling up to the camp entrance,
Crockwell saw a sheriff’s patrol car in her rear view mirror and informed the inmates of
the vehicle behind them. None of the inmates elected to exit her car. Crockwell then
drove away from the camp. The Boyd County Sheriff’s Office deputy followed and
eventually pulled Crockwell’s car over for a routine traffic stop at a gas station on Route
60 in Ashland.
No. 08-6520 United States v. Holcomb Page 3
Upon pulling the car over, the deputy noticed the occupants’ prison uniforms and
asked the men if they were inmates. The men replied in the affirmative and, at 2:05 a.m.
on July 27, 2008, FPC Ashland officials were notified that Crockwell’s car had been
stopped and that four men in prison uniforms were inside. In response, FPC Ashland
conducted an emergency inmate count, determining that the four men, including
Holcomb, were missing from the premises. FPC Ashland officials then proceeded to the
site of the traffic stop and, once they ascertained that the men were the missing inmates,
the prisoners were transported back to FCI Ashland and placed in the Special Housing
Unit.
In August 2008, a federal grand jury sitting in the Eastern District of Kentucky
at Ashland returned a two-count indictment against Holcomb and the three other
inmates. Count One (the count at issue in this case) charged Holcomb with escaping
from the custody of FCI Ashland, in violation of 18 U.S.C. § 751(a). Holcomb
originally pled not guilty to this offense but, after appearing for rearraignment, pled
guilty to escaping from the camp. He did so without a written plea agreement.
A violation of 18 U.S.C. § 751(a) is a Class D Felony punishable by a term of
imprisonment of not more than five years’ incarceration, a fine of not more than
$250,000, or both, and a period of supervised release of not more than three years. The
base offense level under U.S.S.G. § 2P1.1(a)(1) is 13. Holcomb’s offense level was
reduced by two levels because of his acceptance of responsibility pursuant to U.S.S.G.
§ 3E1.1(a), resulting in a total offense level of 11. With a criminal history category of
III, his Guidelines range was 12 to 18 months of imprisonment.
Holcomb argued that he was entitled to a seven-level reduction in his base
offense level pursuant to U.S.S.G. § 2P1.1(b)(2). Under this provision, if a “defendant
escaped from nonsecure custody and returned voluntarily within ninety-six hours,”
without committing any other offense punishable by a term of imprisonment of one year
or more, the district court may decrease the base offense level by seven levels. Id. The
district court heard testimony regarding the following two elements of U.S.S.G.
No. 08-6520 United States v. Holcomb Page 4
§ 2P1.1(b)(2): (1) whether FPC Ashland is a nonsecure facility, and (2) whether the
defendants voluntarily returned to the camp.
U.S.S.G. § 2P1.1(b)(2) requires that both of these elements be satisfied before
the district court may reduce the base offense level. Here, the court relied solely on its
conclusion that the defendants did not voluntarily return to the camp as its basis for
refusing to grant the seven-level reduction. The court therefore declined to decide
whether FPC Ashland is a nonsecure facility. Holcomb was sentenced to a 10-month
term of imprisonment (a below Guidelines sentence) to run consecutively to the term that
he was already serving for conspiracy to possess and distribute marijuana. Holcomb
now appeals his sentence.
II. ANALYSIS
A. Reasonableness review
We review a sentence imposed by the district court for reasonableness. Gall v.
United States, 552 U.S. 38, 46 (2007). “The question of whether a sentence is
reasonable is determined using the abuse-of-discretion standard of review.” United
States v. Webb, 616 F.3d 605, 609 (6th Cir. 2010) (citation omitted). “Review for
reasonableness has both procedural and substantive components.” Id. (citation omitted).
B. Holcomb’s sentence is procedurally reasonable
When reviewing a sentence for procedural reasonableness, we look at three
factors: whether the district court “(1) properly calculated the applicable advisory
Guidelines range; (2) considered the other § 3553(a) factors as well as the parties’
arguments for a sentence outside the Guidelines range; and (3) adequately articulated its
reasoning for imposing the particular sentence chosen.” United States v. Bolds, 511 F.3d
568, 581 (6th Cir. 2007). To determine if the district court properly calculated the
applicable Guidelines range, we review the district court’s findings of fact under the
clear-error standard and its legal conclusions regarding application of the Guidelines de
novo. Id. at 579.
No. 08-6520 United States v. Holcomb Page 5
Holcomb argues that the district court miscalculated the applicable Guidelines
range as a matter of law when it denied him the seven-level downward departure under
U.S.S.G. § 2P1.1(b)(2). He asserts that FPC Ashland is a nonsecure facility to which he
returned voluntarily. Holcomb does not challenge the court’s factual findings regarding
the question of whether he voluntarily returned to the camp, but rather the application
of the “returned voluntarily” standard to those facts.
Because Holcomb was already a confined inmate as a result of his participation
in a marijuana conspiracy, his base offense level under U.S.S.G. § 2P1.1(a)(1) is level
13. The district court denied Holcomb the seven-level reduction under U.S.S.G.
§ 2P1.1(b)(2) based on its finding that he did not voluntarily return to FPC Ashland.
Since this finding alone is sufficient to deny Holcomb the reduction, the court did not
make any findings regarding whether the camp is a nonsecure facility.
We review de novo the district court’s conclusion that Holcomb did not
voluntarily return to the camp, as well as its denial of the seven-level reduction under
U.S.S.G. § 2P1.1(b)(2). See Bolds, 511 F.3d at 579. The question of what constitutes
a voluntary return for purposes of U.S.S.G. § 2P1.1(b)(2) is a matter of first impression
in this circuit. Application Note 2 in U.S.S.G. § 2P1.1 states that “‘returned voluntarily’
includes voluntarily returning to the institution or turning one’s self in to a law
enforcement authority as an escapee (not in connection with an arrest or other charges).”
U.S.S.G. § 2P1.1 cmt. n.2.
Several circuits have discussed Application Note 2. Among them is the Ninth
Circuit, where it held in United States v. Blandin, 435 F.3d 1191, 1195 (9th Cir. 2006),
that “regardless of whether [the defendant] had formed the subjective intent voluntarily
to surrender, his return to custody cannot be considered voluntary under § 2P1.1.(b)(2)
because his willingness to cooperate arose in connection with his arrest for trespassing.”
Similarly, in United States v. King, 338 F.3d 794, 799 (7th Cir. 2003), the Seventh
Circuit held that an inmate’s willingness to cooperate with a correctional officer only
after learning that he could return with the officer or be chased down by the marshals
was not the type of voluntary return contemplated by U.S.S.G. § 2P1.1(b)(2). And the
No. 08-6520 United States v. Holcomb Page 6
Eighth Circuit held, in United States v. Pynes, 5 F.3d 1139, 1140–41 (8th Cir. 1993), that
even though the defendant had already arranged for a ride to turn himself in, his return
was not voluntary because he “surrendered only when he saw deputy marshals crossing
the street to find and arrest him.”
Like the defendants in Blandin, King, and Pynes, Holcomb surrendered only after
he was faced with the imminent prospect of being arrested. He and his codefendants left
FPC Ashland without permission. After visiting the Knights Inn, Crockwell drove all
four men back to the camp, pulled up to the entrance of FPC Ashland, and stopped the
car. But none of the defendants exited the car after Crockwell informed them that a
sheriff’s deputy was in the vehicle behind them. The defendants were transported back
to FCI Ashland by camp officials only after the deputy approached the car at the gas
station and realized that the four men inside were dressed in prison uniforms.
Holcomb argues that the circumstances surrounding his escape are sufficient to
find that he voluntarily returned to FPC Ashland within the meaning of U.S.S.G.
§ 2P1.1(b)(2). His arguments fail for several reasons. First, Holcomb did not return to
the camp when he had the opportunity to do so; i.e., when Crockwell drove him and the
other three inmates back from the Knights Inn. He could have gotten out of the car at
that point and turned himself in. Holcomb’s subjective intent to return prior to
Crockwell driving away is not sufficient to support a finding that in fact he voluntarily
returned. See Blandin, 435 F.3d 1194–95. Further, Holcomb admitted his status as an
FPC Ashland inmate only after the sheriff’s deputy had pulled over the car in which he
was riding. We join the other circuits that have addressed this issue and find that a
willingness to cooperate arising in connection with the possibility of imminent arrest is
not the type of voluntary behavior that U.S.S.G. § 2P1.1(b)(2)’s seven-level downward
departure is intended to reward. See id. at 1194; King, 338 F.3d at 799; Pynes, 5 F.3d
at 1140–41. Consequently, Holcomb did not voluntarily return to FPC Ashland within
the meaning of U.S.S.G. § 2P1.1(b)(2), and he is therefore not entitled to a seven-level
downward departure in his offense level. Because the question of whether Holcomb
No. 08-6520 United States v. Holcomb Page 7
voluntarily returned to FPC Ashland is dispositive, we have no need to determine
whether FPC Ashland is a nonsecure facility.
We must next determine whether the district court properly calculated the
applicable Guidelines range. Because Holcomb is not entitled to the seven-level
reduction under U.S.S.G. § 2P1.1(b)(2), his base offense level is 13. The court correctly
granted him a two-level reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1(a), which resulted in a base offense level of 11. Based on prior criminal-history
points and the points added for the escape, Holcomb has a criminal history category of
III. The Guidelines range for a total offense level of 11, combined with a criminal
history category of III, is 12 to 18 months of imprisonment, as correctly determined by
the district court.
We must also decide whether the district court properly considered the relevant
§ 3553(a) factors in determining Holcomb’s sentence. During sentencing, the court
addressed the § 3553(a) factors collectively for all four defendants because the nature
and circumstances of the crime were the same for each. In considering the need for the
sentence imposed, the court explained that because the escape in this case was factually
different from more serious escapes, it would impose a below-Guidelines sentence of 10
months’ imprisonment.
The district court also heard arguments from both sides as to whether the
sentence should be served consecutively or concurrently. U.S.S.G. § 5G1.3(a)
recommends that a sentence for escape be served consecutive to any undischarged term
of incarceration because the offense was committed while the defendant was already
serving a term of imprisonment. The court followed this recommendation, reasoning
that granting a concurrent sentence would be inappropriate in this case because it would
send the wrong message to others who are considering escaping from prison. It also
addressed the need for avoiding unwarranted sentencing disparities by sentencing
Holcomb and two of the other escapees with similar criminal histories to the identical,
below-Guidelines, 10-month term of imprisonment.
No. 08-6520 United States v. Holcomb Page 8
We must finally determine whether the district court sufficiently articulated its
reasons for the sentence chosen. As noted above, the court discussed with particularity
the relevant § 3553(a) factors and why it found that Holcomb had not voluntarily
returned to FPC Ashland. The court also heard and addressed arguments from both sides
on what they deemed to be the correct sentence. Further, the court thoroughly explained
why it decided to impose a below-Guidelines sentence. The court’s decision was well-
reasoned and sufficiently detailed to easily pass muster as procedurally reasonable. See
Rita v. United States, 551 U.S. 338, 356 (2007) (stating that “[t]he appropriateness of
brevity or length, conciseness or detail . . . depends upon circumstances”).
C. Holcomb’s sentence is substantively reasonable
Finally, we turn to the substantive reasonableness of Holcomb’s sentence. “A
properly calculated advisory guidelines range represents a starting point for substantive-
reasonableness review because it is one of the § 3553(a) factors and because the
guidelines purport to take into consideration most, if not all, of the other § 3553(a)
factors.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). A sentence will
be found substantively unreasonable “when the district court selects a sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider relevant
sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.”
United States v. Webb, 616 F.3d 605, 610 (6th Cir. 2010) (citation and internal quotation
marks omitted).
Here, the district court properly calculated the applicable Guidelines range and
discussed the relevant § 3553(a) factors, giving each appropriate weight. The court
evaluated the nature and circumstances of the offense and the need for the sentence
imposed, determining that a below-Guidelines sentence would best differentiate between
this case and other more serious escapes. It also considered the deterrent effects of the
sentence, concluding that a consecutive sentence would best deter future escapes. In
addition, three of the four defendants (those with similar criminal histories) were given
the same below-Guidelines sentence to avoid any unwarranted sentencing disparities.
Holcomb’s sentence is therefore substantively reasonable.
No. 08-6520 United States v. Holcomb Page 9
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district
court.