IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-7236
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS LOWELL SHAW,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
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(November 25, 1992)
Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Thomas Lowell Shaw (Shaw) was convicted,
on his plea of guilty, of unlawful escape from custody in the
Federal Prison Camp at Three Rivers, Texas, on May 19, 1991,
contrary to 18 U.S.C. § 751(a). He was sentenced to twenty-six
months' imprisonment, followed by two years' supervised release,
and a fifty dollar special assessment. Shaw now brings this appeal
challenging only his sentence. Finding no reversible error, we
affirm.
Facts and Proceedings Below
In August 1990, Shaw was convicted on two counts of an
indictment charging possession of a firearm by a convicted felon
contrary to 18 U.S.C. § 922(g)(1) and falsely representing a number
to be a social security account number contrary to 42 U.S.C. §
408(g)(2). On November 20, 1990, he was sentenced for these
offenses to consecutive terms of imprisonment of five months
(firearms count) and three years (social security number count).
To commence service of this sentence as directed by the Attorney
General, Shaw reported to the Federal Prison Camp at Three Rivers,
Texas, on January 14, 1991. He continued serving his sentence at
the Federal Prison Camp at Three Rivers until May 19, 1991, when he
was discovered missing. He had not been given permission to be
absent from the camp. On October 18, 1991, Shaw was apprehended by
United States Marshals near Houston. He was subsequently indicted
for, and pleaded guilty to, escape from custody contrary to 18
U.S.C. § 751(a).
At his initial sentencing hearing on February 18, 1992, Shaw
objected for the first time to the pre-sentence report for not
assessing a four-level downward reduction under U.S.S.G. §
2P1.1(b)(3), for escape from the non-secure custody of a correction
center, community center, "halfway house," or similar facility.1
1
This section provides in pertinent part that "[i]f the
defendant escaped from the non-secure custody of a community
corrections center, community treatment center, 'halfway house,'
or similar facility . . . decrease the offense level under (a)(1)
by 4 levels . . . ." U.S.S.G. § 2P1.1(b)(3). Section
2P1.1(a)(1) requires a base offense level of 13 for escape if
"custody or confinement is by virtue of . . . conviction of any
2
He argued that the only requirement under section 2P1.1(b)(3) was
that his incarceration was in "non-secure custody," as demonstrated
by the fact that he had effected his escape from the camp without
having to cross a fence or any other type of barrier. The district
court adjourned the hearing in order to give the government the
opportunity to produce witnesses who could describe the
characteristics of the Three Rivers camp.
On March 9 and March 23, 1992, the district court conducted
second and third sentencing hearings at which it received testimony
concerning the Three Rivers correctional institution. The
testimony described the institution as being eight miles outside of
the city of Three Rivers, and as being composed of a medium and a
minimum security facility. The minimum security facility was
referred to as the camp. The Three Rivers camp is classified as a
satellite camp, as opposed to an independent camp, because it is
physically located within the same compound as the prison facility.
The medium security facility is surrounded by two perimeter fences,
and although no immediate fence surrounds the camp, a barbed-wire
fence does encircle the 37-acre perimeter of the entire
institution.
The only two entrances to the property are driveways; to leave
the property by any other means, one would have to cross the
barbed-wire fence. This fence was not erected or maintained to
detain prisoners but rather as a boundary marker and to keep
livestock out. Every new inmate is given verbal and written
offense." U.S.S.G. § 2P1.1(a)(1).
3
instructions on what constitutes "out of bounds" at the camp, and
is warned that violations of the boundaries result in incident
reports and corresponding sanctions.
The district court also received testimony concerning the
attributes of institutions described in section 2P1.1(b)(3). These
institutions, such as a community center or a half-way house, allow
an inmate at "mid-point" to readjust to the community setting, and
they represent the lowest custody level within the system.
Generally, an individual moves from a prison camp to one of these
institutions as he draws nearer to his release date, although an
individual could be placed in such a facility from the outset.
Most inmates are sent to such a facility within the last six months
of their incarceration, while an inmate could be imprisoned up to
eight years in a prison camp.
A major difference between the community center type
facilities and a prison camp is that the convicted individual is
actually confined in the camp. At the community center, the
individual returns to the center each evening, after participating
all day as a member of the community work force. Members of the
community centers may come and go as they please; inmates of the
Three Rivers prison camp must have permission before they may leave
the camp. Furthermore, at the Three Rivers camp, the prisoners are
counted at least five times a day, six on weekends. Furthermore,
on camp regular work detail or in the camp's community custody
program where inmates work in the community, the inmates are
visually accounted for at least every two hours. Camp inmates are
4
never allowed unauthorized visitors. Visiting hours are strictly
enforced with only a certain number of visits allowed per month.
In these ways, the prison camp separates the inmate from the
community and restricts his contact with people on the "outside."
By contrast, at community centers individuals merely sign in and
out. The center residents maintain contact with the community
because the principal purpose is reintegration. Extensive
community contact is encouraged since not only must the individual
readjust to society, but he must also pay for his medical care and
subsistence while staying at the center, as well as turn over a
portion of his gross earnings to the facility to help offset its
expenses. Community centers are generally not operated by the
federal government. The federal governmentSQthe Bureau of
PrisonsSQoperates the prison camp and bears the full cost for
incarceration there.
The district court ruled that in order to qualify under
section 2P1.1(b)(3), the defendant must not only show that he
escaped from a non-secure facility but that the facility was
similar to the institutions described in section 2P1.1(b)(3). The
court found that the Federal Prison Camp at Three Rivers was not a
facility similar to those listed in section 2P1.1(b)(3). The
district court accordingly denied Shaw's request for a downward
adjustment in his offense level under section 2P1.1(b)(3). The
court then calculated Shaw's offense level as eleven,2 and his
2
Shaw's base offense level was calculated as thirteen under
section 2P1.1(a)(1); the offense level was reduced to eleven by a
two-level reduction for acceptance of responsibility. Section
5
criminal history category as five, resulting in a guideline range
of twenty-four to thirty months. The district court sentenced Shaw
to twenty-six months' incarceration. Shaw now appeals the district
court's denial of a 2P1.1(b)(3) downward adjustment to his offense
level.
Discussion
Shaw contends that the district court in determining whether
the camp was similar to the facilities mentioned in section
2P1.1(b)(3) erred by considering factors other than whether the
camp was similar in that its custody of Shaw was non-secure. Shaw
cites the application notes to guideline 2P1.1, which define non-
secure custody as "custody with no significant physical restraint."
U.S.S.G. § 2P1.1, comment. (n.1). Shaw argues that this definition
should be the only similarity considered. Under this framework,
Shaw argues that he squarely fits within the application note
definition because it gives as an example of "non-secure custody"
the situation "where a defendant walked away from a work detail
outside the security perimeter of an institution." Id. Shaw
argues that escape by walking away from a federal prison camp
mirrors this example.3
3E1.1.
3
Shaw also seems to argue that federal prison camps might be
similar to community centers in other aspects besides "non-secure
custody." However, at sentencing he in essence admitted that a
prison camp was not similar to a community center and that the
institutions had different purposes. The district court
acknowledged his concession.
The district court's determination whether the facilities
were similar was a factual determination because it required the
court to draw conclusions from the evidence presented at the
6
We agree that one element for awarding an adjustment under
section 2P1.1(b)(3) is a showing that the defendant escaped from
"non-secure custody."4 However, this is not the only element.
Shaw cites one case that squarely addresses this issue and
concludes that the sole requirement for section 2P1.1(b)(3) is that
the facility's custody is "non-secure." United States v. Agudelo,
768 F.Supp. 339 (N.D. Fla. 1991). The Agudelo court determined
that a defendant who had walked away from Eglin Federal Prison Camp
at Eglin Air Force Base, Florida, had done so from a "non-secure
custody" facility. Id. Based only on this finding, the court
granted a section 2P1.1(b)(3) reduction. The Agudelo court does
not consider if this section might require additional findings and
does not explain why "non-secure custody" is the only element to be
considered. We decline to follow the Agudelo court's analysis
because it simply ignores the rest of section 2P1.1(b)(3), which is
concerned with "the non-secure custody of a community corrections
center, community treatment center, 'halfway house,' or similar
sentencing hearing. United States v. Mejia-Orosco, 867 F.2d 216,
220 (5th Cir. 1989) (holding that a district court's finding was
factual because it required the court to "draw an inference from
a variety of data"). Since Shaw did not challenge the district
court's factual determination at the sentencing hearings, his
argument is waived. United States v. Smallwood, 920 F.2d 1231,
1238 (5th Cir. 1991) (holding that "a fact matter must be the
subject of an objection at the time of sentencing if it is to be
an issue on appeal"). In any event, the evidence amply
supportsSQand indeed compelsSQthe district court's finding.
4
We observe that section 2P1.1(b)(2) provides (with a limited
exception) for reduction of base offense level "[i]f the
defendant escaped from non-secure custody and returned
voluntarily within 96 hours." Shaw did not return voluntarily or
within 96 hours, and does not claim entitlement to a section
2P1.1(b)(2) reduction.
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facility."5
As pointed out in United States v. Brownlee, 970 F.2d 764
(10th Cir. 1992), Shaw's argument must be rejected because it,
"ignores the plain language of U.S.S.G. §2P1.1(b) which
dictates that two circumstances must be present before an
escapee receives the four-level reduction: first, the
escape must be from non-secure custody, and, second, the
non-secure custody must be provided by a particular type
of facility, i.e., a community corrections center,
community treatment center, halfway house or similar
facility." Id. at 765.
To give the language of section 2P1.1(b)(3) any other
interpretation "would render the limiting modifiers of this
subsection meaningless." United States v. McGann, 960 F.2d 846,
847 (9th Cir. 1992). The McGann court compared section 2P1.1(b)(3)
with section 2P1.1(b)(2), which does not have any modifying
language to the words "non-secure custody."6 As explained in
McGann, "When the Guidelines apply broadly to cover escapes from
all types of non-secure custody, the language of the provision
states so explicitly." Id. We agree. As noted by the Brownlee
court, "prison camps were recognized institutions in the
corrections system long before the enactment of the sentencing
guidelines and, had the Sentencing Commission intended that prison
5
One other district court also held that a federal prison
camp was a non-secure facility and that this factor would allow a
section 2P1.1(b)(3) sentence reduction. United States v. Crosby,
762 F. Supp. 658 (W.D. Pa. 1991). However, that case was
concerned with whether section 2P1.1(b)(3) could be applied
retroactively, and, as Shaw admits in his brief, the issue sub
judice was not raised by any party but was merely assumed. Id.
at 659.
6
See note 4 supra.
8
camps be within the purview of §2P1.1(b)(3), it could have included
them specifically." Brownlee, 970 F.2d at 765. We hold that in
awarding a downward adjustment under section 2P1.1(b)(3), the
district court must find not only that the defendant escaped from
non-secure custody, but also that the facility escaped from either
is, or is a facility similar to, a community corrections center,
community treatment center, or halfway house.
The evidence from the sentencing hearings amply supports
SQindeed compelsSQthe district court's finding that a federal prison
camp is not a facility similar to a community corrections center,
community treatment center, or halfway house. As noted in
Brownlee, "The facilities listed in [2P1.1(b)(3)] are all
integrated into the community. A prison camp, even though there
may be no perimeter barriers and residents may have some freedom to
come and go, is an environment separated from the community." Id.
We would also add that the federal prison camp's purpose is to
incarcerate the inmate while the community center's purpose is to
bring the inmate back into society. The district court did not err
in refusing to reduce Shaw's sentence under section 2P1.1(b)(3).
Although Shaw may have escaped from non-secure custody, he did not
escape from a facility similar to a community corrections center,
community treatment center, or halfway house.
Conclusion
Shaw has failed to demonstrate any error in his sentence, and
it is accordingly
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AFFIRMED.
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U.S. v. Shaw
Combined Opinion