United States v. Radziercz

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 93-8043

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOHN DAVID RADZIERCZ,

Defendant-Appellant.

Appeal from the United States District Court
For the Western District of Texas
(November 12, 1993)

Before SNEED*, REYNALDO G. GARZA, and JOLLY, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

This case turns on the construction of section 4A1.2(e)(1) of

the Federal Sentencing Guidelines. Defendant-appellant John David

Radziercz escaped from prison while serving an eight year sentence

for bank robbery. Upon recapture eighteen years later, appellant

was in possession of three firearms. During sentencing for this

offense, the prior bank robbery conviction was included in

determining the base offense level and the criminal history index.

*
Senior Circuit Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Appellant's primary assignment of error on appeal is that the prior

conviction is stale and cannot be considered by the court in

sentencing according to the Guidelines. We find no error and

affirm the district court's application of the Guidelines.

I. Background

On October 8, 1974, John David Radziercz escaped from prison

where he was serving an eight year sentence for bank robbery. When

he was recaptured eighteen years later, a search of his residence

produced three weapons inside a gun rack: a Sturm, Ruger Police

Service Six .38 caliber revolver, a Lakefield .22 caliber rifle,

and a Baikal model IJ-18 12 gauge shotgun. On October 8, 1992,

Radziercz was charged with illegally possessing a firearm after

having been previously convicted of a felony in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). The case was resolved pursuant

to a plea bargain agreement and there were no disputed facts at

sentencing.1 The district court applied the Sentencing Guidelines

because the offense occurred after November 1, 1987. See 28 U.S.C.

§ 994(a); United States Sentencing Commission, Guidelines Manual,

(Nov. 1993) [hereinafter "U.S.S.G."].

A probation officer prepared the Pre-Sentence Investigation

Report (PSI) prior to sentencing. In that report, the officer

counted the 1973 bank robbery conviction against Radziercz for the

purposes of establishing the base offense level and the criminal

1
Mr. Radziercz plead guilty in exchange for the Government
dropping the charge for the escape. The Government also agreed
that the weapons he possessed were for a lawful purpose, thereby
lessening the severity of the offense.

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history category. The district court received the probation

officer's sentence calculations indicating a range of 33 to 41

months imprisonment based on an offense level of 18 and a criminal

history category of III. Pursuant to Radziercz's motion, the

district court departed from the Guidelines, and imposed a sentence

of 24 months imprisonment to run consecutive to his bank robbery

sentence. Defendant timely appealed his sentence.

II. Discussion

Appellant Radziercz's primary challenge on appeal is that the

district court erroneously included his prior felony conviction for

bank robbery in determining his offense level and criminal history

category. He contests two aspects of his sentence on the same

basis: because the bank robbery conviction was time-barred under

U.S.S.G. § 4A1.2(e)(1), the district court (1) incorrectly

calculated his base offense level pursuant to section

2K2.1(a)(4)(A),2 and (2) erroneously determined the criminal

history index by assigning three criminal history points instead of

two pursuant to 4A1.1(a).3 He relies on U.S.S.G. § 4A1.2(e)(1)

which imposes a time limit on sentences of imprisonment that may be

included in this calculation, providing as follows:

2
U.S.S.G. § 2K2.1(a)(4)(A) provides a base offense level
of 20 where the defendant had "one prior felony conviction of
either a crime of violence or a controlled substance offense; . .
. ." Commentary, Application Note 5 of section 2K2.1 requires
that we "count any such prior conviction that receives any points
under section 4A1.1 (Criminal History Category)."
3
U.S.S.G. § 4A1.1(a) directs the court to "[a]dd 3 points
for each prior sentence of imprisonment exceeding one year and
one month."

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 Any prior sentence of imprisonment exceeding one year and
one month that was imposed within fifteen years of the
defendant's commencement of the instant offense is
counted. Also count any prior sentence of imprisonment
exceeding one year and one month, whenever imposed, that
resulted in the defendant being incarcerated during any
part of such fifteen-year period.4

Radziercz contends that the second sentence of 4A1.2(e)(1)

authorizes the consideration of the prior bank robbery conviction

only if he were actually incarcerated within the fifteen-year

period prior to the instant offense. Since appellant escaped, he

was not actually incarcerated during such fifteen-year period.

Appellant argues that since he was neither incarcerated for the

prior offense, nor was the prior sentence imposed for that offense

within the fifteen-year period, the district court erred in

counting that sentence against him in computing both the criminal

history index and the base offense level.

This case presents a very concise legal question about the

effect of an escape on the meaning of Sentencing Guideline section

4A1.2(e)(1). This Court must decide whether a defendant is

considered to be incarcerated for purposes of the Sentencing

Guidelines once he has escaped from prison.

Under the Sentencing Reform Act of 1984, as amended 28 U.S.C.

§§ 991-998, the United States Sentencing Commission has promulgated

Guidelines that establish sentencing ranges for different

4
Since both parties agree that the sentence of
imprisonment was not imposed within fifteen years of the
defendant's commencement of the instant offense, the sole issue
for our consideration is whether the second sentence of
4A1.2(e)(1) authorized the trial court to count the prior
conviction.

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categories of federal offenses and defendants. Williams v. United

States, ___U.S.___, ___, 112 S.Ct 1112, 1117 (1992). The Act

provides for limited appellate review of the sentences, requiring

remand for resentencing if a trial court (1) imposes a sentence in

violation of law or as a result of an incorrect application of the

Guidelines, or (2) unreasonably departs from the applicable

guideline range. Id.

A trial court's legal interpretation of sentencing guidelines

are reviewed de novo. United States v. Lara-Velasquez, 919 F.2d

946, 953 (5th Cir. 1990); United States v. Suarez, 911 F.2d 1016,

1018 (5th Cir. 1990); United States v. Otero, 868 F.2d 1412, 1414

(5th Cir. 1989). Although Guideline commentary is not binding in

all instances, it is controlling when it functions to interpret a

guideline or explain how it is to be applied. Stinson v. United

States, ___ U.S. ___, ___, 113 S.Ct. 1913, 1917-18 (1993).

This issue can be easily disposed of by a simple reading of

the applicable Guideline and accompanying commentary. In defining

a "sentence of imprisonment," Application Note 2 provides that "the

defendant must have actually served a period of imprisonment on

such sentence (or, if the defendant escaped, would have served

time)." U.S.S.G. § 4A1.2, comment. (n.2). To have meaning, this

commentary must be read in the context of the Guidelines, which in

the case of section 4A1.2(e)(1) means within the applicable

fifteen-year period. Thus, the commentary should be construed to

read "[t]o qualify as a sentence of imprisonment, the defendant

must have actually served a period of imprisonment on such sentence

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during the fifteen-year period (or, if the defendant escaped, would

have served during the fifteen-year period)." Under the obvious

construction of the Guideline and its commentary, appellant's

conviction falls squarely within the definition of a "sentence of

imprisonment."

Although Radziercz was not actually incarcerated during the

fifteen years prior to the instant offense, his eight-year term of

imprisonment would have extended into the fifteen-year period had

he not escaped. Therefore, under the applicable Guideline and

commentary, Radziercz would have been in custody during the

fifteen-year period preceding commencement of the instant offense

had he not escaped from custody while serving the eight year

sentence. The commentary further states that criminal history

points are based on the sentence pronounced, not the length of time

actually served. U.S.S.G. § 4A1.2, comment. (n.2). The Guidelines

should not be misconstrued to reward a convict for aberrant

behavior.

Appellant's speculation that he most likely would have been

paroled from his eight-year sentence prior to June 18, 1977 will be

accorded no weight, since he was the one who created the situation

making this determination impossible.

III. Conclusion

The district court's treatment of the 1973 conviction as a

"prior sentence" was proper under applicable Guidelines. The

Guidelines are not subject to piecemeal interpretation to suit the

particular needs of the user. The sentence was not imposed in

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violation of law or as a result of an incorrect application of the

Guidelines. Therefore, we hold that a defendant who has escaped is

to be considered "incarcerated" for purposes of determining the

applicable time period under U.S.S.G. § 4A1.2(e)(1). The district

court properly included Radziercz's 1972 conviction as a prior

felony conviction in applying the Guideline provisions. For the

foregoing reasons, the district court's decision is

AFFIRMED.

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