12-4471-cr
United States v. Dean George Birdsall

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
16th day of October, two thousand and thirteen.

Present:
            PIERRE N. LEVAL,
            PETER W. HALL,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges.
____________________________________________________

UNITED STATES OF AMERICA,

                          Appellee,

                 v.                                                         No. 12-4471-cr

DEAN GEORGE BIRDSALL,

                  Defendant–Appellant.
____________________________________________________

FOR APPELLANT:                    Mark D. Hosken, Assistant Federal Public Defender, Rochester,
                                  NY (Jay S. Ovsiovitch, Rochester, NY, on the brief).

FOR APPELLEE:           Monica J. Richards, Assistant United States Attorney, for William
                        J. Hochul, Jr., United States Attorney for the Western District of
                        New York, Buffalo, New York.
____________________________________________________
       Appeal from a judgment of the United States District Court for the Western District of

New York (Siragusa, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant–Appellant Dean George Birdsall appeals from a judgment of conviction

entered October 31, 2012, after he pled guilty to one count of failing to register in violation of

the Sexual Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a). On

appeal, Birdsall raises the single issue of whether the district court engaged in impermissible

double-counting when it assessed criminal history points both under U.S.S.G. § 4A1.1(a) for a

prior conviction resulting in a sentence of over one year and one month and under § 4A1.1(d) for

the fact that the instant offense was committed while he was on escape status. We assume the

parties’ familiarity with the facts and procedural history of the case.

       Birdsall, who had been convicted and sentenced to state prison in 1994, was released in

2007. As a condition of release, he was to live in a half-way home. He did not report and

instead fled to New York. He was declared delinquent and later indicted and convicted in Ohio

for his crime of escape. After escaping, he took up residence in New York and did not register

there as a sex offender as required by SORNA.

       On imposing this sentence for the crime of failing to register, the district court, pursuant

to § 2A3.5(a)(1), found that Birdsall’s base offense level was 16. Because Birdsall pled guilty,

the court reduced the offense level by three levels pursuant to § 3E1.1, which yielded a total

offense level of 13.

       In computing Birdsall’s criminal history category, the district court assessed three points

under § 4A1.1(a) for a “prior sentence of imprisonment exceeding one year and one month” (on



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his escape conviction) and added two points pursuant to § 4A1.1(d) because Birdsall committed

the instant offense (of failing to register) while under a criminal justice sentence—in that he was

on escape status. These calculations placed Birdsall in Criminal History Category IV. At

Criminal History Category IV with an offense level of 13, Birdsall was subject to an advisory

incarceration range of twenty-four to thirty months. The district court imposed a sentence of

twenty-four months, at the bottom of the range. Birdsall argues that his sentence was

procedurally unreasonable because the district court engaged in impermissible double counting

by applying § 4A1.1(d) to the instant offense to assess two additional points for being on escape

status when the Guidelines had already added three points for the escape conviction under

§ 4A1.1(a). We are not persuaded.

       First, we see no double counting. Section 4A1.1(a) instructs the court to add three points

for each prior sentence exceeding one year and one month, whereas § 4A1.1(d) instructs the

court to “[a]dd 2 points if the defendant committed the instant offense while under any criminal

justice sentence, including probation, parole, supervised release, imprisonment, work release, or

escape status.” The two additions to his criminal history score were because of different

occurrences at different times and places. One addition of points was for his crime of escape,

which he committed on or about Mach 10, 2008 in Ohio by failing to report to the Ohio halfway

house. The second addition of points was for being under a criminal sentence when he

committed another crime on or about August 26, 2010 in Monroe County, New York, of failing

to register under SORNA.

       Second, even if this were deemed double counting, “it is within the Sentencing

Commission’s and Congress’s prerogative to adopt double counting if it chooses.” United States

v. Aska, 

, 78 (2d Cir. 2002) (citations omitted). There can be no doubt that the



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Commission intended both adjustments to apply in the circumstances of this case. The two

adjustments serve different purposes. The first was intended to punish recidivists more heavily.

The second, which by definition could be imposed only on recidivists, was intended to impose an

extra heavy punishment for those who exhibit still further contempt for the law by committing

new crimes during the very time they are under sentence.

       We have considered Birdsall’s remaining arguments and find them to be without merit.

For these reasons, we AFFIRM the October 31, 2012 judgment of conviction.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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