Filed: May 11, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4945 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEAN EDWARD WHITMAN, JR., Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:10-cr-00051-IMK-JSK-1) Submitted: April 21, 2011 Decided: May 11, 2011 Before MOTZ, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Brian J. Kornbrath,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4945 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEAN EDWARD WHITMAN, JR., Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:10-cr-00051-IMK-JSK-1) Submitted: April 21, 2011 Decided: May 11, 2011 Before MOTZ, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Brian J. Kornbrath, ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4945
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEAN EDWARD WHITMAN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:10-cr-00051-IMK-JSK-1)
Submitted: April 21, 2011 Decided: May 11, 2011
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, Kristen Leddy, Research and Writing Specialist,
Martinsburg, West Virginia, for Appellant. William J.
Ihlenfeld, II, United States Attorney, Brandon S. Flower,
Assistant United States Attorney, Clarksburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dean Edward Whitman, Jr., pled guilty to escape, in
violation of 18 U.S.C. § 751 (2006), and was sentenced to a term
of twenty-four months’ imprisonment. Whitman appeals his
sentence, contending that the district court erred in denying
him a four-level reduction under U.S. Sentencing Guidelines
Manual (USSG) § 2P1.1(b)(3) (2009), for escape from the non-
secure custody of a community corrections center or similar
facility. We affirm.
On April 15, 2010, while Whitman was confined at the
Federal Correctional Institution in Morgantown, West Virginia
(FCI-Morgantown), he was taken to Ruby Memorial Hospital for an
unescorted medical appointment. After he was dropped off,
instead of entering the hospital, Whitman walked across the
street to the parking lot where his girlfriend was parked.
Whitman got into her car and they drove away. Whitman was
located with his girlfriend at a motel in Ohio that evening.
When he was sentenced, Whitman sought a four-level
reduction under USSG § 2P1.1(b)(3), which applies “[i]f the
defendant escaped from the non-secure custody of a community
corrections center, community treatment center, ‘half-way
house,’ or similar facility, and subsection (b)(2) is not
available.” In Whitman’s case, subsection (b)(2) was not
available; it provides for a four-level reduction if the
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defendant escaped from non-secure custody and returned
voluntarily within ninety-six hours. Application Note 1 to
§ 2P1.1 defines “non-secure custody” as “custody with no
significant physical restraint” and gives as examples of escape
from non-secure custody “walk[ing] away from a work detail
outside the security perimeter of an institution; . . .
fail[ure] to return to any institution from a pass or unescorted
furlough; or . . . escap[ing] from an institution with no
physical perimeter barrier[.]” Whitman argued that he had
escaped from the hospital, and that it was a non-secure facility
similar to a community treatment center. However, the district
court found that Whitman was not eligible for the reduction
because he had escaped from FCI-Morgantown, a secure facility.
Whether § 2P1.1(b)(3) applies in Whitman’s case is an
issue that requires interpretation of a Guideline. The district
court’s decision is therefore reviewed de novo. United States
v. Sarno, 24 F.3d 618, 623 (4th Cir. 1994). In Sarno, we held
that the reduction under subsection (b)(3) applies if (1) the
defendant escaped from a non-secure facility, but only when (2)
the non-secure facility is similar to a community corrections
center or other facility listed in subsection (b)(3).
Id. at
623-24.
Initially, it may be helpful to note that the term
“non-secure custody,” as it is used in § 2P1.1, may mean either
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a temporary state, as when an inmate being held in a secure
facility is on a work detail or unsupervised furlough, or a
permanent state resulting from the inmate’s assignment to a non-
secure facility. A defendant seeking a reduction under
subsection (b)(3) must “show not only that he escaped from non-
secure custody, but also that he was confined in a facility
expressly specified in subsection (b)(3) or in one similar
thereto.” United States v. Helton, 127 F.3d 819, 821 (9th Cir.
1997) (holding that defendant who walked away from work detail
outside security perimeter of federal prison camp was not
entitled to reduction under subsection (b)(3) because he
remained in custody of prison camp, a secure facility); United
States v. Tapia,
981 F.2d 1194, 1197-98 (11th Cir. 1993) (same;
treating escape from work detail outside security perimeter of
prison camp as escape from prison camp).
Whitman argues that he escaped from a non-secure
facility because he escaped from the hospital. He further
argues that he met the second requirement because the hospital
was a facility similar to a community corrections center and the
other facilities enumerated in subsection (b)(3). Whitman’s
first assertion is incorrect. As the district court found,
Whitman was always in the custody of FCI-Morgantown, which was
held in Sarno to be a secure facility. Sarno, 24 F.3d at 624.
He was never in the custody of the hospital. Despite Whitman’s
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persistent argument that he was furloughed to Ruby Memorial
Hospital, he never produced evidence of a change in his status
as an inmate of FCI-Morgantown, nor could he.
Whitman relies on Application Note 1, arguing that the
reduction applies if a defendant fails to return to any
institution as long as he was on an unescorted furlough from
that institution at the time of the escape. However,
Application Note 1 merely defines the term “non-secure custody”
as it is used in both subsection (b)(2) and (b)(3). See Helton,
127 F.3d at 821 (“The Note has no effect upon the second
requirement of section 2P1.1(b)(3) that an escape from non-
secure custody must also be from one of the enumerated or
similar facilities specified in that subsection.”). Because
Whitman was in custody in a secure facility, the fact that he
walked away while on an unescorted furlough from that facility
does not make him eligible for the reduction under subsection
(b)(3). In his reply brief, Whitman complains that under this
“strained interpretation, no defendant designated to a secure
Bureau of Prisons facility could ever get the benefit of the
subsection (b)(3) reduction, even if later furloughed
elsewhere.” He is right, and this result is a consequence of
the plain meaning of subsection (b)(3), as Helton and Tapia
held.
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We therefore affirm the sentence imposed by the
district court. 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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