US v. Dean Whitman, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00051-IMK-JSK-1 Copies to all parties and the district court/agency. [998587345].. [10-4945]

Appeal: 10-4945

Document: 26

Date Filed: 05/11/2011

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 05/11/2011

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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 nonsecure

custody

facility.

of

a

community

corrections

center

or

similar

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
instead
street

medical

of

appointment.

entering

to

the

the

parking

After

hospital,

lot

where

he

Whitman
his

was

dropped

walked

girlfriend

across
was

Whitman got into her car and they drove away.

off,
the

parked.

Whitman was

located with his girlfriend at a motel in Ohio that evening.
When
reduction

he

under

was
USSG

sentenced,

Whitman

§ 2P1.1(b)(3),

sought

which

a

applies

four-level
“[i]f

the

defendant escaped from the non-secure custody of a community
corrections
house,’

or

center,
similar

available.”
available;

In
it

community
facility,

Whitman’s

provides

for

treatment

center,

and

subsection

case,

subsection

a
2

four-level

‘half-way

(b)(2)

is

not

(b)(2)

was

not

reduction

if

the

Appeal: 10-4945

Document: 26

defendant

escaped

voluntarily
§ 2P1.1

Date Filed: 05/11/2011

from

within

defines

Page: 3 of 6

non-secure

ninety-six

“non-secure

custody

and

hours.

Application

custody”

as

returned
Note

to

with

“custody

1

no

significant physical restraint” and gives as examples of escape
from

non-secure

outside

the

custody

security

“walk[ing]

away

perimeter

of

from

an

a

work

detail

institution; . . .

fail[ure] to return to any institution from a pass or unescorted
furlough;
physical

or . . .

escap[ing]

perimeter

from

barrier[.]”

an

Whitman

institution
argued

with

that

no

he

had

escaped from the hospital, and that it was a non-secure facility
similar to a community treatment center.
court

found

that

Whitman

was

not

However, the district

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.
court’s decision is therefore reviewed de novo.
v. Sarno, 24 F.3d 618, 623 (4th Cir. 1994).

The district
United States

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
3

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Date Filed: 05/11/2011

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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 nonsecure

facility.

A

defendant

seeking

a

reduction

under

subsection (b)(3) must “show not only that he escaped from nonsecure 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
entitled

security
to

perimeter

reduction

of

federal

under

prison

subsection

camp

(b)(3)

was

because

not
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
facility

argues

because

he

that

escaped

he
from

escaped
the

from

a

hospital.

non-secure
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

first

assertion

enumerated
is

in

incorrect.

subsection
As

the

(b)(3).

district

Whitman’s

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.
4

Despite Whitman’s

Appeal: 10-4945

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persistent

Date Filed: 05/11/2011

argument

that

he

was

Page: 5 of 6

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

the

F.3d

at

requirement
secure
similar

821
of

custody

(“The

section
must

facilities

Note

has

no

2P1.1(b)(3)

also

be

specified

from
in

effect

that

an

one

that

of

upon
escape

the

second

from

non-

enumerated

subsection.”).

or

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
elsewhere.”
the

plain

(b)(3)

reduction,

even

if

later

furloughed

He is right, and this result is a consequence of
meaning

of

subsection

held.

5

(b)(3),

as

Helton

and

Tapia

Appeal: 10-4945

Document: 26

We
district
facts

therefore

court.

and

materials

Date Filed: 05/11/2011

legal
before

We

affirm

dispense

the
with

Page: 6 of 6

sentence
oral

argument

contentions

are

adequately

the

and

argument

court

imposed

by

the

because

the

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

6