United States District Court, District of Columbia
N. McFADDEN, UNITED STATES DISTRICT .JUDGE
Jameka Burnette pled guilty to a one count indictment
charging her with escaping from custody in violation of 18
U.S.C. § 751(a). The indictment alleged that Burnette
was in custody of the Bureau of Prisons “by virtue of a
conviction” for a specified felony. At the time of her
escape, Burnette was in custody following revocation of the
supervised release imposed as part of her original sentence.
sentencing memorandum, the Government explains that the Court
should apply U.S.S.G. § 2P1.1(a)(1), which mandates a
base offense level of 13 if the custody is “by virtue
of” a felony arrest or, as here, a conviction of any
offense. Burnette, however, now contends that the Court
should instead apply U.S.S.G. § 2P1.1(a)(2), which
mandates a base offense level of 8 if the custody is
“otherwise.” Because the underlying criminal
conviction was the but-for cause of her confinement, the
proper base offense level is 13.
was convicted of Attempted Assault with a Dangerous Weapon in
2014. Statement of Offense at 2, ECF No. 5. Her supervised
release for that conviction was eventually revoked, and the
U.S. Parole Commission sentenced her to 16 months'
imprisonment. Id. Burnette was allowed to
complete her sentence at the Fairview Halfway House.
Id. In July 2018, Burnette signed out of the
Fairview Halfway House for Community Connections but never
returned. Id. Three months later, she was
apprehended on an escape warrant. Id.
federal grand jury charged that Burnette “did knowingly
escape from the custody of the Bureau of Prisons, an
institutional facility in which she was lawfully confined at
the direction of the Attorney General by virtue of a
judgement and commitment of the Superior Court for the
District of Columbia upon conviction for the commission of
Assault with a Dangerous Weapon, a violation of Title 22,
District of Columbia.” Indictment, ECF No. 1.
pled guilty to the indictment in December 2018. Plea
Agreement at 1, ECF No. 4. Relevant here, the plea agreement
stated that the parties agreed that her base offense level
was 13 under § 2P1.1(a)(1) of the Sentencing Guidelines.
Id. at 2. But Burnette now argues in her sentencing
memorandum that the base offense level should be 8, not 13.
Def.'s Mem. in Aid of Sentencing (“Def.'s
Mem.”) at 4, ECF No. 10. The Probation Office and the
Government disagree, stating that her base offense level is
13. See U.S.'s Mem. in Aid of Sentencing
(“Gov't's Mem.”) at 2, ECF No. 11;
Presentence Investigation Report (“PSR”) ¶
12, ECF No. 8.
argues that she was in custody at the Fairway Halfway House
“by virtue of” her supervised release revocation,
not “by virtue of” her attempted assault
conviction. Def.'s Mem. at 5. Toward this end, Burnette
directs the Court's attention to United States v.
Halfacre, No. 18-CR-00125 (ABJ). During the sentencing
hearing, another judge of this district found that the base
offense level under § 2P1.1(a) was 8 when the defendant
escaped from custody that had been imposed after he violated
the terms of his supervised released. Sentencing Tr. at
28-29, ECF No. 22, United States v. Halfacre, No.
18-CR-00125 (ABJ). The judge explained that she was
“not particularly moved by this
if-you-give-a-mouse-a-cookie approach to causation”
presented by the Government. Id. at 25. Rejecting
what she saw as too attenuated causation, she found that the
defendant was in custody “by virtue” of the
revocation of his supervised release, not his original
conviction. Id. at 28-29.
true that Burnette was in custody because her supervised
release was revoked. But the Court rejects Burnette's
invitation to accept a false dichotomy. She was only on
supervised release to begin with because of her
underlying criminal conviction. In other words, her criminal
conviction was the but-for cause of her custody at the time.
Burnette admits, the weight of authority is against her.
Three federal courts of appeals have held that a
defendant's incarceration after revocation of supervised
release is custody “by virtue of” the underlying
criminal conviction, meaning that a base offense level of 13
applied. See United States v. Patterson, 230 F.3d
1168, 1171-72 (9th Cir. 2000); United States v.
Evans, 159 F.3d 908, 913 (4th Cir. 1998); United
States v. Pynes, 5 F.3d 1139, 1140 (8th Cir. 1993) (per
curium). And at least one other judge in this district has
said the same. See Sentencing Tr. at 15, ECF No. 35,
United States v. Weems, No. 18-CR-00136 (JDB).
Burnette has pointed to no published opinions from any court
to the contrary.
of the text of the underlying criminal statute, 18 U.S.C.
§ 751(a), is instructive. Section 751(a) distinguishes
based on the seriousness of the offense. It imposes a maximum
of five years of incarceration for someone who escapes if the
custody “is by virtue of an arrest on a charge of
felony, or conviction of any offense.” 18 U.S.C. §
751(a). But it sets a maximum of one year for
someone who escapes from custody “for extradition, or
for exclusion or expulsion proceedings under the immigration
laws, or by virtue of an arrest or charge of or for a
misdemeanor, and prior to conviction.” Id. In
other words, Congress provided for felony and misdemeanor
escape offenses, depending on the seriousness of the
§ 2P1.1(a) follows suit, imposing a base offense level
of 13 “if the custody or confinement is by virtue of an
arrest on a charge of felony, or conviction of any offense,
” roughly tracking the five-year offense, but only a
base offense level of 8 if “otherwise, ” pointing
to the misdemeanor provision. This makes sense as the
Guidelines Sentencing Table for an offense level of 13 starts
at 12 months and goes up from there-above the statutory
maximum for the second category.
the “8, otherwise” language of Section
2P1.1(a)(2) originally read: “8, if from lawful custody
awaiting extradition, pursuant to designation as a
recalcitrant witness or as a result of a lawful arrest for a
misdemeanor.” U.S.S.G. § 2P1.1(a)(2) (1987). While
the prior version is not determinative, it does suggest the
types of circumstances the Commission had in ...