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United States v. Burnette

United States District Court, District of Columbia

March 5, 2019

UNITED STATES OF AMERICA,
v.
JAMEKA BURNETTE, Defendant.

          MEMORANDUM OPINION

          TREVOR N. McFADDEN, UNITED STATES DISTRICT .JUDGE

         Defendant 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.

         In its 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.

         I.

         Burnette 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.[1] 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.

         A 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.

         She 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.[2]

         II.

         Burnette 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.

         It is 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.

         As 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.

         Consideration 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 underlying conduct.

         And § 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.

         More, 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 ...


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