UNITED STATES
v.
AGUDELO
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A Federal Prison Camp qualifies as a 'non-secure custody' facility for the purposes of Sentencing Guideline 2P1.1(b)(3).
The defendant escaped from the Eglin Federal Prison Camp, which lacks a perimeter wall or fence. The court considered the definition of 'non-secure cu…
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VINSON, District Judge.
At sentencing in this case, I raised,
sua sponte,
the applicability of Sentencing Guideline 2P1.1(b)(3), which provides, in pertinent part:
If the defendant escaped from the
non-secure custody
of a community corrections center, community treatment center, “halfway house,” or similar facility ... decrease the [base] offense level ... by 4 levels....
§ 2P1.1(b)(3),
United States Sentencing Commission Guidelines
(emphasis added).
The issue is whether a Federal Prison Camp is a “non-secure custody” facility. The Probation Officer’s presentence report (and, apparently, the Sentencing Commission’s position) reflects that it is not. Because of the large number of escape cases handled by this Court, this is a significant issue.
The application notes to guideline 2P1.1 define “non-secure custody” as custody “with no significant physical restraint.”
Id.,
application note 1. The note specifies as an example “where a defendant escaped from an institution with no physical perimeter barrier.”
Id.
The defendant in this case walked away from the grounds of the Eglin Federal Prison Camp at Eglin Air Force Base, Florida. This prison facility does not have a wall, fence, or other barrier around the perimeter. Thus, as defendant correctly asserts and the government concedes, the four-level reduction of base offense level described in Section 2P1.1(b)(3) clearly applies under the plain language of the
Guidelines Manual.
This conclusion is bolstered by consideration of the provisions of the Rules of the United States Parole Commission. The Rules govern parole determinations for all prisoners incarcerated for crimes committed prior to the effective date of the Sentencing Guidelines. Escapes are treated in Section 2.36, “Rescission Guidelines,” at subsection (2). Pursuant to this provision, the defendant’s previously calculated parole date will be deferred 8-16 months for escape or attempted escape. § 2.36(a)(2)(i)(A),
Rules of the United States Parole Commission.
However, if the escape is from “non-secure custody,” the parole date is deferred only 6 months or less.
Id.
at § 2.35(a)(2)(i)(B).
Note (4) to Section 2.36 defines “non-secure custody” in language almost identical to that later used in the sentencing
*340
guidelines, indicating that the Sentencing Commission adopted this language when drafting Guideline 2P1.1(b)(3).
1
Significantly, note (4) includes the parenthetical explanation “(usually a
camp
or community treatment center),” which is not included in the Guidelines Manual’s Application Notes. Thus, the parole rule from which the corresponding sentencing guideline was apparently drawn explicitly states that a “camp” is a “non-secure facility.”
Therefore, I conclude that a Federal Prison Camp is a “non-secure custody” facility for sentencing guideline purposes, and that the four-level adjustment of Section 2P1.1(b)(3) applies to this case.
DONE AND ORDERED.
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United States v. Traves V. Brownlee, 970 F.2d 764 (10th Cir. 1992)…qualify for the four-level reduction specified in U.S.S.G. § 2P1.1(b)(3), the escape be from the non-se [*766] cure custody of a community corrections center, community treatment center, halfway house, or similar facility. United States v. Agudelo, 768 F.Supp. 339 (N.D.FIa.1991); United States v. Crosby, 762 F.Supp. 658 (W.D.Penn.1991).…
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United States v. McGANN, 960 F.2d 846 (9th Cir. 1992)…named in the provision. He would have us focus exclusively on the term “non-secure custody.” 1 Two district courts have taken this approach, holding that section 2P1.1(b)(3) applies to escapes from federal prison camps. See United States v. Agudelo, 768 F.Supp. 339 (N.D.Fla.1991); United States v. Crosby, 762 F.Supp. 658 (W.D.Pa.1991). When the Guidelines apply broadly to cover escapes from all types of non-secure custody, the language of the provision states so explicitly. See U.S.S.G. § 2Pl.l(b)(2). The lan…
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United States v. Shaw, 979 F.2d 41 (5th Cir. 1992)…ecure custody.”4 However, this is not the only element. Shaw cites one case that squarely addresses this issue and concludes that the sole requirement for section 2Pl.l(b)(3) is that the' facility’s custody is “non-secure.” United States v. Agudelo, 768 F.Supp. 339 (N.D.Fla.1991). The Agu-delo court determined that a defendant who had walked away from Eglin Federal Prison Camp at Eglin Air Force Base, Florida, had done so from a “non-secure custody” facility. Id. Based only on this finding, the court granted a…
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