On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Criminal No. 89-114.
Higginbotham, Chief Judge and Cowen and Nygaard, Circuit Judges.
Appellant Jorge Luis Audinot challenges a sentence imposed upon him under the Federal Sentencing Guidelines following a plea of guilty to one count of escape. 18 U.S.C. § 751(a). Appellant escaped from a federal prison on September 20, 1986. He was recaptured on July 18, 1989. Meanwhile, the Federal Sentencing Guidelines were promulgated. Audinot was convicted of escape.*fn1 The district court concluded that Audinot had not accepted responsibility and that his offense level of 13 placed him in criminal category IV. The court treated Audinot's escape as a continuing crime, followed the Guidelines, and sentenced him to 27 months of imprisonment followed by three years of supervised release, and imposed a fifty dollar special assessment. Audinot appeals from that judgment, alleging that the district court improperly calculated his criminal history; failed to reduce his sentence when he accepted responsibility; and violated the Ex Post Facto Clause by imposing a guideline sentence. We have jurisdiction under 28 U.S.C. § 1291 to review a final sentence. We will affirm.
We review the district court's factual decisions regarding acceptance of responsibility reductions and criminal history calculations only for clear error. See United States v. Ortiz, 878 F.2d 125, 128 (3d Cir. 1989). The ex post facto issue is a question of law over which we exercise plenary review.
Audinot argues that his Guideline sentence violates the Ex Post Facto Clause, because he committed the escape before Congress enacted the Sentencing Guidelines. See U.S. Const. Art. I, Sec. 9, clause 3. The Ex Post Facto Clause protects a person against federal (and state) statutes which retroactively: punish as a crime an act which was innocent when committed; increase the punishment for a previously-committed crime; or deprive a defendant of existing defenses. Weaver v. Graham, 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981); Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L. Ed. 216, 46 S. Ct. 68 (1925); United States ex rel. Forman v. McCall, 709 F.2d 852 (3d Cir. 1983). To establish an ex post facto violation, the defendant must demonstrate that the law was applied retroactively and "[disadvantaged] the offender affected by it." Weaver, 450 U.S. at 29; Crowell v. United States Parole Commission, 724 F.2d 1406 (3d Cir. 1984). Audinot satisfies the second part of this test because the Guidelines mandate a consecutive sentence, prohibit probation for offenses with ranges above ten months, and do not provide for either parole or good time credit. See U.S.S.G. §§ 5G1.3, 5C2.1(f).
Audinot also argues that because the Guidelines were applied retroactively to him, he also satisfies the first test. Retroactivity depends on whether or not escape is defined as a continuing crime. If it is, the Guidelines have not been applied retroactively and he has suffered no ex post facto violation. Although we have yet to address the question directly, in U.S. v. Ofchinick, 877 F.2d 251, 255 (3d Cir. 1989), we stated in dictum:
While we do not suggest that a person guilty of escape under 18 U.S.C. § 751 (a) commits a continuing offense under that section by remaining at large, it is obvious that the public suffers an ongoing harm so long as a person who should be in confinement is free, for the judgment of sentence imposed by the court for the underlying offense is continually flouted.
Appellant suggests that we refused to define escape as a continuing crime by inserting this language. To the contrary, this statement expresses no opinion on the definition of escape. The statement in Ofchinick is unnecessary to the decision, and may not be relied upon by appellant to establish a definition of escape contrary to that given us by the Supreme Court in U.S. v. Bailey, 444 U.S. 394, 413, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980). In Bailey, the Supreme Court in a different context identified escape as a continuing crime.
First, we think it clear beyond peradventure that escape from federal custody as defined in § 751 (a) is a continuing offense and that an escapee can be held liable for failure to return to custody as well as for his initial departure. Given the continuing threat to society posed by the escaped prisoner, 'the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one', Toussie v. United States, 397 U.S. 112, 115, 25 L. Ed. 2d 156, 90 S. Ct. 858 (1970). Moreover, every federal court ...