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UNITED STATES v. VALDEZ.

August 16, 1996

UNITED STATES OF AMERICA,
v.
JOSE A. VALDEZ.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 On May 24, 1996, Defendant, Jose A. Valdez, pled guilty to a one count indictment charging that on December 17, 1994, while lawfully confined as a federal prisoner at the satellite camp housing of Fairton Federal Correctional Institution ("FPC-Fairton"), by virtue of a judgment and commitment of the United States District Court for the Southern District of Florida, he knowingly and wilfully escaped from FPC-Fairton satellite camp housing, in violation of 18 U.S.C § 751(a)(1). According to the United States Sentencing Guidelines, the Base Offense Level for this offense is 13. See U.S.S.G. § 2P1.1(a)

 The issues before this Court concern whether Defendant is entitled to a downward offense level adjustment pursuant to either section 2P1.1(b)(3), *fn1" or section 3E1.1 *fn2" of the Sentencing Guidelines. Offense level adjustment under section 2P1.1(b)(3) requires the Court to determine whether FPC-Fairton, the facility from which the Defendant escaped, is a facility "similar to" a community corrections center. In contrast, offense level adjustment under section 3E1.1 requires the Court to decide whether the Defendant clearly demonstrated acceptance of responsibility for his offense. For the reasons which follow, I find that the Defendant is not entitled to a downward offense level adjustment under either provision of the Sentencing Guidelines.

 A. Downward Departure Pursuant to Section 2P1.1(b)(3)

 The Defendant contends that the downward offense level adjustment of U.S.S.G. § 2P1.1(b)(3) should apply to reduce his offense level by four levels. In contrast, the United States asserts that the downward offense level adjustment of U.S.S.G. § 2P1.1(b)(3) does not apply. Section 2P1.1(b)(3) instructs that "if the defendant escaped from the non-secure custody of a community correct ions center, community treatment center, 'halfway house,' or similar facility. . . decrease the offense level under subsection (a)(1) by 4 levels." U.S.S.G. § 2P1.1(b)(3).

 Accordingly, whether the Defendant is entitled to such an offense level reduction in this case depends upon whether, prior to his escape, he was in the "non-secure custody of a community corrections center, community treatment center, 'halfway house,' or similar facility." See U.S.S.G. § 2P1.1(b)(3).

 Whether FPC-Fairton is such a "facility" within the meaning of Section 2P1.1(b)(3) has not yet been addressed in this Circuit. In United States v. Hillstrom, 988 F.2d 448 (3d Cir. 1993), the Court of Appeals for the Third Circuit held that a district court must conduct an evidentiary hearing to ascertain whether a correctional facility from which a defendant has escaped is "similar to" a community corrections center ("CCC") for purposes of offense level reduction under Section 2P1.1(b)(3). On remand, the District Court in Hillstrom noted that the comparison between a community corrections center and the facility from which a defendant escaped is to be made on a case-by-case basis. United States v. Hillstrom, 837 F. Supp. 1324, 1329 (M.D. Pa. 1993), aff'd, 37 F.3d 1490 (3d Cir. 1994), cert. denied, 131 L. Ed. 2d 236, 115 S. Ct. 1382 (1995). Among the factors to be considered are:

 Id. at 1329.

 The United States has provided the Court with a chart comparing the conditions of confinement at FPC-Fairton with The Kintock Group Halfway House of Philadelphia, Pennsylvania, the closest facility used by the Bureau of Prisons. (See Letter Brief, dated August 13, 1996, from Kevin T. Smith, Esq., to Judge Stephen M. Orlofsky, and Chart attached thereto). *fn3" Counsel for Defendant has indicated that he will "not contest [the] contents" of the chart provided by the United States. Counsel for Defendant has also advised the Court that he will not seek an evidentiary hearing on this issue. (See Letter, dated August 14, 1996, from Richard Coughlin, Esq., to Judge Stephen M. Orlofsky). Accordingly, the contents of the attached chart will be incorporated by the Court as part of the undisputed factual record in this case.

 The twenty-five criteria compared in the chart are identical to those utilized by the District Court in Hillstrom in determining whether FPC Allenwood was "similar" to Catholic Services Community Corrections Center ("Catholic Services") in Scranton, Pennsylvania, for purposes of the offense level reduction under Section 2P1.1(b)(3).

 In support of its finding that FPC-Allenwood was not "similar" to Catholic Services, the District Court in Hillstrom noted several distinctions between FPC-Allenwood and a CCC. These same dissimilarities also exist between FPC-Fairton and Kintock Group Halfway House. Most notably, the Court in Hillstrom pointed out "a divergence in the safety ramifications of an escape from the two types of facilities." Id. at 1342. The Court noted that while the staff at FPC-Allenwood is trained in the use of firearms to prevent an escape, the staff at a CCC is not. The Court also noted that while the staff at FPC-Allenwood may apprehend an escapee outside the grounds of the facility, the staff at a CCC cannot. Id.

 Likewise, the undisputed evidence presented to the Court in this case reveals that the staff at FPC-Fairton may use force to prevent an escape, while the staff at Kintock Group Halfway House cannot. In addition, the undisputed facts in this case reveal that the staff of FPC-Fairton may recapture an escapee ...


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