United States v. Christopher Lakey

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 16, 2018
• Docket: 17-30186
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 16 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30186

Plaintiff-Appellee, D.C. No. 2:17-cr-00004-DLC-1 v.

CHRISTOPHER GLENN LAKEY, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, Chief Judge, Presiding

Submitted July 12, 2018** Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Joan Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. Christopher Glenn Lakey appeals his sentence of eighteen months in custody

and three years of supervised release, imposed following his guilty plea to one

count of escape in violation of 18 U.S.C. § 751(a). We review de novo, United

States v. Tomsha-Miguel, 766 F.3d 1041, 1049–50 (9th Cir. 2014), and we affirm.

As a result of Lakey’s guilty plea, he “conclusively admit[ted] all factual

allegations of the indictment,” United States v. Yijun Zhou, 838 F.3d 1007, 1013

(9th Cir. 2016), including that he was in “the custody of the Attorney General or

his authorized representative,” or he was “confined by direction of the Attorney

General,” 18 U.S.C. § 751(a).

Lakey argues that 18 U.S.C. § 751(a) cannot legally apply because he was

on supervised release by virtue of being housed at the Butte Prerelease Residential

Reentry Center. Even if Lakey’s guilty plea had not waived this argument, it

would be unavailing. Unlike the circumstances in United States v. Sullivan, 504

F.3d 969 (9th Cir. 2007), United States v. Burke, 694 F.3d 1062 (9th Cir. 2012),

and United States v. Turner, 689 F.3d 1117 (9th Cir. 2012), Lakey had “not yet

served his entire federal sentence” at the time of his escape, so he had “not been

released from [the Bureau of Prison’s (“BOP”)] legal custody.” United States v.

Earl, 729 F.3d 1064, 1067 (9th Cir. 2013). Therefore, his term of supervised

release had not commenced. Id. at 1067–68; see United States v. Miller, 547 F.3d

2 1207, 1210–13 (9th Cir. 2008) (“Regardless of where the BOP elects to transfer a

person, she or he remains under BOP custody until the prescribed term of

‘imprisonment’ expires.”).

AFFIRMED.