F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 15 1999 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-3189 (D. Kan.) SHAWN L. DIGHERA, (D.Ct. No. 97-CR-40072)
Defendant-Appellant. ____________________________
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Shawn Dighera appeals his seventy-month sentence following his
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. guilty plea and conviction for possession of 340 grams of a substance containing
a detectable quantity of methamphetamine with intent to distribute, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Mr. Dighera contends the district court
incorrectly used his prior state sentence to six months in a conservation or “boot”
camp, as a “sentence of imprisonment” under United States Sentencing Guidelines
§§ 4A1.1 and 4A1.2 for the purpose of calculating his criminal history and
sentence. Mr. Dighera suggests Kansas conservation camp programs are similar
to community-based correctional programs, such as placement in a halfway house,
and therefore, should be assessed at one, not two, criminal points for the purpose
of calculating his criminal history and sentence. We affirm.
We begin by noting Mr. Dighera did not object to the calculation of his
criminal history score prior to his appeal. Thus, we review the district court’s
interpretation of the Sentencing Guidelines in calculating his sentence for plain
error. See Fed. R. Crim. P. 52(b); United States v. Farnsworth, 92 F.3d 1001,
1007 (10th Cir.), cert. denied, 519 U.S. 1034 (1996). Under U.S.S.G. § 4A1.1,
the district court must add three points for each prior “sentence of imprisonment”
exceeding one year and one month, two points for each prior “sentence of
imprisonment” of at least sixty days, and only one point for each prior “sentence”
not counted in the other two categories. U.S.S.G. § 4A1.1 (a) - (c). Under
-2- U.S.S.G. § 4A1.2(b)(1), “[t]he term ‘sentence of imprisonment’ means a sentence
of incarceration and refers to the maximum sentence imposed.” In the
Commentary to U.S.S.G. § 4A1.1, “confinement sentences” longer than one year
and one month or more than sixty days, are distinguished from “all other
sentences, such as confinement sentences of less than sixty days, probation, fines
and residency in a halfway house.” U.S.S.G. § 4A1.1, comment. (backg’d).
In this case, the district court interpreted the term “sentence of
imprisonment” to include Mr. Dighera’s six-month sentence to a state
conservation camp and therefore added two criminal points to his criminal history
score. In challenging the district court’s interpretation, Mr. Dighera relies on
statutory language, including Kan. Stat. Ann. § 21-4703(o), which states
“nonimprisonment” means conservation camps or other community-based
dispositions, and Kan. Stat. Ann. § 21-4603d(11) (repealed July 1, 1997), which
states a “defendant shall not be sentenced to imprisonment, if space is available in
the conservation camp.” In further support of his contention that conservation
camps involve community-based sentences instead of incarceration, Mr. Dighera
notes that while he was incarcerated at the “Labette Boot Camp,” he attended
-3- classes at the Labette Community College 1 – making the camp more akin to a
community-based program. We disagree.
We have previously distinguished sentences involving physical
confinement, such as incarceration at a prison camp, from non-secured custody
such as placement at a halfway house. See United States v. Brownlee, 970 F.2d
764, 765-66 & n.1 (10th Cir. 1992) (holding that incarceration in a federal prison
camp is unlike placement in non-secure custody facilities, such as community
corrections centers, community treatment centers and halfway houses, where there
is no physical restraint). Similarly, in interpreting a “sentence of imprisonment”
under U.S.S.G. §§ 4A1.1 and 4A1.2, we determined drug treatment under the
Narcotic Addict Rehabilitation Act, 18 U.S.C. §§ 4251 - 4255 (repealed Nov. 1,
1984), constituted a “sentence of imprisonment” because it involved physical
confinement during treatment in a facility or the federal penal system. See United
States v. Vanderlaan, 921 F.2d 257, 259 (10th Cir. 1990) (noting that physical
confinement is a key distinction between sentences of imprisonment and other
types of sentences), cert. denied, 499 U.S. 954 (1991).
1 While Mr. Dighera’s counsel contends Mr. Dighera attended Washburn University in Topeka, Kansas, during boot camp, the record shows he attended the University after completing boot camp.
-4- Having determined that physical confinement demonstrates a “sentence of
imprisonment,” we must look at whether Mr. Dighera’s placement in the state
conservation camp served as a “sentence of imprisonment” for the purposes of
U.S.S.G. §§ 4A1.1 and 4A1.2. Although nothing in the record establishes
whether Mr. Dighera was physically confined, we note that under Kansas law, the
Labette Correctional Conservation Camp where Mr. Dighera was sentenced is
considered a minimum security “boot camp” authorized under Kan. Stat. Ann.
§ 75-52,132. See State v. Benoit, 898 P.2d 653, 657 (Kan. Ct. App. 1995).
Kansas case law further establishes that even though the Labette “boot camp” is
operated as a private business, it is considered a state correctional facility
governed by the Kansas administrative regulations for the Kansas Department of
Corrections, its correctional officers are considered law enforcement officers, and
its employees are ultimately accountable to the Kansas Secretary of Corrections.
Id. at 660-61; see also Kan. Stat. Ann. § 75-52,127 (stating Kansas conservation
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 15 1999 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-3189 (D. Kan.) SHAWN L. DIGHERA, (D.Ct. No. 97-CR-40072)
Defendant-Appellant. ____________________________
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Shawn Dighera appeals his seventy-month sentence following his
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. guilty plea and conviction for possession of 340 grams of a substance containing
a detectable quantity of methamphetamine with intent to distribute, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Mr. Dighera contends the district court
incorrectly used his prior state sentence to six months in a conservation or “boot”
camp, as a “sentence of imprisonment” under United States Sentencing Guidelines
§§ 4A1.1 and 4A1.2 for the purpose of calculating his criminal history and
sentence. Mr. Dighera suggests Kansas conservation camp programs are similar
to community-based correctional programs, such as placement in a halfway house,
and therefore, should be assessed at one, not two, criminal points for the purpose
of calculating his criminal history and sentence. We affirm.
We begin by noting Mr. Dighera did not object to the calculation of his
criminal history score prior to his appeal. Thus, we review the district court’s
interpretation of the Sentencing Guidelines in calculating his sentence for plain
error. See Fed. R. Crim. P. 52(b); United States v. Farnsworth, 92 F.3d 1001,
1007 (10th Cir.), cert. denied, 519 U.S. 1034 (1996). Under U.S.S.G. § 4A1.1,
the district court must add three points for each prior “sentence of imprisonment”
exceeding one year and one month, two points for each prior “sentence of
imprisonment” of at least sixty days, and only one point for each prior “sentence”
not counted in the other two categories. U.S.S.G. § 4A1.1 (a) - (c). Under
-2- U.S.S.G. § 4A1.2(b)(1), “[t]he term ‘sentence of imprisonment’ means a sentence
of incarceration and refers to the maximum sentence imposed.” In the
Commentary to U.S.S.G. § 4A1.1, “confinement sentences” longer than one year
and one month or more than sixty days, are distinguished from “all other
sentences, such as confinement sentences of less than sixty days, probation, fines
and residency in a halfway house.” U.S.S.G. § 4A1.1, comment. (backg’d).
In this case, the district court interpreted the term “sentence of
imprisonment” to include Mr. Dighera’s six-month sentence to a state
conservation camp and therefore added two criminal points to his criminal history
score. In challenging the district court’s interpretation, Mr. Dighera relies on
statutory language, including Kan. Stat. Ann. § 21-4703(o), which states
“nonimprisonment” means conservation camps or other community-based
dispositions, and Kan. Stat. Ann. § 21-4603d(11) (repealed July 1, 1997), which
states a “defendant shall not be sentenced to imprisonment, if space is available in
the conservation camp.” In further support of his contention that conservation
camps involve community-based sentences instead of incarceration, Mr. Dighera
notes that while he was incarcerated at the “Labette Boot Camp,” he attended
-3- classes at the Labette Community College 1 – making the camp more akin to a
community-based program. We disagree.
We have previously distinguished sentences involving physical
confinement, such as incarceration at a prison camp, from non-secured custody
such as placement at a halfway house. See United States v. Brownlee, 970 F.2d
764, 765-66 & n.1 (10th Cir. 1992) (holding that incarceration in a federal prison
camp is unlike placement in non-secure custody facilities, such as community
corrections centers, community treatment centers and halfway houses, where there
is no physical restraint). Similarly, in interpreting a “sentence of imprisonment”
under U.S.S.G. §§ 4A1.1 and 4A1.2, we determined drug treatment under the
Narcotic Addict Rehabilitation Act, 18 U.S.C. §§ 4251 - 4255 (repealed Nov. 1,
1984), constituted a “sentence of imprisonment” because it involved physical
confinement during treatment in a facility or the federal penal system. See United
States v. Vanderlaan, 921 F.2d 257, 259 (10th Cir. 1990) (noting that physical
confinement is a key distinction between sentences of imprisonment and other
types of sentences), cert. denied, 499 U.S. 954 (1991).
1 While Mr. Dighera’s counsel contends Mr. Dighera attended Washburn University in Topeka, Kansas, during boot camp, the record shows he attended the University after completing boot camp.
-4- Having determined that physical confinement demonstrates a “sentence of
imprisonment,” we must look at whether Mr. Dighera’s placement in the state
conservation camp served as a “sentence of imprisonment” for the purposes of
U.S.S.G. §§ 4A1.1 and 4A1.2. Although nothing in the record establishes
whether Mr. Dighera was physically confined, we note that under Kansas law, the
Labette Correctional Conservation Camp where Mr. Dighera was sentenced is
considered a minimum security “boot camp” authorized under Kan. Stat. Ann.
§ 75-52,132. See State v. Benoit, 898 P.2d 653, 657 (Kan. Ct. App. 1995).
Kansas case law further establishes that even though the Labette “boot camp” is
operated as a private business, it is considered a state correctional facility
governed by the Kansas administrative regulations for the Kansas Department of
Corrections, its correctional officers are considered law enforcement officers, and
its employees are ultimately accountable to the Kansas Secretary of Corrections.
Id. at 660-61; see also Kan. Stat. Ann. § 75-52,127 (stating Kansas conservation
camps shall be a state correctional institution or facility of confinement under the
supervision of the Secretary of Corrections).
These factors clearly establish Mr. Dighera was physically confined in a
secured correctional facility and, therefore, his sentence to the state boot camp
constituted a “sentence of imprisonment” within the meaning of U.S.S.G.
-5- §§ 4A1.1 and 4A1.2. See United States v. Brooks, 166 F.3d 723, 726-27 (5th Cir.
1999) (finding that because defendant was not free to leave state boot camp, his
confinement fell into the category of incarceration eligible for § 4A1.1(b)
treatment). While Kan Stat. Ann. § 21-4703(o) defines “nonimprisonment” as
conservation camps or other community-based dispositions, we conclude that this
definition is not dispositive in determining whether conservation camps are
“sentences of inprisonment” for the purpose of federal Sentencing Guidelines.
For these reasons, we conclude the district court correctly calculated Mr.
Dighera’s sentence by adding two criminal points for his incarceration in the boot
camp.
In light of our decision that Mr. Dighera was physically confined in a
secured boot camp, the fact he attended college classes is neither persuasive nor
dispositive of the confinement issue. Moreover, the record does not clearly
indicate whether Mr. Dighera left the camp to attend classes or whether he
attended classes offered at the camp itself or through correspondence. In
addition, while his ability to attend classes arguably indicates that his sentence
was rehabilitative in nature, the purpose behind an incarceration is not a key
factor in determining whether a sentence is a “sentence of imprisonment” under
the sentencing guidelines. Vanderlaan, 921 F.2d at 259.
-6- For these reasons, we AFFIRM Mr. Dighera’s sentence.
Entered by the Court:
WADE BRORBY United States Circuit Judge
-7-