United States v. Meader

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit

                       ____________________

  

No. 99-1536



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                       KENNETH LEON MEADER,

                                

                      Defendant, Appellant.

                     

                      ______________________

                                 

          APPEAL FROM THE UNITED STATES DISTRICT COURT

                                

                   FOR THE DISTRICT OF MAINE

                                

          [Hon. Morton A. Brody, U.S. District Judge]

                      ______________________

                                

                             Before

                                

                     Torruella, Chief Judge,

                Lynch and Lipez, Circuit Judges.

                     ______________________

  

  Walter F. McKee, with whom Lipman & Katz, P.A. was on brief,

for appellant.

  F. Mark Terison, Senior Litigation Counsel, with whom Jay P.

McCloskey, United States Attorney, was on brief, for appellee.



                     ______________________

                                

                       November 15, 1999

                      ______________________


LYNCH, Circuit Judge.  Kenneth Leon Meader appeals his

sentence for conspiracy to commit escape in violation of 18 U.S.C.

 371 and 751.  Meader pled nolo contendere to conspiracy to

escape from the Kennebec County, Maine, jail where he was confined

while awaiting transfer to a federal facility to serve a sentence

for drug offenses.  At sentencing, Meader first stated he wanted to

plead guilty, but upon questioning by the court he repeatedly

denied that he had intended to escape, and so a nolo plea was

taken.  He raises two basic issues on appeal.

    In calculating Meader's criminal history category, the

district court added two points under U.S.S.G.  4A1.1(d) because

Meader was imprisoned at the time he committed the offense, and the

court added one point under  4A1.1(e) because Meader committed the

offense while serving a sentence that had produced more than one

criminal history point.  The district court did not grant Meader a

three point reduction in the base offense level under U.S.S.G.

 2X1.1(b)(2) for an incomplete conspiracy.  

    Meader argues that increasing his criminal history

category under  4A1.1(d) and (e) constituted impermissible "double

counting" because his being imprisoned when he committed conspiracy

to escape is an element of that substantive offense contemplated in

the base offense level.  Secondly, Meader argues that the district

court erred in failing to grant him a three point reduction for an

incomplete conspiracy.  We affirm the district court's rulings

under  4A1.1(d) and (e) in calculating Meader's criminal history

category, and we remand the case for further proceedings on the

question of Meader's eligibility under  2X1.1(b)(2) for a three

point reduction in the base offense level.

"Double Counting"

    Meader's claim that the district court erred in

increasing his criminal history category under  4A1.1(d) and (e)

is foreclosed by the logic of our decision in United States v.

Sanders, 982 F.2d 4 (1st Cir. 1992).  Sanders held that augmenting

both the defendant's base offense level and criminal history

category based upon his possessing a weapon did not constitute

impermissible double counting.  See id. at 6-8.  As in Sanders,

this case does not involve impermissible or unintentional results,

but rather an intent by the Guidelines to consider one factor in

two ways.  That Meader's claim involves the factor of imprisonment

rather than possession of a firearm is of no consequence, nor does

it matter that this case arises under  4A1.1 rather than  4B1.4

as in Sanders.  

    Meader relies on United States v. Bell, 716 F. Supp. 1207

(D. Minn. 1989), which held that considering imprisonment under

 4A1.1(d) and (e) in an escape case results in impermissible

double counting.  Sanders, however, expressly disagreed with Bell,

as have other courts of appeals.  See Sanders, 982 F.2d at 8

(citing United States v. Thomas, 930 F.2d 12, 13-14 (8th Cir. 1991)

(collecting cases)).  We reject Bell's reasoning as well.  "Because

the guidelines are explicit when double counting is forbidden . .

. [a]n adjustment that clearly applies to the conduct of an offense

must be imposed unless the Guidelines expressly exclude its

applicability."  United States v. Ellen, 961 F.2d 462, 468 (4th

Cir. 1992) (internal quotation marks and citations omitted).  As we

stated in Sanders, "[i]t is not our place to rewrite the

Guidelines."  Sanders, 982 F.2d at 8.

Reduction for Incomplete Conspiracy

    The second issue is more problematic.  Under

 2X1.1(b)(2), Meader may receive a three point reduction in base

offense level unless he "completed all the acts . . . necessary .

. . for the successful completion of the substantive offense or .

. . [was] about to complete all such acts . . . ."  See United

States v. Chapdelaine, 989 F.2d 28, 35-36 (1st Cir. 1993).  The

reduction should not be granted if the substantive offense was

"substantially completed."  See U.S.S.G.  2X1.1 commentary

(backg'd).  The Presentence Report ("PSR") recommended that Meader

be granted this three point reduction.  The district court declined

to follow this recommendation, but the record lacks an express

finding on whether the conspiracy to escape had been completed. 

Consequently, Meader claims that the district court erred in

failing to award him the reduction.

    At his sentencing hearing, Meader denied that the

conspiracy to escape had been completed.  Moreover, Meader had

repeatedly claimed that he never intended to escape and that,

instead, his goal was to defraud other inmates (in order to pay

phone bills) by pretending he was going to escape and asking them

for money to assist him.  In response, the government argued that

if Meader wished to continue to claim that he was only involved in

a scheme to defraud, such a scheme to defraud had been completed,

as Meader had succeeded in getting $300 from another inmate.  The

government may also have been led to discuss the issue in terms of

a conspiracy to defraud by the fact that 18 U.S.C.  371, one of

the sections under which Meader was convicted, is titled

"Conspiracy to commit offense or to defraud United States"

(emphasis added).  Most likely, it is this assertion by the

government that caused the confusion as to the basis for the

district court's ruling.  The district court declined to award

Meader a reduction for an incomplete conspiracy, stating, "Since

the conspiracy to defraud was completed, no decrease is warranted

pursuant to Guideline [] 2X1, et al." (emphasis added).  This

statement is the problem, as the relevant inquiry is whether the

conspiracy to escape -- the "substantive offense" charged -- had

been completed.  See U.S.S.G.  2X1.1(b)(2). 

    The government counters with two points: that there is

ample evidence to support a finding that the conspiracy to escape

had been completed and that the district court inadvertently said

"defraud" when it meant to say "escape."  In any event, the

government asserts, any error is harmless because Meader stays

within the original sentencing range, with or without the three

point reduction.  Because we cannot say that the trial judge would

have reached the same sentence within the range, we put aside the

harmless error argument.  Further, if we were confident that the

court's statement was a mere slip of the tongue, it would certainly

not have been clear error for the court to have concluded the

conspiracy to escape was substantially completed.  But we lack such

confidence here where the government erroneously invited the court

to look at this as a conspiracy to defraud and where the PSR

recommended that the three point reduction be given on the basis

that the conspiracy to escape was not substantially completed.  

    There should be greater clarity that the proper question

was answered.  The government's suggestion that we resolve this

factual question gives insufficient weight to the predominant role

of the trial judge in making the factual determinations that drive

sentencing decisions.  See United States v. Tejada-Beltran, 50 F.3d

105, 110-11 (1st Cir. 1995). 

    Accordingly, we affirm the district court's decisions

under  4A1.1(d) and (e), and remand the case for proceedings

consistent with this opinion as to Meader's eligibility for a three

point reduction in base offense level under  2X1.1(b)(2).  So

ordered.