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UNITED STATES v. FICO

July 16, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH FICO, Defendant.



The opinion of the court was delivered by: LARIMER

DECISION AND ORDER

 BACKGROUND

 On March 28, 1996, defendant, Joseph Fico, pleaded guilty to an indictment charging him with conspiracy in violation of 18 U.S.C. § 371. On June 21, 1996, I sentenced Fico to a term of imprisonment of sixteen months, followed by a three-year period of supervised release.

 While defendant was on supervised release, on December 17, 1997, I granted a request by the Probation Office to modify the conditions of Fico's release because he had repeatedly tested positive for cocaine since beginning supervised release. One of the new conditions was that defendant was to reside for five months at the Community Corrections Center ("the Center").

 On May 12, 1998, I directed the issuance of a warrant for Fico's arrest, based on his probation officer's allegation that Fico had violated the terms of his supervised release. Specifically, the probation officer stated that on May 10, 1998, staff at the Center gave defendant a leave pass until 9:00 p.m. that night and that defendant failed to return.

 After the warrant was issued, defendant surrendered to the Probation Office. On June 29, 1998, he pleaded guilty to a violation of the terms of his supervised release. He admitted that he violated the special condition that he reside at the Center. Sentencing was scheduled for July 2, 1998.

 Prior to sentencing, an issue arose concerning whether defendant's violation constituted a Grade B or Grade C violation under § 7B1.1 of the United States Sentencing Guidelines. A Grade B violation is defined as "conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year." U.S.S.G. § 7B1.1(a)(2). A Grade C violation is defined as "conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision." U.S.S.G. § 7B1.1(a)(3). Given defendant's criminal history category, the applicable range of imprisonment for a Grade B or C violation would be respectively either eight to fourteen months or five to eleven months. U.S.S.G. § 7B1.4(a). The Guidelines also direct that "upon a finding of either a Grade A or B violation, the court shall revoke . . . supervised release." Section 7B1.3(a)(1). A Grade C violation is not deemed as serious and allows the court to extend supervised release or modify the terms of supervision.

 The Government took the position that defendant had committed a Grade B violation because his failure to return to the Center constituted an escape in violation of 18 U.S.C. § 751(a), which is punishable by a term of imprisonment up to five years. Defendant maintained that his conduct did not violate § 751, because that statute applies only to an escape from "custody." Defendant contended that once he began his supervised release, he was no longer in custody, and that therefore his conduct constituted only a violation of the terms of supervised release, and nothing more.

 On July 2, 1998, in open court, I found that defendant had committed a Grade C violation. I revoked his supervised release, and ordered him incarcerated for a period of six months. This Decision and Order memorializes that ruling and sets forth the reasons underlying my conclusion that defendant committed a Grade C violation, and not a Grade B violation for an escape.

 DISCUSSION

 Although both sides submitted briefs prior to sentencing, none of the cases cited therein, nor any case that the court has found, directly addresses the issue in this case: whether residing at a Community Corrections Center or "halfway house" pursuant to court-imposed terms of supervised release amounts to being in custody for purposed of 18 U.S.C. § 751. Based on the wording of the relevant statutes, however, as well as the reasoning of some cases dealing with similar issues, I conclude that it does not.

 As stated, by its terms § 751 only applies to escape from "custody." In addition, 18 U.S.C. § 4082(a) provides that "the willful failure of a prisoner ... to return within the time prescribed to an institution or facility designated by the Attorney General, shall be deemed an escape from the custody of the Attorney General punishable as provided in" § 751. Although neither statute explicitly makes a distinction between custody and supervised release, in the context of the case at bar I believe that logic dictates such a distinction.

 At the outset, I note that the cases and statutes relied upon by the Government are inapposite. Contrary to the Government's position, § 4082 has no application here because the Center was not "an institution or facility designated by the Attorney General ..." with respect to Fico. See United States v. Miranda, 749 F. Supp. 1062, 1064 (D.Colo. 1990) ( § 4082 not applicable where defendant's stay at center was neither part of pre-release program nor at the direction of the Attorney General, but a condition of his release on bond pending sentencing).

 Likewise, in United States v. Jones, 569 F.2d 499 (9th Cir.), cert. denied, 436 U.S. 908, 56 L. Ed. 2d 407, 98 S. Ct. 2243 (1978), the defendant originally had been committed to prison, but by designation of the Attorney General was released to a contract halfway house, which he left one night and never returned. The other cases cited by the Government are similar and hence factually inapposite to the instant case. See United States v. Taylor, 158 U.S. App. D.C. 298, 485 F.2d 1077 (D.C. Cir. 1973) (defendant serving part of prison sentence in halfway house); United States v. Vaughn, 144 U.S. App. D.C. 316, 446 F.2d 1317 (D.C. Cir. 1971) (defendant participating in work ...


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