Unpublished Disposition, 869 F.2d 1499 (9th Cir. 1987)

MEMORANDUM^** 

After a trial before the court, appellant was found guilty of escape in violation of 18 U.S.C. § 751(a) (1982). He was sentenced to a term of five years imprisonment to be served consecutively to the sentence being served at the time of escape. Appellant's appeal was timely, and we affirm.

The sentence being served at the time of escape rested upon appellant's conviction on two counts of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a) (1) (1982). His presumptive parole date was March 17, 1987. In November, 1986, appellant was transferred to a Tucson prerelease center known as New Beginnings. Its regimen required that appellant report after work but permitted him to check out for the evening provided he returned by 11:00 P.M. and remained at the center until 7:00 A.M. Time cards were used to record departures and returns.

On March 6, 1987, appellant left New Beginnings at 7:00 a.m. and never returned. On the previous day he had returned from work at 5:52 p.m., left again at 7:02 p.m., and returned at 10:26 p.m. His absence in the early evening of March 6, 1987 was noticed by an employee of New Beginnings.

Appellant entered a plea of not guilty and after a trial before the court was found guilty as charged. He appeals, asserting that there was insufficient evidence to support his conviction because the government failed to prove that his absence was voluntary, with the intent to avoid confinement.

The proof appellant insists is lacking is not necessary to support his conviction. The Supreme Court in United States v. Bailey, 444 U.S. 394, 407 (1980), held that to sustain a conviction under 18 U.S.C. § 751(a), the accused must (1) have been placed in the custody of the Attorney General, (2) as a result of a conviction, and (3) have escaped from custody. The government must prove that the "escapee knew his actions would result in his leaving physical confinement without permission." Id. at 408.

The evidence is sufficient to support such a finding. Not only did the appellant sign a form indicating he had read the rules and regulations of New Beginnings, he complied with them on the day prior to his escape. Moreover, his failure to return under these circumstances demonstrates that he knew he was leaving confinement without permission. That it is likely appellant left the center to avoid arrest on another crime does not obliterate the crime of escape under 18 U.S.C. § 751(a).

AFFIRMED.