Unpublished Disposition, 931 F.2d 898 (9th Cir. 1988)

MEMORANDUM^** 

Daniel Joseph Birner escaped from an Oregon halfway house (a Federal Bureau of Prisons Contract Facility) on September 6, 1988 while serving a sentence for bank robbery. After his arrest in Seattle on state narcotics charges, he plead guilty to escape in violation of 18 U.S.C. § 751(a). On appeal he challenges various aspects of his sentence, imposed pursuant to the Sentencing Guidelines. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

After pleading guilty to escape Birner was sentenced to twenty-four months. Applying Guideline Sec. 2P1.1(a) the district court found appellant had violated confinement that was "by virtue of an arrest on a charge of felony ..." (i.e., bank robbery) and employed a base level of 13. The court reduced the base level by two points for Birner's acceptance of responsibility. U.S.S.G. Sec. 3E1.1.

In reviewing Birner's criminal history, the court found three prior offenses: a 1980 attempted burglary; the 1981 robbery for which he was incarcerated at the time of the escape; and the 1989 narcotics offense that lead to his recapture. These violations resulted in a criminal history score of 10. U.S.S.G. Sec. 4A1.1(a), (c). The court enhanced this amount by two points, under U.S.S.G. Sec. 4A1.1(d), because Birner escaped "while under a criminal justice sentence" and by one point under Sec. 4A1.1(e), because he escaped while in an imprisonment status for the bank robbery offense.

The resulting criminal history category was V, and sentencing range was 24-30 months. The court sentenced Birner to 24 months, to be served consecutive to time remaining in his bank robbery sentence.

Birner first argues that impermissible double counting occurred because his bank robbery offense is considered both for the purpose of determining the base level, U.S.S.G. Sec. 2P1.1(a), and in determining his criminal history category. This precise argument was asserted and rejected in United States v. Wright, 891 F.2d 209, 211-12 (9th Cir. 1989), which involved remarkably similar circumstances as in this case. We need not revisit this issue. The application of Secs. 4A1.1(d) and (e) to the offense of escape does not result in impermissible double counting.

Next, Birner asserts that it is a violation of the double jeopardy clause of the fifth amendment to punish him for escape, and to enhance his sentence for the same conduct (i.e., escape from confinement on a separate sentence). The Wright court rejected this argument as well. Id. at 212. No double jeopardy violation resulted from Birner's sentence.

Finally, Birner argues that the sentence for escape should have been concurrent, rather than consecutive to the time remaining in his robbery sentence. Guideline Sec. 5G1.3 indicates that if an offense is committed while a defendant "is serving a term of imprisonment ..., the sentence for the instant offense shall be imposed to run consecutively to the unexpired term of imprisonment." (emphasis supplied) This court has held that despite the language of Sec. 5G1.3, it is within the discretion of the district court to impose either a consecutive or a concurrent sentence under these circumstances. United States v. Wills, 881 F.2d 823 (9th Cir. 1989). We therefore review the decision to impose a consecutive sentence in this case for abuse of discretion.

It was well within the discretion of the court to impose a consecutive sentence here. Birner had been paroled twice during his incarceration on the bank robbery offense and on each occasion the parole was revoked. After his transfer to the halfway house, he escaped and was arrested for narcotics sales.

Birner's only challenge to this aspect of the sentence is that because of his history of parole violations and now escape, it is unlikely the U.S. Parole Commission will again grant parole on the bank robbery offense. It is unfair, in his view, that he should have to serve the entire term of his robbery sentence and then, in addition, a sentence for escape. Although the consequence of his escape may extend beyond the sentence for that offense, it was not outside the discretion of the court to impose a consecutive sentence.

AFFIRMED.