United States v. Meader, 195 F.3d 66, 1st Cir. (1999)

195 F.3d 66 (1st Cir.
1999)
UNITED STATES OF AMERICA, Appellee,

v.
KENNETH LEON MEADER, Defendant, Appellant.
No. 99-1536
UNITED STATES COURT OF APPEALS FOR THE FIRST

CIRCUIT
Heard October 8, 1999
Decided November 15, 1999
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.
Before Torruella, Chief Judge, Lynch and Lipez, Circuit Judges.
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. Prior
to 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 . . . an 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, "it 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.
8
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.
10
11
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. TejadaBeltran, 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.

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195 F.3d 66 (1st Cir.

UNITED STATES OF AMERICA, Appellee,

UNITED STATES COURT OF APPEALS FOR THE FIRST

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