On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Criminal No. 88-00124.
Higginbotham, Greenberg and Hutchinson, Circuit Judges.
Daniel R. Ofchinick, Jr. appeals from a judgment of sentence imposed under the sentencing guidelines following his guilty plea to an indictment charging him with escape contrary to 18 U.S.C. 751(a). His appeal implicates application of the guidelines by the district court.
The circumstances of his escape and apprehension are as follows. On June 9, 1988, Ofchinick was sentenced to a five year custodial term for mail fraud and related offenses and was required to make restitution to the victim of $3,998,625.54. He was, however, permitted to self-report to the Federal Correctional Institution, Loretto, Pennsylvania, which he did on July 6, 1988. On July 27, 1988, he escaped and he remained at large until September 24, 1988, when he was arrested at Denver, Colorado. Before he was recaptured, he made several contacts with a United States Attorney's Office to arrange for a voluntary return but he never surrendered, though there was no legitimate reason why he could not have done so.
On August 4, 1988, he was indicted for escape. On October 12, 1988, Ofchinick pleaded not guilty to the indictment but on November 18, 1988, without a plea agreement, he changed his plea to guilty.
Ofchinick's offense level computation in the presentence report was the base offense level, 13, for violation of 18 U.S.C. § 751(a) in guideline § 2P1.1(a)(1), with no adjustments. His criminal history category was III, computed as follows. He received 3 points under guideline § 4A1.1(a) for the sentence of imprisonment for the mail fraud and related offenses. There were 2 points added under guideline § 4A1.1(d) as he was under the criminal justice sentence of imprisonment when he escaped and 1 point was added under guideline § 4A1.1(e) as he was in confinement when he escaped. The total of 6 points put Ofchinick in criminal history category III. Predicated on this criminal history category and his total offense level of 13, the guidelines range was 18 to 24 months which, under guideline § 5G1.3, was to run consecutively to the sentence he was already serving. The presentence report identified no factors justifying departure from the guidelines.
Ofchinick submitted objections to the report which were noted in an addendum to it. He contended that his total offense level should have been reduced by 2 levels to 11 for acceptance of responsibility, as "at various times during his flight" he "made efforts to arrange for his surrender" and that "immediately upon his capture" he "sought to arrange to enter his plea [of guilty]." He also contended that the increase of 3 points in his criminal history category computation violated the due process clause of the Fifth Amendment and was "without foundation in the law or common sense." He urged that the base offense level necessarily took into account the fact that he was in custody, as that was an element of the offense of escape, so that his status was counted twice when points were added in computing his criminal history category because he was under a sentence of imprisonment and was in confinement.
On December 19, 1988, the district court filed its "tentative findings and rulings concerning disputed facts or factors" and rejected Ofchinick's contentions. It pointed out that under guideline § 3E1.1(a) a defendant could obtain a 2 level reduction in the offense level if he "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." It then indicated that it was appropriate for the court to consider the factors set forth in application note 1 to guideline § 3E1.1. It said that the keynote to the provision is the "sincerity of the defendant's remorse" and that it was not convinced Ofchinick was remorseful. While the court acknowledged that Ofchinick pleaded guilty promptly and cooperated with the authorities by telling them what occurred, it was not tremendously impressed with this as he had little to tell and the government had a strong case. The court also observed that Ofchinick did not voluntarily surrender, though he had contacted the government while at large offering to cooperate.
The court held that 2 points were properly added to the criminal history category computation as Ofchinick escaped while under the criminal justice sentence of imprisonment, guideline § 4A1.1(d), thus rejecting Ofchinick's contention that his status as a prisoner was double counted by being considered in both the base offense level and the criminal history category. It pointed out that the Sentencing Commission, in setting forth the method for computing the criminal history category, did not exclude from consideration a criminal justice sentence being served when the defendant committed the offense for which he was being sentenced, even though his being in custody was an element of the offense. It also found, citing United States v. Goodface, 835 F.2d 1233, 1236 (8th Cir. 1987), that Ofchinick was not denied due process of law by the computation of the criminal history category.
The court determined that 1 point was properly added under guideline § 4A1.1(e), which provides for that addition if the defendant committed the new offense "less than two years after release from imprisonment on a sentence counted" under guideline § 4A1.1(a).*fn1 This was, however, troublesome as Ofchinick obviously escaped before he was released. Nevertheless, the court justified the 1 point increase because application note 5 to guideline § 4A1.1 provides that guideline § 4A1.1(e) applies "if the defendant committed the instant offense while still in confinement on such a sentence." The court indicated that while ordinarily a court will not refer to legislative history in construing a statute which is clear on its face, citing United States v. Oregon, 366 U.S. 643, 648, 81 S. Ct. 1278, 1281, 6 L. Ed. 2d 575 (1961), circumstances may exist in which a literal reading of a statute conflicts with clear contrary evidence of legislative intent, citing National R.R. Passenger Corp. v. National Ass'n of R.R. Passengers, 414 U.S. 453, 458, 94 S. Ct. 690, 693, 38 L. Ed. 2d 646 (1974). Thus, it said that a court "may use available aids to construction no matter how clear a statute may appear on first inspection," quoting Brigham v. United States, 539 F.2d 1312, 1316 n. 8 (3d Cir. 1976). Accordingly, the court followed the application note and added the point.*fn2
Ofchinick filed objections to the tentative findings but the court adopted the tentative findings on December 22, 1988, and sentenced Ofchinick to a custodial term of 21 months to be served consecutively to the sentence on the mail fraud and related counts, to be followed by a three year term of supervised release. Ofchinick has appealed from the judgment of sentence, raising essentially the same issues he advanced in the district court.
The government in its brief sets forth that the standard of review of Ofchinick's claim for a 2 level reduction in the offense level for acceptance of responsibility in guideline § 3E1.1, is whether the factual findings of the district court were clearly erroneous, a conclusion it predicates on 18 U.S.C. § 3742(e) (formerly (d)), which provides that the court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts." See United States v. Franco-Torres, 869 F.2d 797, 799 (5th ...