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http://laws.findlaw.com/7th/951945.html |
In the United States Court of Appeals For the Seventh Circuit
No. 95-1945
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSIAH COMPTON, III, also known as "LITTLE JOE,"
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 94 CR 30065--William D. Stiehl, Judge.
ARGUED NOVEMBER 7, 1995--DECIDED APRIL 29, 1996þ
Before POSNER, Chief Judge, COFFEY and SKINNER,* Circuit Judges.
COFFEY, Circuit Judge. Josiah ("Little Joe") Compton pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. sec. 922(g)(1), and was convicted by a jury of distributing cocaine base (or "crack"), in viola- tion of 21 U.S.C. sec. 841(a)(1). The district judge imposed concurrent sentences of 60 months imprisonment and three years supervised release, plus a fine of $500 and a special assessment of $100. Compton appeals his sentence, ar- guing that the district court engaged in impermissible "double counting" when it calculated his criminal history pursuant to sec. 4A1.1 of the Sentencing Guidelines. We hold that the sentencing judge's calculation of the defendant's criminal history was proper. Sentence affirmed.
I. BACKGROUND
A. Compton's Illinois Drug Conviction & Sentence
On August 13, 1992, an Illinois state court sentenced Compton to five years in prison after he entered a plea of guilty to possession of cocaine. /1 Compton was incarcer- ated at the Menard Correctional Center, a state prison in Menard, Illinois, for approximately ten months. There- after, he was released by the Illinois Department of Cor- rections in order to serve the remainder of his sentence under electronic home detention. 730 ILCS 5/5-8-A. In late June of 1993, before entering the home detention program, Compton signed a written agreement in which (among other things) he pledged to wear an electronic-monitoring bracelet, obey all federal and state laws and local ordi- nances, and refrain from the possession of firearms or illicit drugs for the duration of his home confinement. Compton was to serve his period of home detention at his sister's apartment in Venice, Illinois and, if he com- plied with the terms of the agreement, he was scheduled to be discharged from the electronic monitoring program on July 22, 1994.
After Compton's home detention had commenced, the Department of Corrections received information that the defendant was selling drugs from his sister's apartment, in violation of the terms of his agreement. The Depart- ment of Corrections contacted the Venice Police Depart- ment, which arranged for a confidential informant ("CI") to make a controlled purchase of crack cocaine from the defendant on February 1, 1994. On March 3, Venice police and two agents from the Department of Corrections went to the apartment where Compton was living to take him into custody for the February 1 cocaine sale, which had been a clear violation of Compton's home detention agree- ment. /2 On this date, a search of the apartment revealed 45.8 grams of a white powdery substance resembling co- caine, /3 a .45 caliber semi-automatic pistol, and a safe con- taining $5,117.87 in cash. As discussed briefly below, this search--although conducted without a warrant--was au- thorized by the terms of the written home detention agreement between Compton and the Department of Cor- rections, which permitted corrections officials to search Compton's "host site" "at any time" and "for any reason."
B. Federal Prosecution of Compton
Following his arrest, Compton was turned over to fed- eral authorities for prosecution and on July 21, 1994, a grand jury returned a four-count indictment against him. Count I of the indictment charged Compton with distribu- tion of cocaine base, in violation of 21 U.S.C. sec. 841(a)(1) (the sale of crack to the CI on February 1, 1994). Counts II and III of the indictment stemmed from the powder "cocaine" discovered at the apartment on March 3 and were eventually dismissed at the Government's urging when testing of the powder (conducted after Compton's trial) revealed that it was less than 1 percent pure. /4 Count IV charged the defendant with possession of a firearm by a convicted felon, in violation of 18 U.S.C. sec. 922(g)(1).
Compton filed a motion to suppress the evidence seized at the "host site," challenging the search on Fourth Amend- ment grounds because it was conducted without a warrant and without Compton's consent. The district court, on September 19, rejected Compton's Fourth Amendment ar- guments, observing that: (1) the terms of the home deten- tion agreement explicitly authorized searches "at any time" and "for any reason," and (2) even without this authorization, Compton did not enjoy the same Fourth Amendment protection as an ordinary citizen because he was essentially an "inmate" of the corrections system at the time of the search. Compton has not appealed the dis- trict court's denial of his suppression motion.
Compton pleaded guilty to Count IV of the indictment (possession of a firearm by a convicted felon) on Septem- ber 20, 1994, the same day his jury trial commenced. On September 22, the jury convicted him of the remaining three counts. Following the jury's findings, but before sentencing, Counts II and III of the indictment were dis- missed on the motion of the United States Attorney be- cause post-trial laboratory testing demonstrated that the cocaine seized in Compton's apartment was less than 1 percent pure. /5 Thus, for sentencing purposes, only Count I (dis- tribution of crack cocaine) and Count IV (possession of a firearm by a convicted felon) were before the district court.
C. Sentencing
The probation department prepared a Presentence Investi- gation Report ("PSR") and a revised PSR, and Compton filed no written objections. Compton was assigned a total offense level of 18 and ten criminal history points pur- suant to sec. 4A1.1. /6 His criminal history total included two points under subsection (d) because "the defendant com- mitted the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." U.S.S.G. sec. 4A1.1(d). The PSR also included an additional point pur- suant to subsection (e), which provides:
(e) Add 2 points if the defendant committed the in- stant offense less than two years after release from imprisonment on a sentence counted under (a) or (b) or while in imprisonment or escape status on such a sentence. If 2 points are added for item (d), add only 1 point for this item.
U.S.S.G. sec. 4A1.1(e) (emphasis added).
At the sentencing hearing on April 7, 1995, Compton argued that the assignment of two criminal history points under sec. 4A1.1(d) plus another point under the "while in imprisonment" language of sec. 4A1.1(e) amounted to imper- missible double counting. The district court acknowledged that sec. 4A1.1 "could be more felicitously worded or more properly punctuated," but found that the Guidelines clear- ly contemplated a total of three criminal history points for a defendant who committed a crime while "imprisoned." The sentencing judge apparently assumed that electronic home detention was "imprisonment" for purposes of ap- plying sec. 4A1.1 7 and thus relied upon the "while in im- prisonment" language of subsection (e) instead of the first clause of that subsection, which calls for an enhancement when the defendant has committed the offense within two years of release from prison.
The practical significance of the extra point assigned to Compton pursuant to sec. 4A1.1(e) is that under the Guide- lines it served to move him into a higher criminal history category. Without the disputed point, Compton would have had but nine points and been classified in Category IV, for which the Guidelines authorize a term of imprison- ment of 41 to 51 months. Adding one point under subsec- tion (e) gave Compton a total of ten criminal history points, which placed him in Category V and allowed the judge to impose a sentence of anywhere between 51 to 63 months. The actual sentence, as noted above, was towards the high end of this range (60 months on each of the counts, to be served concurrently).
II. ISSUE
The facts in this case are undisputed and the sole legal issue presented is whether the district court engaged in impermissible "double counting" when it assigned Comp- ton two criminal history points pursuant to sec. 4A1.1(d) of the Sentencing Guidelines and an additional point under sec. 4A1.1(e). Whether a sentencing court has incorrectly ap- plied the Guidelines by "double counting" is a question of law that we review de novo. United States v. Haines, 32 F.3d 290, 293 (7th Cir. 1994).
III. DISCUSSION
Like many of the sentencing appeals decided by this court, this one involves a dispute over numbers; specifical- ly, the number of criminal history points the district court could properly assign to the defendant under sec. 4A1.1 of the Guidelines. Compton does not challenge the two points assigned to him under 4A1.1(d) for committing an offense "while under any criminal justice sentence, including . . . imprisonment," /8 but he does take issue with the additional point he received under 4A1.1(e) for committing a crime "while in imprisonment." According to Compton, subsec- tion (e) punishes him a second time for the same conduct and thus amounts to impermissible double counting. This court defines double counting as the imposition of "two or more upward adjustments . . . when both are prem- ised on the same conduct." Haines, 32 F.3d at 293.
When briefing this case, the parties assumed that elec- tronic home detention was "imprisonment" and addressed themselves to the question of whether committing an offense while thus "imprisoned" could be held against Compton twice: once under 4A1.1(d) and again under 4A1.1(e). The parties' assumptions about Compton's "imprisoned" status were logical for a number of reasons. First and foremost, as noted above, the district court relied upon the "while in imprisonment" language of 4A1.1(e) when it awarded Compton an additional criminal history point (the court did not invoke the part of subsection (e) that calls for an additional point when a defendant has committed an of- fense "less than two years after release from imprison- ment"). Electronic home detention, with its significant restraints on freedom of movement, is arguably a form of "imprisonment" as that term is commonly defined. 9 Case law from Illinois, for example, suggests (although it does not explicitly hold) that electronic home detention is a type of "imprisonment." See, e.g., People v. Moss, 654 N.E.2d 248, 251 (Ill. App. 1995) ("the term 'penal institu- tion' is . . . broad enough to encompass the electronic home detention program"); People v. Ramos, 537 N.E.2d 1121, 1123 (Ill. App. 1989) (electronic home monitoring con- stitutes "custody" for purposes of calculating a sentence credit).
Notwithstanding the parties' (and the district court's) mistaken assumptions concerning the scope of "imprison- ment" under federal law, this circuit has recently clarified and determined that electronic home detention is not a form of "imprisonment" for purposes of the Federal Sen- tencing Guidelines. In United States v. Phipps, /10 decided by this court last October, we held that the meaning of "imprisonment" is a question of federal law and that "im- prisonment," at least in the context of the Guidelines, de- notes time actually spent in a penal institution. 68 F.3d 159, 162 (7th Cir. 1995). Specifically, the court noted that " 'home detention' differs from 'imprisonment' throughout the Guidelines schema. It is not 'imprisonment' but a 'sub- stitute for imprisonment.' " Id. (citations omitted).
In light of Phipps, as noted by the Government at oral argument in this case, much of the parties' analysis of the "double counting" issue becomes irrelevant. If Comp- ton was not "imprisoned" during the period of his elec- tronic home detention, as we hold, then the allocation of an extra criminal history point based on the "while in im- prisonment" language of sec. 4A1.1(e) was improper (quite apart from any arguments concerning double counting). Indeed, if subsection (e) only contained the phrase "while in imprisonment," our analysis would be concluded; be- cause of the holding in Phipps, we would be obliged to remand this case for re-sentencing. 18 U.S.C. sec. 3742.
There is, however, an alternative basis for affirming the additional criminal history point awarded to Compton by the sentencing judge. Subsection (e) contains language authorizing an additional point when, as in Compton's case, a defendant has committed a crime within a period of "two years after release from imprisonment." U.S.S.G. sec. 4A1.1(e). The record shows that Compton was released from prison in late June or possibly early July of 1993, 11 less than one year before committing the instant offenses in February and March of 1994. The district judge did not refer to the fact that Compton qualified for an addi- tional criminal history point on this basis, but "whether or not the district court ultimately relied upon this ground is inconsequential, as we may affirm on any basis that finds support in the record." United States v. Ross, 9 F.3d 1182, 1195 (7th Cir. 1993) (Rovner, J., concurring) (citing United States v. Thomas, 934 F.2d 840, 843 (7th Cir. 1991)). "In the review of judicial proceedings, the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason." Helvering v. Gowran, 302 U.S. 154, 158 (1937). We hold that the ultimate calcu- lation of Compton's sentence was correct, even though in- tervening case law (Phipps) has called into question the district judge's reasoning (i.e., his reliance on the "while in imprisonment" language).
To summarize: (1) Compton deserved two criminal his- tory points under sec. 4A1.1(d) for committing an offense "while under any criminal justice sentence" (i.e., electronic home detention), and (2) he merited an additional point under sec. 4A1.1(e) for committing an offense "less than two years after release from imprisonment." /12 The enhance- ments in subsections (d) and (e), as applied here, are premised on different conduct: the former punishes a de- fendant for committing a crime during the pendency of a criminal justice sentence, while the latter targets the criminal who commits other criminal acts shortly after release from incarceration (i.e., within two years). /13 The ap- plication of both of these subsections--as set forth here-- does not amount to double counting, which occurs "when identical conduct is described in two different ways so that two different adjustments apply." Haines, 32 F.3d at 293.
IV. CONCLUSION
After Phipps, it is clear (for purposes of the Guidelines) that the term "imprisonment" does not encompass elec- tronic home detention. Consequently, the additional crim- inal history point allocated to Compton may not rest on the "while in imprisonment" language of sec. 4A1.1(e). The additional point was nevertheless proper under that sub- section because Compton committed his offense within two years of release from imprisonment. The sentence of Josiah Compton is AFFIRMED.
* Hon. Walter Jay Skinner, District of Massachusetts, sitting by designation.