United States v. Timbrook, Michael ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-3646
United States of America,
Plaintiff-Appellee,
v.
Michael Timbrook,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 00 CR 10060--Michael M. Mihm, Judge.
Argued April 8, 2002--Decided May 29, 2002
Before Bauer, Easterbrook and Williams,
Circuit Judges.
Bauer, Circuit Judge. The sole issue
raised in this appeal is whether a
sentence of work release in a county jail
is a "sentence of imprisonment" as that
term is used in section 4A1.1(b) of the
United States Sentencing Guidelines.
Appellant Michael Timbrook was convicted
of one count of mail fraud and one count
of money laundering. At sentencing, the
district court imposed a two-point
enhancement pursuant to section 4A1.1(b)
of the Guidelines for a prior sentence of
imprisonment. As a result, Timbrook was
sentenced to 41 months imprisonment,
followed by three years supervised
release. He appeals this sentence and for
the following reasons, we affirm.
BACKGROUND
On January 17, 2001, Michael Timbrook
was charged with 15 counts of mail fraud,
in violation of 18 U.S.C. sec. 1341, six
counts of money laundering, in violation
of 18 U.S.C. sec. 1956(a)(1)(A)(i), five
counts of money laundering, in violation
of 18 U.S.C. sec. 1957(a) and two counts
of bank fraud, in violation of 18 U.S.C.
sec. 1344. He subsequently pled guilty to
one count of mail fraud and one count of
money laundering.
At Timbrook’s sentencing, pursuant to
section 4A1.1(b) of the Sentencing
Guidelines, the probation officer
recommended a two-point criminal history
enhancement based on a 1989 conviction
for which Timbrook was sentenced to four
years probation, including six months of
work release. Section 4A1.1(b) provides
for a two-point enhancement for "each
prior sentence of imprisonment of at
least sixty days." Timbrook objected to
the enhancement, arguing that section
4A1.1(b) does not apply because his 1989
sentence to work release did not
constitute a "sentence of imprisonment"
as that term is used in the Guidelines.
Nevertheless, the district court accepted
the probation officer’s recommendation in
favor of the enhancement, holding that
Timbrook’s 1989 sentence to work release
was a "prior sentence of imprisonment."
As a result, Timbrook was sentenced to 41
months imprisonment, followed by three
years supervised release.
Judge Michael Mihm served as the
district court judge in the instant case
and was the sentencing judge in
Timbrook’s prior 1989 conviction as well.
In granting the two- point enhancement
for the prior sentence, Judge Mihm
recalled that his intention in Timbrook’s
1989 conviction was to impose the work
release as a substitute for 24-hour
confinement; however, Timbrook was to be
locked up in the county jail when he was
not at work. Judge Mihm also stated that
in his mind, there is "a big difference
between ordering someone into a work
release setting as opposed to a treatment
setting or halfway house." For these
reasons, Judge Mihm determined that
section 4A1.1(b) applies to Timbrook’s
case. Timbrook appeals this decision of
thedistrict court.
DISCUSSION
Section 4A1.1(b) of the Guidelines
provides that a defendant receives a two-
point enhancement for a "prior sentence
of imprisonment of at least sixty days."
Under section 4A1.1(c), a prior sentence
not involving imprisonment receives only
one point. Timbrook’s sole argument in
this appeal is that the 1989 sentence to
work release warrants only a one point
enhancement, not two, because a sentence
of work release in a county jail is not
a sentence of imprisonment under section
4A1.1(b). We review the district court’s
interpretation of the Sentencing
Guidelines de novo. United States v.
White, 222 F.3d 363, 372 (7th Cir. 2000).
The Guidelines shed little light on what
defines "imprisonment." Section 4A1.2(b)
only defines "sentence of imprisonment"
as "a sentence of incarceration." Comment
2 provides that "to qualify as a sentence
of imprisonment, the defendant must have
actually served a period of imprisonment
on such sentence." U.S.S.G. sec. 4A1.1(2),
cmt. n.2. The comment also states that a
sentence of probation falls within the
scope of section 4A1.1(b) if a condition
of the probation is imposed that requires
imprisonment of at least 60 days. Id.Using these comments as a guide, we hold
that a sentence of work release in a
county jail is a sentence of imprisonment
for purposes of section 4A1.1. Although
the 1989 sentence was probation, as a
condition of the probation, the court
imposed work release with incarceration
in a county jail. Judge Mihm noted that
his intention was that Timbrook would be
locked up when he was not at work.
Regardless of the work release provision,
Timbrook was sentenced to a secure
facility and, as such, the district court
correctly held that Timbrook’s 1989
sentence warrants a two-point
enhancement.
Two other circuits tackled this issue
under similar facts and arrived at the
same conclusion. In United States v.
Ruffin, 40 F.3d 1296 (D.C. Cir. 1994),
the defendant had a prior conviction for
which he was sentenced to "the custody of
the Attorney General . . . for
imprisonment for a period of (1) one
year. Work release ordered. Hours: 6:00
AM thru 6:00 PM Monday thru Friday." The
district court gave the defendant a two-
point enhancement under section 4A1.1(b)
because, despite the work release order,
the defendant’s prior sentence was a
sentence of imprisonment. The D.C.
Circuit affirmed stating, "[the
defendant] was imprisoned from 6:00 p.m.
to 6:00 am daily . . . his sentence
involved a term of imprisonment [and] his
work release was part of the term of
imprisonment." Id. at 268. Likewise, in
United States v. Brooks, 166 F.3d 723,
726 (5th Cir. 1999), the defendant was
previously sentenced to boot camp. The
Fifth Circuit held that this prior
sentence was incarceration for purposes
of section 4A1.1(b) because the defendant
was not free to leave.
In our case, Timbrook’s work release
order was only a part of his sentence of
imprisonment. Although he was permitted
to leave for purposes of his work,
Timbrook was incarcerated for the
remainder of the time. This amounts to
imprisonment for purposes of section
4A1.1(b).
Timbrook maintains that a sentence of
work release is not a "sentence of
imprisonment" because it is analogous to
a community treatment center or a halfway
house, both of which are not deemed
"imprisonment" under the Guidelines.
Timbrook relies upon two cases, United
States v. Latimer, 991 F.2d 1509 (9th
Cir. 1993), and United States v. Pielago,
135 F.3d 703 (11th Cir. 1998), in support
of his position. Both cases hold that
confinement in a community treatment
center is not "incarceration" within the
meaning of the Guidelines provisions. A
community confinement center or a halfway
house is not a "secure jail facility" al
most by definition. "Houses" and
"Treatment Centers" are not supposed to
be jails. Timbrook was not sentenced to a
community treatment center or a halfway
house, but to a secure jail facility.
Judge Mihm properly highlighted this as a
determining factor when he granted the
two-point enhancement in the proceedings
below. Even with the work release order,
Timbrook’s 1989 sentence is more akin to
confinement in a conventional prison
facility than a community treatment
center or halfway house. Accordingly,
section 4A1.1(b) applies and a two-point
enhancement is appropriate.
CONCLUSION
For the foregoing reasons, we AFFIRM
Timbrook’s sentence.