United States v. Blandin ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10316
Plaintiff-Appellee,
v.  D.C. No.
CR 04-0463 KJD
CHRISTOPHER THOMAS BLANDIN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted January 13, 2006*
San Francisco, California
Filed February 1, 2006
Before: John T. Noonan, A. Wallace Tashima, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Tashima
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
1257
UNITED STATES v. BLANDIN 1259
COUNSEL
Arthur L. Allen, Assistant Federal Public Defender, Las
Vegas, Nevada, for the defendant-appellant.
Christina M. Brown, Assistant United States Attorney, Las
Vegas, Nevada, for the plaintiff-appellee.
OPINION
TASHIMA, Circuit Judge:
Christopher Thomas Blandin (“Blandin”) appeals the sen-
tence imposed by the district court following his guilty plea
for escaping from a non-secure halfway house in violation of
18 U.S.C. § 751(a). Blandin argues that the district court erred
by denying him a seven-level reduction for voluntary return
under U.S.S.G. § 2P1.1(b)(2) because he had formed the sub-
jective intent to return to custody prior to his arrest. Blandin
further argues that the district court erred by relying upon
“testimonial hearsay” contained in his Pre-Sentence Investiga-
tion Report (“PSR”) in violation of his Sixth Amendment
right to confrontation.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). We conclude that Blandin does not qualify for a
sentencing reduction under § 2P1.1(b)(2) because he only
returned to custody after he was arrested for trespassing. We
further conclude that because Blandin’s arrest for trespassing
precludes a downward adjustment under § 2P1.1(b)(2), any
alleged “testimonial hearsay” error was harmless.
1260 UNITED STATES v. BLANDIN
BACKGROUND
Blandin was a resident of Clark Center, a non-secure half-
way house located in Las Vegas, Nevada. In October 2004,
Blandin left the center for a job interview. While away,
Blandin consumed alcohol in violation of the center’s rules.
Upon his return, Blandin failed an alcohol breath test and
realized that his violation would require him to serve addi-
tional jail time. Rather than comply, Blandin chose to escape
from Clark Center, reasoning that if he was going to be sent
back to jail, he wanted to at least “get some enjoyment out of
the process.”
Three days after his escape, a local business owner discov-
ered Blandin trespassing on his private property and called the
police. Blandin claims that he voluntarily waited for officers
to arrive and did not resist arrest. Although Blandin was
arrested for trespassing, the trespass charge was dropped, and
Blandin was instead charged with escape in violation of 18
U.S.C. § 751(a).1 Blandin subsequently pleaded guilty.
Blandin’s PSR listed a base offense level of 13, and recom-
mended a four-level reduction under U.S.S.G. § 2P1.1(b)(3)
because Clark Center was a non-secure facility. The PSR also
recommended a two-level reduction for acceptance of respon-
sibility.
1
In pertinent part, 18 U.S.C. § 751(a) reads:
Whoever escapes or attempts to escape from the custody of the
Attorney General or his authorized representative, or from any
institution or facility in which he is confined by direction of the
Attorney General, or from any custody under or by virtue of any
process issued under the laws of the United States by any court,
judge, or United States magistrate judge, or from the custody of
an officer or employee of the United States pursuant to lawful
arrest, shall, if the custody or confinement is by virtue of an arrest
on a charge of felony, or conviction of any offense, be fined
under this title or imprisoned not more than five years, or both.
UNITED STATES v. BLANDIN 1261
At the sentencing hearing, Blandin argued that he was enti-
tled to a seven-level reduction under § 2P1.1(b)(2), as
opposed to the four-level reduction granted by the district
court under § 2P1.1(b)(3), because he had voluntarily returned
to custody within 96 hours.2 Blandin contends that he had
formed the subjective intent to return voluntarily to custody
after only 24 hours, and that he was prevented from doing so
because he was drugged by a prostitute. The district court
denied the downward adjustment under § 2P1.1(b)(2).
Blandin timely appealed.
STANDARD OF REVIEW
We review the district court’s interpretation of the Sentenc-
ing Guidelines de novo, and its factual findings in the sentenc-
ing phase for clear error. United States v. Miguel, 368 F.3d
1150, 1154-55 (9th Cir. 2004).
DISCUSSION
I. Downward Adjustment Under § 2P1.1(b)(2)
[1] A seven-level downward adjustment under
§ 2P1.1(b)(2) is appropriate “[i]f the defendant escaped from
non-secure custody and returned voluntarily within ninety-six
hours.” U.S.S.G. § 2P1.1(b)(2). Blandin argues that he quali-
fies for a downward adjustment under § 2P1.1(b)(2) because
he intended to escape custody only for 24 hours, and he had
formed the subjective intent voluntarily to return prior to his
2
U.S.S.G. § 2P1.1(b)(2) provides:
If the defendant escaped from non-secure custody and returned
voluntarily within ninety-six hours, decrease the offense level
under § 2P1.1(a)(1) by 7 levels or the offense level under
§ 2P1.1(a)(2) by 4 levels. Provided, however, that this reduction
shall not apply if the defendant, while away from the facility,
committed any federal, state, or local offense punishable by a
term of imprisonment of one year or more.
1262 UNITED STATES v. BLANDIN
arrest. Blandin relies on United States v. Novak, 284 F.3d 986(9th Cir. 2002), where we held that “[a]n escape begins when
an inmate departs from lawful custody with the intent to
evade detection.” Id. at 990. From Novak, Blandin asks us to
infer that an escape ends when the escapee forms the subjec-
tive intent to return to custody.
[2] The question of what constitutes “voluntary return” for
purposes of § 2P1.1(b)(2) is an issue of first impression in this
Circuit. In United States v. Pynes, 5 F.3d 1139 (8th Cir.
1993), the Eighth Circuit addressed the question of whether
an escapee’s subjective intent to return to custody could qual-
ify for a downward adjustment under § 2P1.1(b)(2). Although
the defendant in Pynes had already arranged for a ride to turn
himself in when he was arrested by United States Marshals,
the district court nonetheless denied him a downward adjust-
ment under § 2P1.1(b)(2). Id. at 1140-41. The Eighth Circuit
affirmed the district court, explaining that the defendant had
not voluntarily turned himself in because he “surrendered
only when he saw deputy marshals crossing the street to find
and arrest him.” Id. at 1141.
[3] Similarly, in United States v. King, 338 F.3d 794, 799
(7th Cir. 2003), the Seventh Circuit held that an inmate’s
“willingness” to cooperate with the arresting officer was
insufficient to qualify for a downward adjustment under
§ 2P1.1(b)(2). There, the defendant had escaped from a non-
secure facility and was attempting to hide behind a highway
sign when he was spotted by an off-duty corrections officer.
Id. at 796. The officer pulled over and offered the defendant
a ride. Id. After initially accepting the offer, the defendant
moved closer to the vehicle and realized that the driver was
a corrections officer. Id. The officer informed the defendant
that he “had the choice of trying to run and almost certainly
being caught by U.S. marshals, or [getting] into the truck and
be[ing] transported back to the camp.” Id. Although the
defendant chose voluntarily to return to the prison camp, the
court held that the defendant’s “ ‘willingness’ to cooperate
UNITED STATES v. BLANDIN 1263
was not the type that § 2P1.1(b)(2) had in mind,” because he
only chose to return when faced with the prospect of being
arrested. Id. at 799.
[4] Like the defendants in Pynes and King, Blandin only
surrendered when he was faced with the prospect of being
arrested. Moreover, it is undisputed that Blandin did not vol-
untarily surrender as an escapee; Blandin admits that he was
trespassing on private property at the time of his arrest. As the
commentary to § 2P1.1 explains, “ ‘[r]eturned voluntarily’
includes voluntarily returning to the institution or turning
one’s self in to a law enforcement authority as an escapee (not
in connection with an arrest or other charges).” U.S.S.G.
§ 2P1.1 cmt. n.2 (emphasis added). We agree with the reason-
ing of the Seventh and Eighth Circuits and hold that regard-
less of whether Blandin had formed the subjective intent
voluntarily to surrender, his return to custody cannot be con-
sidered voluntary under § 2P1.1(b)(2) because his willingness
to cooperate arose in connection with his arrest for trespass-
ing. See id. cmt. n.2; King, 338 F.3d at 799; Pynes, 5 F.3d at
1141.3
II. Testimonial Hearsay Contained in PSR
Blandin argues that the district court erred by relying on a
contested statement in his PSR when denying his request for
a downward adjustment under § 2P1.1(b)(2).4 According to
Blandin, the statement was improper “testimonial hearsay” in
violation of his Sixth Amendment right to confrontation as
established by Crawford v. Washington, 541 U.S. 36 (2004).
3
The fact that Blandin was not ultimately charged with trespassing is
irrelevant because he admits to being arrested for trespass, which pre-
cludes a finding that he “returned voluntarily” under § 2P1.1(b)(2). See
U.S.S.G. § 2P1.1 cmt. n.2 (explaining that a defendant must turn himself
in “not in connection with an arrest or other charges”).
4
The contested statement reads: “Records of the U.S. Marshal s [sic]
reflect that the defendant attempted to elude police officers,” at the time
of his arrest.
1264 UNITED STATES v. BLANDIN
Blandin concedes, however, that he failed to raise a Confron-
tation Clause claim before the district court; therefore, we can
reverse only if we find plain error affecting Blandin’s sub-
stantial rights. See United States v. Olano, 507 U.S. 725, 732
(1993).
[5] Under Olano, Blandin bears the burden of showing that
any alleged error was prejudicial. Id. at 734. Blandin cannot
carry this burden, however, because any alleged error arising
from the district court’s consideration of the contested state-
ment was harmless. Even if Blandin had cooperated with the
arresting officers, he nonetheless would have failed to qualify
for a downward adjustment under § 2P1.1(b)(2) for the rea-
sons discussed in Part I, supra. Accordingly, we need not
reach the merits of Blandin’s Confrontation Clause claim.
CONCLUSION
We conclude that the district court did not err in denying
Blandin a seven-level downward adjustment under
§ 2P1.1(b)(2) because Blandin only returned to custody when
he was arrested for the separate offense of trespassing. For the
same reason, we also conclude that any alleged “testimonial
hearsay” error was harmless.
The sentence imposed by the district court is AFFIRMED.