United States v. Kokoski

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4389
MICHAEL KOKOSKI,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Robert C. Chambers, District Judge.
(CR-96-64)
Submitted: November 30, 2000
Decided: December 19, 2000
Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Acting Federal Public Defender, Edward H.
Weis, First Assistant Federal Public Defender, Charleston, West Vir-
ginia, for Appellant. Rebecca A. Betts, United States Attorney, John
L. File, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
2 UNITED STATES v. KOKOSKI
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael Kokoski was convicted pursuant to his guilty plea of fel-
ony escape from a federal institution. On appeal, he alleges that the
district court erred in sentencing him as a career offender pursuant to
USSG § 4B1.11 because his escape was not a "crime of violence."2
Kokoski also alleges that he was entitled to a downward adjustment
under USSG § 2P1.1(b)(3) because his escape was non-violent. Find-
ing no reversible error, we affirm.
Kokoski was convicted in 1994 of using a minor to distribute
drugs, and he was sentenced to serve 144 months in prison. In March
1996, Kokoski was transferred to a minimum security prison camp.
Approximately one month later, Kokoski simply walked out of the
camp. It is undisputed that Kokoski was not confronted during his
escape, nor did he have to negotiate any physical barriers. Kokoski
was arrested on unrelated charges in Montana in 1999, where he was
living under a false name. A fingerprint analysis confirmed Kokoski’s
identity.
We review the district court’s application of the guidelines de novo
and find no error. United States v. Daughtrey, 874 F.2d 213, 217 (4th
Cir. 1989). We have consistently held that felony escape is, by its
very nature, a crime of violence because, even if accomplished by
stealth, there is always the potential for a violent confrontation.
United States v. Hairston, 71 F.3d 115, 118 (4th Cir. 1995). Kokoski
alleges that the minimal security found at federal prison camps justi-
fies an exception from this general rule. The Fifth Circuit rejected this
very argument in a factually similar case. See United States v. Ruiz,
180 F.3d 675, 676-77 (5th Cir. 1999). The focus is on the crime of
1
U.S. Sentencing Guidelines Manual (1998).
2
See USSG § 4B1.2(a).
UNITED STATES v. KOKOSKI 3
conviction (escape), not on an ex post analysis of whether any acts of
violence actually occurred. Id.
We further reject Kokoski’s assertion that he is entitled to a down-
ward adjustment under USSG § 2P1.1(b)(3). To prevail, Kokoski
must show that the prison camp is a non-secure facility and that the
camp is similar to a community corrections center, community treat-
ment center, or halfway house. United States v. Sarno, 24 F.3d 618,
623 (4th Cir. 1994). While the prison camp here was clearly a non-
secure facility, Kokoski fails to satisfy the second prong of the test.
See Sarno, 24 F.3d at 623-24 & nn.4-5 (holding in dicta that federal
prison camps are not similar to community treatment centers or half-
way houses for purposes of the adjustment). Those circuits which
have addressed this issue have reached the same conclusion. See, e.g.,
Ruiz, 180 F.3d at 676; United States v. Stalbaum, 63 F.3d 537, 540
(7th Cir. 1995).
Accordingly, we affirm Kokoski’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED