                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          OCT 14 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 96-6175
                                                    (D.C. No. CR-95-131-C)
    JAMES PAUL MANGHAM,                                   (W.D. Okla.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT *


Before BRORBY, LOGAN, and HENRY, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant James Paul Mangham appeals his sentence, imposed after he

pleaded guilty to distributing methamphetamine. He argues that the district court

erred in assessing three criminal history points related to his former conviction

for negligent homicide. Because the district court did not err in finding that

defendant was on escape status when he committed the drug offense, we affirm.

      In July 1989, defendant was convicted of negligent homicide and received a

one-year sentence. Defendant posted bond and remained at liberty while his case

was pending before the Oklahoma Court of Criminal Appeals. On September 5,

1993, the appellate court affirmed defendant’s conviction. Defendant’s attorney

mailed him notice of the decision, but the letter was returned undelivered.

Further investigation revealed that defendant’s address was not listed in the phone

book and his number was unpublished. A second letter was returned to defen-

dant’s attorney in November 1993 with a notation that defendant’s forwarding

address had expired. Defendant did not report to serve his sentence and on

December 9, 1993, a bench warrant was issued for his arrest.

      Defendant was arrested for the instant federal drug offense in late Septem-

ber 1995. At sentencing the district court assessed two criminal history points for

committing the offense while on escape status, pursuant to USSG § 4A1.1(d), and

one criminal history point for committing the offense within two years of the date




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he would have been released had he served his negligent homicide sentence,

pursuant to USSG § 4A1.1(e). Defendant appealed.

      Defendant argues that the district court erred in finding him in escape

status because he has never been confined, and because the government did not

show that he intentionally failed to report to serve his sentence. He argues further

that the plain language of the Sentencing Guidelines does not authorize the court

to calculate when defendant would have been released from imprisonment had he

served his sentence, requiring instead an actual release date. In reviewing the

district court’s application of the Sentencing Guidelines, we review its factual

determinations for clear error and its legal conclusions de novo. See United

States v. Guerrero-Hernandez, 95 F.3d 983, 986 (10th Cir. 1996).

      Section 4A1.1(d) of the Sentencing Guidelines requires assessment of two

criminal history points if a defendant committed the offense for which he is being

sentenced while under any criminal justice sentence, including a sentence from

which he has escaped. Failure to report for service of a sentence is treated as an

escape from such sentence. 1 See USSG § 4A1.2(n); id., § 4A1.1, comment. (n.4).

It is undisputed that defendant failed to report when required to serve his sentence




1
      Oklahoma state law, requiring that a prisoner first be in custody before he
can be guilty of escape, is irrelevant to defendant’s sentencing under the federal
guidelines.

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of imprisonment. The Sentencing Guidelines do not require a showing that

defendant’s failure to report was knowing or intentional.

      Even if we were inclined to read an intent requirement into the Sentencing

Guidelines it would be met here. For more than two years after his conviction

was affirmed, defendant failed to inform his attorney of his whereabouts or to

apprise himself of the status of his case. Under these circumstances defendant’s

failure to report can be deemed knowing or intentional. See United States v.

Martinez, 890 F.2d 1088, 1093 (10th Cir. 1989) (discussing failure to surrender

for sentence after conviction affirmed on appeal; noting that “[a] person released

on [appeal bond] can be charged with a gross deviation from the standard of

conduct applicable to the ordinary person when he fails to keep in touch with the

status of his case or places himself out of reach of the authorities and his attor-

ney.”) (quotation omitted); United States v. Yates, 698 F.2d 828, 830-31 (6th Cir.

1983) (holding defendant could be convicted of wilfully failing to report to serve

his sentence based on his conduct of moving from his former address, not notify-

ing his attorney of his whereabouts, and using a false name).

      Because USSG § 4A1.1(e) authorizes imposition of a criminal history point

if the offense was committed while defendant was in escape status from a sen-

tence of at least sixty days, we need not determine whether the district court erred

in assessing a point based on defendant’s commission of the offense within two


                                          -4-
years of the date he would have been released had he reported to serve his

sentence.

      AFFIRMED.

                                      Entered for the Court

                                      James K. Logan
                                      Circuit Judge




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