                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 01-3271EM
                                  _____________

Cassaundra Hayes,                       *
                                        *
             Appellant,                 * On Appeal from the United
                                        * States District Court for
      v.                                * the Eastern District of
                                        * Missouri.
                                        *
United States of America,               * [To Be Published]
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: February 12, 2002
                                Filed: February 22, 2002
                                 ___________

Before BOWMAN, RICHARD S. ARNOLD, and WOLLMAN, Circuit Judges.
                          ___________


RICHARD S. ARNOLD, Circuit Judge.

       Cassaundra Hayes was arrested on an indictment for bank fraud, in violation
of 18 U.S.C. § 1344(1), (2). She was released on a $10,000 unsecured bond, but the
release was subject to conditions, among which was a requirement that she reside at
a halfway house, Metropolitan Employment and Rehabilitation Services, in St. Louis.
The order containing this requirement was signed on April 30, 2001. On that same
day, Ms. Hayes failed to report to the halfway house, nor did she telephone its staff
to advise of her location. A warrant for her arrest was issued, and she was arrested
again about ten days later. The question presented is whether the defendant's
absconding from the halfway house is an obstruction of justice within the meaning
of U.S. Sentencing Guideline § 3C1.1(A), authorizing a two-level enhancement in the
computation of her offense level for sentencing purposes.

      The relevant portion of the Guidelines authorizes a two-level enhancement

             If (A) the defendant willfully obstructed or impeded, or
             attempted to instruct or impede, the administration of
             justice during the course of the investigation, prosecution,
             or sentencing of the instant offense of conviction . . ..


U.S.S.G. § 3C1.1 (2000). Application Note 4 to this Guideline contains a non-
exhaustive list of examples of the types of conduct to which this adjustment applies.
One such example, Application Note 4(e), is "escaping or attempting to escape from
custody before trial or sentencing . . .." Ms. Hayes takes the position that required
residence at a halfway house is not "custody" within the meaning of this Note.

       We cannot agree. Two Circuits have held that absconding from a halfway
house is an escape from "custody" for this purpose. United States v. Swanson, 253
F.3d 1220 (10th Cir.), cert. denied, 122 S. Ct. 490 (2001); United States v. Draper,
996 F.2d 982 (9th Cir. 1993). We find the reasoning of these opinions sound, and we
are, in any event, reluctant to create a conflict in the Circuits on such an issue.
Certainly the requirement that one reside in a halfway house is a substantial restraint
on one's liberty. To be sure, there are degrees of confinement. A halfway house is
less confining than a jail or a prison. But to use the term "in custody" to describe
someone residing in a halfway house under these conditions is not at all surprising.

       Defendant points out, and rightly so, that required residence in a halfway house
is not considered "custody" for certain other purposes, for example, the felony of
escape from custody under 18 U.S.C. § 751. See Swanson, supra, 253 F.3d at 1223-

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24. Cf. Reno v. Koray, 515 U.S. 50 (1995) (time spent at a community treatment
center is not "official detention" within the meaning of 18 U.S.C. § 3585, so as to
require credit for time served against a sentence of imprisonment later imposed). But
a legal term does not have to mean the same thing in every context. Here, treating a
requirement of residence at a halfway house as "custody" serves the purposes of the
obstruction-of-justice Guideline. One of the reasons for the defendant to reside at
Metropolitan Services was "to keep tabs on [her] and to know what her whereabouts
were pending trial," so as to increase the likelihood of her appearance at trial when
ordered. Sentencing Transcript 7. The District Court1 continued:

             By absconding from MERS [Metropolitan Services], Miss
             Hayes attempted to thwart the Court's efforts in that regard;
             that is, to reasonably assure her appearance . . ..


       Defendant also contends that the Guideline, if interpreted to apply to her
conduct, is unconstitutional. The fact of her absconding (which, by the way, she does
not seem to deny), she argues, did not have to be tried to a jury, nor proved beyond
a reasonable doubt. All of this is true enough. It is also true of every other guideline
enhancement, so long as the statutory maximum penalty is not exceeded, which it was
not here. Such procedures have long been routinely upheld under the Sentencing
Guidelines. The constitutional argument is without merit. The requirement of
residence at MERS was plain and unambiguous. Clear notice to the defendant of the
requested enhancement was given, and she had an opportunity to make whatever
arguments of law or fact against the enhancement she chose. Due process was
satisfied.




      1
       The Hon. Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.

                                          -3-
      The effect of the two-level enhancement in the present case was a sentence of
24 months in prison. (Apparently the sentence would have been 18 months without
the enhancement.) We see no error of law in the action of the District Court. The
judgment is affirmed.

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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