                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5189


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERT PADGETT, a/k/a Snoop,

                Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:09-cr-00160-1)


Submitted:   September 8, 2010            Decided:   October 7, 2010


Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, J. Christopher
Krivonyak, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Robert Laver Padgett pleaded guilty to one count of

escape,   in     violation        of    18   U.S.C.    § 751(a)        (2006),        and   was

sentenced      to    24     months’       imprisonment.           On       appeal,    Padgett

contends that the district court erred in not granting him a

four-level       offense        reduction      under   United         States      Sentencing

Guidelines Manual § 2P1.1(b)(3) (2008) for escaping from “non-

secure custody.”            Given the circumstances of Padgett's escape,

we agree with the district court that Padgett is not eligible

for the reduction.             We accordingly affirm.

            In       1998,      Padgett      was    convicted         of    conspiracy        to

possess   and       distribute         crack    cocaine     and       sentenced       to    188

months’     imprisonment.              On    January      14,     2009,       Padgett       was

transferred      from      the    Bureau       of   Prisons      to    Bannum        Place,    a

halfway house in Rand, West Virginia.                       On June 11, 2009, two

Deputy United States Marshals arrived at Bannum Place to return

Padgett and several other residents back to Bureau of Prisons

custody for rules violations.                  After a Marshal woke Padgett and

requested      that       he    accompany       him    to     the      dayroom,       Padgett

requested      and    was       granted      permission     to      use     the      restroom.

Padgett then walked to the dayroom with the Marshal.                                   As the

Marshal moved forward to place restraints on Padgett, Padgett

took off running through the front door and into the parking

lot.   Padgett ignored the Marshals’ orders to stop and headed

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into a wooded area at the back of a parking lot.                                One of the

Marshals pursued Padgett and caught up with him after both men

slid down an embankment.              Padgett resisted the Marshal’s efforts

to handcuff him, and the Marshal tasered Padgett.                              Padgett was

then    taken     back    to    Bannum      Place     without         further       incident.

According to Padgett, he was attempting to throw his cell phone

and cell phone charger — both contraband — into the river and

was not actually attempting to escape the Marshals’ custody.

              Padgett    was     charged       with   one       count    of     escape,    in

violation of 18 U.S.C. § 751(a).                   After Padgett pleaded guilty,

a probation officer prepared a Presentence Report (PSR).                                  The

PSR    calculated    a    base    offense         level    of   13,     with    a    criminal

history      category    III.        The   PSR     then    recommended         a    two-level

reduction for acceptance of responsibility and, originally, a

four-level      reduction       under      U.S.    Sentencing         Guidelines      Manual

§ 2P1.1(b)(3)       because          Padgett       escaped       from     a        non-secure

facility.       The Government objected to this latter determination,

and    the    probation     officer        agreed,        removing      that       four-level

reduction.

              At sentencing, the district court declined to give the

two-level       reduction      for    acceptance          of    responsibility.           The

district court also overruled Padgett’s objection to the PSR’s

rejection of the § 2P1.1(b)(3) reduction.                          The district court

concluded that, although Bannum Place was a non-secure facility,

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custody had been transferred to the United States Marshals at

the time of the escape, creating a more significant confinement

than § 2P1.1(b)(3) permitted.              With an offense level of 13 and a

criminal history category of III, the district court calculated

Padgett’s    advisory        Guidelines           range       as     18    to     24     months’

imprisonment.         After    permitting           argument         on     an    appropriate

sentence    and     hearing    a    statement         from         Padgett       himself,      the

district    court    sentenced      Padgett         to    24       months’       imprisonment.

Padgett noted a timely appeal.

            On    appeal,     Padgett      argues         that       the    district       court

erred in failing to apply the § 2P1.1(b)(3) reduction in this

case.    In reviewing any sentence, “whether inside, just outside,

or    significantly      outside     the      Guidelines            range,”       we    apply    a

“deferential      abuse-of-discretion              standard.”              Gall    v.     United

States, 552 U.S. 38, 41 (2007).                     We first “ensure[] that the

district court committed no significant procedural error.”                                     Id.

at 51.      “If, and only if, we find the sentence procedurally

reasonable can we ‘consider the substantive reasonableness of

the   sentence     imposed    under      an       abuse-of-discretion             standard.’”

United   States     v.   Carter,     564      F.3d       325,      328     (4th    Cir.    2009)

(quoting    Gall,    552     U.S.   at     51).          “A     sentence         based    on    an

improperly        calculated        guidelines            range           will     be      found

unreasonable and vacated.”            United States v. Abu Ali, 528 F.3d

210, 260 (4th Cir. 2008).

                                              4
              We    review     a    district        court’s    interpretation        of   the

Guidelines de novo.                United States v. Maroquin-Bran, 587 F.3d

214,   217    (4th     Cir.    2009).          In    interpreting        the   Guidelines,

ordinary     rules     of     statutory      construction        apply.        See    United

States v. Stokes, 347 F.3d 103, 105 (4th Cir. 2003).                               Thus, we

give   a      Guideline        “its     plain        meaning,       as    determined       by

examination of its ‘language, structure, and purpose.’”                                   Id.

(quoting United States v. Horton, 321 F.3d 476, 479 (4th Cir.

2003)).        We      also        examine     the     commentary        accompanying      a

Guideline,         which    “is     authoritative          unless    it    violates       the

Constitution or a federal statute, or is inconsistent with, or a

plainly      erroneous       reading     of,       that    guideline.”         Stinson     v.

United States, 508 U.S. 36, 38 (1993).

              United       States     Sentencing          Guidelines      Manual     § 2P1.1

provides the offense level for escape, setting a base offense

level of 13.          U.S. Sentencing Guidelines Manual § 2P1.1(a)(1).

The Guideline provides a four-level reduction, however, “[i]f

the defendant escaped from the non-secure custody of a community

corrections center, community treatment center, ‘halfway house,’

or   similar       facility.”          Id.   § 2P1.1(b)(3).              The   Guidelines’

commentary     provides        that     “‘non-secure          custody’     means     custody

with no significant physical restraint.”                        Id. § 2P1.1 cmt. n.1.

The commentary provides as an example a “defendant walk[ing]

away from a work detail outside the security perimeter of an

                                               5
institution,” a defendant “escap[ing] from an institution with

no physical perimeter barrier,” and a defendant who “failed to

return to any institution from a pass or unescorted furlough.”

Id.

             On     appeal,      Padgett     argues         that   by    the    terms   of

§ 2P1.1(b)(3),       he    qualifies    for       the    reduction       because   Bannum

Place is a “halfway house.”                  In contrast, the district court

found that, because the Marshals were on hand to restrain and

transfer Padgett back to a secure facility, the reduction did

not apply.        In light of the facts and circumstances of this

case,   we   agree     with      the   district         court.      “Secure      custody”

includes “custody in which a person is constrained by a secure

perimeter,     in    the    custody     of       an   armed    guard,      or   otherwise

physically restrained from departing an area.”                          United States v.

Pratt, 568 F.3d 11, 22 n.10 (1st Cir. 2009); see also United

States v. Piccolo, 441 F.3d 1084, 1089 (9th Cir. 2006) (noting

“[w]hile an escapee who flees a secured facility or the custody

of an armed guard presents a serious risk of injury to himself

and others, the same cannot be said for an escapee who leaves a

halfway      house        with    permission          and     fails       to    return”).

Accordingly, although Bannum Place is a non-secure facility and

halfway house, because Padgett was in the care and custody of

the Marshals — armed guards — at the time of his escape, the

reduction does not apply.

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           Accordingly, we affirm the district court's judgment.

We   dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                  AFFIRMED




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