                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 08 2016

                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10062

              Plaintiff - Appellee,              D.C. No. 3:14-cr-8093-PCT-DLR

  v.                                             MEMORANDUM*

NORMAN GEORGE BEGAY, JR.,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Donald L. Rayes, District Judge, Presiding

                            Submitted March 17, 2016**
                             San Francisco, California

 Before: BYBEE and N.R. SMITH, Circuit Judges, and HELLERSTEIN,*** Senior
                            District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       ***
             The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
      Norman Begay entered a guilty plea, pursuant to a plea agreement with the

government on one count of assault resulting in serious bodily injury, in violation

of 18 U.S.C. § 113(a)(6), and received a sentence of 84 months imprisonment.

Begay raises two challenges to his sentence. He argues that the district court erred

by denying a downward adjustment in applying the Sentencing Guidelines, and

that the prosecutor breached the plea agreement.

1.    Begay contends the district court erred by denying a downward adjustment

for acceptance of responsibility, see U.S.S.G. § 3E1.1, finding that Begay's

pre-sentencing escape from a treatment center demonstrated a failure to accept

responsibility for the offense. The district court’s legal interpretation of the

guidelines is reviewed de novo and its related factual findings for clear error.

United States v. Jennings, 711 F.3d 1144, 1146 (9th Cir. 2013). “There is an

intracircuit split as to whether the standard of review for application of the

Guidelines to the facts is de novo or abuse of discretion.” United States v. Tanke,

743 F.3d 1296, 1306 (9th Cir. 2014) (citing United States v. Swank, 676 F.3d 919,

921-22 (9th Cir. 2012)). “There is no need to resolve this split where, as here, the

choice of the standard does not affect the outcome of the case.” Id.

      Under either a de novo or abuse of discretion standard, the district court

correctly concluded that an escape from a treatment center to which Begay had


                                           2
been ordered as a condition of release, after his entry of a guilty plea and before

sentencing, demonstrated a lack of acceptance of responsibility. The comments to

the guidelines provide that entry of a guilty plea “may be outweighed by conduct

of the defendant that is inconsistent with such acceptance of responsibility.”

U.S.S.G. § 3E1.1, cmt. n.3. A defendant's escape from custody is such inconsistent

conduct, for “[a] defendant who attempts to escape is clearly not accepting

responsibility for his crime.” See United States v. Chandler, 232 F. App'x. 703,

705 (9th Cir. 2007). Escaping during the process of punishment is inconsistent

with acceptance of responsibility, for “the certainty of . . . just punishment in a

timely manner” is no longer assured. Id. at 706 n.1 (quoting U.S.S.G. § 3E1.1,

Background Notes). The nature of Begay's escape, from a treatment facility rather

than from traditional confinement, does not change this analysis. We have

previously treated a defendant's escape from a treatment facility, “after he agreed

to conditions of release specified by the district court,” as analogous to an escape

from jail. United States v. Draper, 996 F.2d 982, 986 (9th Cir. 1993).1

“Regardless of whether he escaped from ‘custody’ in any technical sense of the


       1
          Though Draper addressed a district court’s imposition of an upward adjustment for
obstruction of justice under U.S.S.G. § 3C1.1, its analysis is also applicable to a district court’s
refusal to grant a downward adjustment for acceptance of responsibility under § 3E1.1. See
U.S.S.G. § 3E1.1, cmt. n.4 (“Conduct resulting in an enhancement under § 3C1.1 (Obstructing or
Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct.”).

                                                 3
word, [the defendant] undoubtedly ‘attempt[ed] to escape justice’ after having been

submitted to process.” Id. (quoting United States v. Mondello, 927 F.2d 1463,

1467 n.4 (9th Cir. 1991)).

2.    Begay also argues that the government breached the plea agreement by

arguing at the sentencing hearing that Begay was not entitled to the downward

adjustment for an acceptance of responsibility based on this conduct. See U.S.S.G.

§ 3E1.1. “We have not been entirely consistent in our standards for reviewing a

claim that the government breached a plea agreement.” United States v.

Alcala-Sanchez, 666 F.3d 571, 575 (9th Cir. 2012) (citing cases analyzing the

question both de novo and for clear error). But because “the result [here] is the

same under either standard, . . . we need not resolve the inconsistency.” Id. (citing

United States v. Ellis, 641 F.3d 411, 417 (9th Cir. 2011)). According to the terms

of the plea agreement, the government was obligated to recommend the downward

adjustment “[i]f the defendant makes a full and complete disclosure to the U.S.

Probation Office of the circumstances surrounding the defendant's commission of

the offense, and if the defendant demonstrates an acceptance of responsibility for

this offense up to and including the time of sentencing.” The government had no

obligation to recommend the downward adjustment where, as here, the defendant

had not satisfied the condition of acceptance of responsibility imposed on the


                                          4
government’s recommendation.

     AFFIRMED.




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