                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4945


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DEAN EDWARD WHITMAN, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:10-cr-00051-IMK-JSK-1)


Submitted:   April 21, 2011                   Decided:   May 11, 2011


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, Kristen Leddy, Research and Writing Specialist,
Martinsburg,  West   Virginia,  for   Appellant.     William  J.
Ihlenfeld, II, United States Attorney, Brandon S. Flower,
Assistant United States Attorney, Clarksburg, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Dean Edward Whitman, Jr., pled guilty to escape, in

violation of 18 U.S.C. § 751 (2006), and was sentenced to a term

of    twenty-four          months’      imprisonment.               Whitman      appeals       his

sentence, contending that the district court erred in denying

him   a   four-level         reduction        under        U.S.    Sentencing       Guidelines

Manual (USSG) § 2P1.1(b)(3) (2009), for escape from the non-

secure    custody       of   a     community        corrections         center     or    similar

facility.       We affirm.

               On April 15, 2010, while Whitman was confined at the

Federal   Correctional            Institution         in    Morgantown,       West      Virginia

(FCI-Morgantown), he was taken to Ruby Memorial Hospital for an

unescorted       medical      appointment.               After     he   was    dropped        off,

instead    of    entering         the   hospital,          Whitman      walked     across      the

street    to    the     parking      lot      where      his      girlfriend     was    parked.

Whitman got into her car and they drove away.                                      Whitman was

located with his girlfriend at a motel in Ohio that evening.

               When    he    was    sentenced,        Whitman        sought    a    four-level

reduction       under      USSG    § 2P1.1(b)(3),            which      applies     “[i]f     the

defendant escaped from the non-secure custody of a community

corrections       center,          community         treatment          center,      ‘half-way

house,’    or     similar         facility,        and     subsection      (b)(2)       is    not

available.”           In     Whitman’s         case,       subsection      (b)(2)       was   not

available;       it     provides        for    a    four-level          reduction       if    the

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defendant       escaped      from     non-secure            custody        and        returned

voluntarily       within    ninety-six      hours.           Application            Note    1    to

§ 2P1.1     defines      “non-secure        custody”         as     “custody          with      no

significant physical restraint” and gives as examples of escape

from    non-secure       custody     “walk[ing]        away       from    a    work        detail

outside     the     security        perimeter          of    an     institution; . . .

fail[ure] to return to any institution from a pass or unescorted

furlough;     or . . .       escap[ing]         from    an     institution            with       no

physical    perimeter       barrier[.]”           Whitman         argued      that     he       had

escaped from the hospital, and that it was a non-secure facility

similar to a community treatment center.                      However, the district

court   found     that     Whitman    was   not    eligible         for       the    reduction

because he had escaped from FCI-Morgantown, a secure facility.

            Whether § 2P1.1(b)(3) applies in Whitman’s case is an

issue that requires interpretation of a Guideline.                             The district

court’s decision is therefore reviewed de novo.                               United States

v. Sarno, 24 F.3d 618, 623 (4th Cir. 1994).                         In Sarno, we held

that the reduction under subsection (b)(3) applies if (1) the

defendant escaped from a non-secure facility, but only when (2)

the non-secure facility is similar to a community corrections

center or other facility listed in subsection (b)(3).                                      Id. at

623-24.

            Initially, it may be helpful to note that the term

“non-secure custody,” as it is used in § 2P1.1, may mean either

                                            3
a temporary state, as when an inmate being held in a secure

facility is on a work detail or unsupervised furlough, or a

permanent state resulting from the inmate’s assignment to a non-

secure     facility.         A    defendant         seeking      a    reduction              under

subsection (b)(3) must “show not only that he escaped from non-

secure custody, but also that he was confined in a facility

expressly    specified       in   subsection           (b)(3)    or     in       one    similar

thereto.”     United States v. Helton, 127 F.3d 819, 821 (9th Cir.

1997) (holding that defendant who walked away from work detail

outside    security     perimeter       of       federal       prison     camp         was    not

entitled     to   reduction       under          subsection      (b)(3)          because       he

remained in custody of prison camp, a secure facility); United

States v. Tapia, 981 F.2d 1194, 1197-98 (11th Cir. 1993) (same;

treating escape from work detail outside security perimeter of

prison camp as escape from prison camp).

            Whitman     argues      that     he        escaped    from       a    non-secure

facility    because     he    escaped      from        the    hospital.           He    further

argues that he met the second requirement because the hospital

was a facility similar to a community corrections center and the

other    facilities     enumerated      in       subsection      (b)(3).           Whitman’s

first    assertion     is    incorrect.           As    the   district       court       found,

Whitman was always in the custody of FCI-Morgantown, which was

held in Sarno to be a secure facility.                        Sarno, 24 F.3d at 624.

He was never in the custody of the hospital.                          Despite Whitman’s

                                             4
persistent      argument        that      he    was    furloughed             to    Ruby    Memorial

Hospital, he never produced evidence of a change in his status

as an inmate of FCI-Morgantown, nor could he.

               Whitman relies on Application Note 1, arguing that the

reduction       applies      if      a    defendant         fails        to        return    to     any

institution as long as he was on an unescorted furlough from

that     institution         at     the        time    of     the        escape.            However,

Application Note 1 merely defines the term “non-secure custody”

as it is used in both subsection (b)(2) and (b)(3).                                    See Helton,

127    F.3d    at    821     (“The       Note    has    no    effect          upon     the       second

requirement         of   section     2P1.1(b)(3)            that    an        escape    from       non-

secure    custody        must     also     be    from       one    of        the    enumerated       or

similar    facilities         specified         in    that    subsection.”).                 Because

Whitman was in custody in a secure facility, the fact that he

walked away while on an unescorted furlough from that facility

does not make him eligible for the reduction under subsection

(b)(3).       In his reply brief, Whitman complains that under this

“strained interpretation, no defendant designated to a secure

Bureau of Prisons facility could ever get the benefit of the

subsection          (b)(3)        reduction,           even        if        later      furloughed

elsewhere.”         He is right, and this result is a consequence of

the    plain    meaning      of    subsection          (b)(3),          as    Helton       and    Tapia

held.



                                                 5
              We   therefore    affirm       the   sentence    imposed     by    the

district    court.     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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