*1 not err Thus, did district court stock. summary judgment by granting
defendants.8
IV.
CONCLUSION by granting not err court did district because for defendants
summary judgment Waggoner’s support not does
the record personal was his that Lutzker
assertion Further, did court the district attorney. Wag- to York law applying New err choice to California’s pursuant
goner’s case Finally, the district analysis.
of law summary judgment by granting not err
did did Waggoner because
for the defendants regard- of fact a triable issue present Waggoner to is liable Lutzker
ing whether are Thus, the defendants party.
as a third as a matter summary judgment
entitled
of law.
AFFIRMED. America, STATES
UNITED
Plaintiff-Appellee, LATIMER, Defendants Loren
Bruce
-Appellant.
No. 91-50420. Appeals, Court
Ninth Circuit. 17, Aug. 1992.
Argued and Submitted April 1993.
Decided case, up doc- although drew the Lutzker instant Prudential Waggoner contends appeal, On pre- alleged effectuating transfer attorney uments liability scope for an expands the Waggoner at the direction stock ferred Staar, law and party New York a third Wag- client, evidence is no there pursuant Waggoner Lutzker is liable beneficiary of those goner was the intended holding See 590 N.Y.S.2d case. of that specifically up them drew impact Lutzker documents. not determine need N.E.2d 318. We however, reason to believe He had no law, client. for his be- York on New of Prudential exclusively docu- rely on Waggoner would distinguishable of Prudential Waggoner’s cause the facts Staar, light particularly drafted ments he court in case. The those in at the had announced duty that Lutzker of the fact lawyer has that a found Prudential that he meeting December lawyer an Board drafts party when care to a third Wag- direction, and not to Staar as counsel specifical- was there goner. opinion his client's letter at rely Id. party on. ly for the third
I qualifies A defendant as a career present offender if the offense is a crime of prior violence and if the defendant has two convictions crimes violence. prior may U.S.S.G. 4B1.1. A conviction only be counted if the convictionresulted in during any the defendant's incarceration part years prior of the 15 to the commis present sion of offense. Id. at 4A1.2(e)(1). Gunn, Canton F. Asst. Federal Public Defender, Angeles, CA, dispute Los for defendant- Latimer does not that his current appellant. offense, robbery, armed bank is a crime of dispute violence. Nor does he that he has Byrne, Jr., Atty., John J. Asst. U.S. Los may conviction which be counted Angeles, CA, plaintiff-appellee. toward career offender status. Latimer's
challenge is to the district court's decision to count several bank robberies he commit- falling 15-year ted in 1967 as within the window. NORRIS, REINHARDT, Before: The now before us is whether TROTT, Judges. Circuit community Latimer's confinement treatment center for three months in following parole NORRIS, Judge: the revocation of his WILLIAM A. convictions, his 1967 constituted incarcera- Appellant challenges Bruce Latimer his meaning 4A1.2(e)(1). tion under the If classification as a career offender under did, properly then Latimer was classified Sentencing § 4B1.1 of the Guidelines fol offender; not, as a career if it did then he lowing his 1991 conviction for armed bank years longer was sentenced to for 15 robbery during and for use of a firearm than he deserves. desig crime of violence.1 Because he was government suggests possible two nated a career offender the district grounds alternative on which to base a court, period Latimer was sentenced to a finding that Latimer was incarcerated in years prison, and 10 months in followed parole connection with his 1979 revocation. by 5-year supervised term of release. Of First, government argues that Latim- nearly years prison, Latimer's 15 of er's three-month detention in the Utah years solely these came as a result of his Community Improvement Program, a com- being classified as a career offender. munity center, following the rev- imprisoned parole Whether Latimer is to be an ocation of his should be counted as incarceration under the Guidelines. In the additional 15 as a career offender turns, principally, alternative, government on whether confinement notes that La- community period treatment center consti- timer was detained for a of time in a meaning prison-first awaiting tutes incarceration under the federal while he was 4A1.2(e)(1) Sentencing hearing, Guidelines. his revocation and then Because we hold that confinement in a awaiting subsequent while transfer to treatment center does not fall treatment center-and ar- provision, gues satisfy within the ambit of this we re- that this detention should resentencing. meaning verse and remand for challenges questions law, 1. Latimerraises a number of other novel we decidethem in unpublished to`bothhis convictionand his sentence. How- an contemporaneously memorandumdecision filed opinion. ever, present with this becausehis other claimsdo not
15H Thus, in cases defendant’s gov- each of address 4A1.2(e)(l). We revocation, of after sentence is reinstated in turn. arguments ernment’s is counted original of last release incar- II if “the date *3 sentence” post-revocation] ceration [the applica- challenges the Latimer Because 15-year period. U.S.S.G. the falls within to undis- sentencing guidelines the tion of added). 4A1.2(k)(2)(B)(emphasis § facts, is de our review novo. puted (9th 1350, Wilson, 1355 F.2d 900 v. States detention a If Latimer’s Cir.1990). properly center is characterized incarceration, the date of his “last then as time 4A1.2(e)(l) sets forth Section community treatment from the release” must prior a sentence period within 1967 within brings the convictions count to- imposed or served to been have window, brings La- and thus 15-year history score. criminal a defendant’s wards career of- definition of timer within may count a district provides that It question of whether communi- fender. conviction only if the conviction prior detention constitutes treatment center ty incarceration in the defendant’s resulted meaning of sec- under the “incarceration” uses the Commission imprisonment—the impression in 4A1.2(e)(l) one of first tion any part interchangeably2 during words — circuit.3 our commission prior to the fifteen of present of the offense: ex- imprisonment of prior sentence Any A that was year and one month ceeding one equating Unfortunately, other than the de- years of fifteen imposed within a “sen of incarceration” with “sentence instant commencement fendant’s at imprisonment,” id. tence of see prior any Also count counted. offense is not define 4A1.2(b)(l), Guidelines do exceeding one imprisonment of they do address wheth incarceration. Nor month, imposed, one whenever year and cen detention er being in- in the defendant resulted However, incarceration. qualifies ter as fif- part of such during any carcerated silence on this the Commission’s teen-year period. cannot, inquiry. not, end the does U.S.S.G. § of expression clear of the absence that, when also state The Guidelines in intent, must we choose Commission upon revoca is reinstated fits the Guidelines’ best terpretation that should the district court of tion purposes. structure general imprisonment original term of “add find it inquiry, our we outset of upon At the imprisonment any term that, provisions of in numerous significant 4A1.2(k)(l) (emphasis at revocation.” Id. Guidelines, differenti- the Commission imprisonment added). periods of The two non-impris- imprisonment and for between single prison ates as counted (or, alternatively, be- scoring, and history onment of criminal purposes and non-incarceration that sen tween deciding of the facili- sentences) on the nature 15-year based applicable falls within tence is served. the confinement 4A1.2(k)(2)(B). ty in which Unit See Id. at window. repeatedly particular, F.2d Harrington, 923 ed States — confine- U.S.-, sharp between denied, distinction Cir.), draws cert. 1375 community (1991). in a 128 ment 116 L.Ed.2d S.Ct. 112 reach to ("The opposite 4A1.2(b)(l) conclusion term See also U.S.S.G.
2. Rasco, F.2d 132 963 imprisonment' day. a sentence means See United ‘sentence — U.S.-, denied, sen- (6th Cir.), 113 S.Ct. refers to the maximum cert. incarceration and imposed.”). (1992). tence See discussion our 121 L.Ed.2d at 1515-16. infra far, occa- only Circuit has had the Sixth Thus question, and it reached to address this sion community treatment in a fy confinement in a house and halfway category as confine- same center under facility. ventional only house, adding thus the formula instance, setting forth For term prior each history point for 1 criminal histo- criminal calculating a defendant’s confinement. commentary its category, 4A1.1 ry to a de- points number a different add scoring system adding The Guidelines’ — depending history score criminal fendant’s each sentence points for many prior confine- length of the only on a sen- point but imprisonment, ment, the location also on cen- served tence “imprison- Sentences confinement.4 fully consistent halfway house—is ter *4 according to the classified ment” are point The purposes. the Guidelines’ with pris- spent in the defendant of time amount is to history calculation the criminal accordingly they are scored on, and —3 culpabili- relative defendant’s quantify year 1 exceeded imprisonment if the points and seri- measuring the extent by both ty, month; imprisonment points 2 if the 1 and prior criminal of the defendant’s ousness than days less greater 60 for than was a defendant’s more serious record. The if the month; 1 point and 1 and year 1 history crimes, higher his criminal prior days. 60 less for than imprisonment ultimate score, longer his sentence. and the 4Al.l(a)-(c), comment and U.S.S.G. § See (Introductory 4A Commen- U.S.S.G. See § three- this with (Background). contrast prior (“A a record of defendant with tary) imprisonment scoring structure tiered a culpable than is more behavior criminal halfway sentences, in a served a sentence great- deserving of and thus first offender point— only 1 every scored in case house is trying to than Rather punishment.”). er defendant regardless of whether each of the vari- gauge the seriousness in confinement. days or 5 5 served committed, the has a defendant ous crimes 4Al.l(c). at Id. § prior sen- a defendant’s use Guidelines directly do Although the Guidelines severity of rough proxy for the a tences as are to be points that the number specify offenses. community treat- to a sentences added for only 1 add The that fact else- center, indicates the Commission ment in commu- served a point for each regards that it in the Guidelines the Commis- reflects center nity treatment community and halfway houses re- crimes which judgment sion’s forms of equivalent roughly centers con- community treatment center in sult 5F1.1, com- U.S.S.G. See punishment. § (and generally less serious finement 1) (“ ‘Community confinement’ (n. ment relative about defendant’s say thus less in a residence means blameworthiness) result than crimes which center, house, center, halfway restitution the Commis- imprisonment. Whether in drug reha- facility, or alcohol health mental or not is beside is sound judgment sion’s center, community facili- other or bilitation matters for our point. What any Accordingly, in the absence ty.”). categories that, scoring two is in as- contrary, we must indications differently, punishment to classi- the Commission meant sume commentary 4A1.1 background to section sentencing judge 4A1.1 directs 4. Section "sen- with equates “confinement sentences” add: distinguishes both imprisonment" and tences of prior (a) points for each Add 3 halfway residency house: from year exceeding and one one imprisonment (c) (b), (a), distin- §of 4A1.1 Subdivisions month. longer than one guish sentences confinement (b) points each Add month, sen- year shorter confinement sixty days not count- least imprisonment of at sixty days, other and all at least tences of (a). sentences, ed in such as confinement fines, (c) prior sentence and resi- point sixty days, probation, for each Add 1 less than dency points (a) halfway (b), up of 4 to a total house. counted 4A1.1, (empha- (Background) comment at § Id. this item. added). added). 4Al.l(a)-(c) sis (emphasis § U.S.S.G. camps ... are not enti- capes [prison] from regards confinement clear makes sentencing reduction. We to the tled halfway community treatment Tapia, agree.”); see also States United con- from different qualitatively house (11th Cir.1993); F.2d 1194 prison. finement Brownlee, F.2d 765-66 2P1.1, is reinforced This distinction Cir.1992). is That such reduction levels offense the base describes escape from who defendants unavailable escape. If crimes to various that attach of the Commis- is indicative prison facilities being held escaped while a defendant escape is a from sion’s view for a felo- arrest following an escape than from offense more serious conviction, the following charge, or ny 13. U.S.S.G. at level is set offense base house. escape occurred 2Pl.l(a)(l). If the imprison- division Finally, between following (i.e., circumstances any other level arrest), offense base misdemeanor again in emphasized 5C1.1. finement However, 2Pl.l(a)(2). Id. at set at 8. instance, 5Cl.l(d) when provides that For be reduced level can offense the base range sentencing is between defendant’s “a escaped cases where *5 months, may impose the 10 court 6 and center, community community corrections or “(1) imprisonment; of a sentence either house,’ or simi- center, ‘halfway treatment in- imprisonment that (2) sentence of a 2Pl.l(b)(3). Sec- facility.” U.S.S.G. § lar supervised release a term of with cludes 2P1.1(b)(3) states: tion community con- that substitutes condition the escaped from (3) If the defendant according to home or detention finement community cor- custody of non-secure 5Cl.l(e), provided at in that the schedule § center, community treatment rections term satis- of the minimum is one-half least house,” facili- or center, “halfway similar U.S.S.G. imprisonment.” by fied under level the offense ty, ... decrease added). In other 501.1(d) (emphasis § the of- 4 or (a)(1) by levels subsection the end words, opts court for lower if the (a)(2) 2by under subsection fense level months, impose cannot range, it 6 of levels. treat- community months in of 6 2Pl.l(b)(3). at Id. § at 3 impose least center; it must ment apparent The time. prison is of provision this months significant isWhat about indeed, reason conceivable ex applies level reduction the offense that cern— too it would be a rule—is that such community con for escapes clusively from to to serve permit a defendant lenient community facilities, as such finement cen- community term in entire In halfway houses. treatment centers com- implication is that The obvious ter. sister along with our deed, held we have prisons centers munity treatment under reduction circuits that interchangeable. prisoners 2Pl.l(b)(3) is unavailable § prisons from escaped apparent have who distinction This same circum escaped under set they if the Guidelines camps, 501.1(e)(2), even may custo substi- “non-secure court qualifying ratio at which a stances forth McGann, F.2d for imprison- community 960 confinement v. dy.” States tute — denied, course, U.S limitations Cir.), of (9th (subject, cert. 847 al- provision (1992) 5Cl.l(d)). This L.Ed.2d 204 , imposed 121 113 S.Ct. .— day of 2Pl.l(b)(3) the substitution “[o]ne of subsection lows (“The language (residence in a custody confinement to the non-secure is limited ... center, halfway cen ‘community corrections like facilities facility) house, residential center[s], or similar community treatment ters], ’ U.S.S.G. imprisonment.” day district The one “halfway house[s].” [and] added). signif- The 501.1(e)(2)(emphasis camps are that federal held not the rate provision of this list icance the facilities from different generically it defines, the fact Consequently, es- substitution 2P1.1(b)(3). ed in section 1514 spend an addi- he is determines whether confinement if at all. For
defines
In
consid-
his life behind bars.
were
tional 15
center
community treatment
imprisonment,
case,
lenity compels
there
us
equivalent
such a
rule
ered
the two
explain how
need to
of the criminal
ambiguities
no
favor
would be
resolve
substituted
could be
punishment
interpretation im-
adopt
modes
defendant
pro-
of this
inclusion
one another.
penalties.
lesser of the two
posing the
again demonstrates
once
vision
that confinement
Accordingly, we hold
in a com-
confinement
views
Commission
center does
community treatment
qualitatively
munity treatment
meaning
under
constitute incarceration
imprisonment.
from a sentence
different
4A1.2(e)(l).
of §
4A1.1, 2P1.1, and 5C1.1
sum, sections
in a communi
confinement
differentiate
all
B
halfway house
ty Moreover, we
prison.
in a commu
arguing
that confinement
sug
in the Guidelines
references
no
find
equivalent of
is the
nity treatment center
intended
gest
meaning of
incarceration
of section
two for the
equate
4A1.2(e)(l),
princi
relies
government
interpret the
Accordingly,
the case of United States Van
pally on
4A1.2(e)(l) to ex
term
Cir.1990),
cert.
derlaan,
sentence, court at pronounced by as the 4A1.2(k) that, provides in cases Section classifica- its the that determined outset” revoked, parole is a defendant’s where at 507 the Guidelines. See id. tion under original term of impris- is to the court “add added). (emphasis im- imprisonment to term of onment therefore, terms, holding in the By its U.S.S.G. posed upon revocation.” in cases applies only where Schomburg 4A1.2(k)(l). This combined sentence § imprisonment. of a sentence specifies court sentence, and single as a “used counted impris- Here, court-specified was no there history points for compute the criminal by imposed the The sentence was onment. (c), 4Al.l(a), (b), applicable.” Id. or as § sentencing or- the and Parole Commission 4A1.2(k) explains commentary to The § placement in a explicitly der recommended the Guidelines combine that the reason community treatment center. giv- and the “sentence
“original sentence” C that “no is so more upon en revocation” for a be assessed points three will than govern- recognize that Finally, we conviction, probation if even single supported by position is ment’s Cong. 4251(c) Si Adm. 1966 U.S.Code penal system, including and § News, the federal tion within at penitentiaries. See 18 U.S.C. the federal upon revocation imposed if a sentence re- subsequently release ditional imprisonment, 11) as (n. classified is not 4A1.2, parole comment of at Id. voked.” as a counted automatically gets added). it (emphasis then (which than sentence criminal separate 4A1.2(k) section read The Sixth the defendant’s point to an additional adds of expression an commentary as its and score). no We see history criminal overall a sentence view the Commission’s assumption. Section an re- for such basis of upon revocation imposed Guide- only provision is 4A1.2(k) is the of whether gardless house, or a post- of question prison, that addresses served lines center, added be nothing sentences, says it and revocation re- imprisonment, original term an to add are the courts about count court sentencing quiring sen- non-imprisonment point additional single sentence as a them parole. upon revocation imposed tences scoring. history criminal non- all about nothing at fact, says it thus The court at 135. Rasco, F.2d see sentences, thus we and imprisonment 4A1.2(k) precludes that “section held into provision read such a no reason imposed treating a from court Guidelines.7 sen- a distinct as upon revocation pre- 4A1.2(k) to mean read section We counting under separate deserving tence say that It does says. cisely it what (c).” (b), Id. 4Al.l(a), section upon revocation imposed every sentence tell, Circuit’s Sixth can As best original sentence to the be added should following to rest on reasoning appears says it “term[s] imprisonment, to half- unless sentences proposition: upon revocation imposed imprisonment” cen- way houses original sentence. to the be added characterized should “sentence[s] ters 4A1.2(k), a situa- imprisonment Indeed, emphasis on this imprisonment” might fur- in which reinforced arise defining tion could characteristic history criminal three than more 4A1.2(k)(2)(B)(i), receive ther Because single conviction.6 points of a applicability measure contrary to run appears a result such “the by reference revocation commentary, the the intention release from last date have must Commission that the reasoned U.S.S.G. sentence.” such upon revo- all sentences intended added). (emphasis 4A1.2(k)(2)(B)(i) a communi- including cation— “im- 4A1.2(k) the terms sum, uses halfway house—to ty “incarceration,” prisonment” imprison- as “sentence[s] classified be these terms. define 4A1.2(k) added to does *8 under ment” pur- meant for the imprisonment Commission terms remains original scoring. community treat- history of criminal poses include the house under center ment reasoning has cer- a Circuit’s Sixth terms, believe which we meaning of these un- rests on an it appeal, but logical tain other looking to by only be answered unwarranted, assumption— can and supported, structure, of the indispensable the logic, and original sentence the we assume 6. If logical nor indis- it is But neither sepa- be counted Guidelines. would sentence the revocation rately, fact, given that the Commission pensable. In a case could occur this result community treat- original a sentences to ex- conviction a limits prison sentence on the initial history single criminal (3 points, a see center to year and one month ceeded one entirely it (whatever length), we find upon their rev- 4Al.l(a)) point sentence the to over- intended “imprison- than plausible other awas ocation 4Al.l(c)). (1 post-revocation But see discus- point, look see ment” calculating the altogether in at 4153. sion very the history score. At criminal defendant's least, 4A1.2(k) sug- nothing §in we find accept the Sixth Circuit's Perhaps we would gests otherwise. the inherent assumption if were either it custody as incarceration ing pre-revocation Guidelines, have as we provisions defendants would be would unthinkable: 1(A) supra. in Part done if it enhanced even have their sentences Ill hearings at their later determined were parole. More- they had not violated alternative, government the In the sentencing over, the old federal since in a commu that, if detention even argues release were entitled to defendants scheme incarceration, is not nity treatment parole their the pending outcome bail dur incarcerated nevertheless was Latimer length of a defen- hearing,8 the revocation he period because time relevant ing the vary sub- punishment could dant’s future prison for federal within detained was fortuity of stantially on the mere based he months while three approximately post bail. We had been able to he revo whether parole his scheduling of awaited Sentencing Commission cannot believe for an additional hearing, and then cation According- results. intended bizarre his such pending subse half weeks and a two the out- pending that detention ly, we hold transfer to quent determination parole revocation come of a disagree. We center. pur- constitute “incarceration” does not of detention period this characterize To poses of section the de- simply because “incarceration” confined within physically was fendant reject government’s Finally, also would subvert prison a federal walls attempt characterize incarceration The reason of the Guidelines. after spent penitentiary in the Latimer time in- sentences of focus on view, this our revoked. In parole was fact nothing to do with has carceration analogous pre- was of detention period se, rather with per of incarceration cannot custody when defendant The as- the incarceration. behind reason revoking Latimer’s bail. post result which is that crimes sumption recom- explicitly commission serious than crimes are more incarceration “place[d] a Communi- he be mended that thus, And, defendant who not. do appears from the It ty Treatment Center.” past regard- in the incarcerated been has a half weeks it took two and record that consequently culpable, as more ed commu- find an available the authorities than deserving punishment, more finalize Latim- center and nity treatment incarcerated. has never been who with an punish To Latimer transfer. er’s time for peri- However, reason behind additional when the inefficiency by neces- bureaucratic delay administrative incarceration is caused od of notions of guilt, adjudication affront basic than an an sity, rather would be nothing says result sure- punishment, a just period of fairness and this culpability. Accord- Guidelines. ly the defendant’s not intended about for sen- may provide basis ingly, is VACATED Latimer’s enhancement. tence resentencing. case is REMANDED case, the time Latimer the instant custody at federal spent dissenting: TROTT, Judge, La- in nature. Until entirely administrative I so because dissent. do respectfully I by the formally revoked parole was *9 timer’s peniten- federal spent in a the time Latimer Commission, La- justification for Parole 4, September and tiary June between he vio- not that had was detention timer’s robberies, which 14, five bank 1978 for he was rather that parole, his but lated put would him my pe- calculation parole. This violating his suspected fifteen- relevant within those analogous pre- robberies detention thus riod 4A1.2(e). This U.S.S.G. period. See year of eount- consequences custody. The trial parole Latimer’s time at the pro- in effect 4214(a)(l)(A)(i-iv). were These U.S.C. § 8. See 18 hearing. repealed because revocation have now been visions provisions eliminate circumstances, I unable to am Under Latimer, has committed who make would colleagues that Colorado, my Utah, agree respected with robberies seven bank confined behind physically treat- California, eligible to be Arizona, and Penitentiary at States the United walls offender. career ed as a serving time against Island and McNeil I on is not “incarcerated” at issue find it Accordingly, I do not sentence. serving his 1967 sentence began Latimer reach the difficult necessary to March on robberies bank separate five community treat- 20, 1972. on June paroled 1967, was 4, constitutes on issued was warrant violation parole A meaning of Latimer committed 16, 1977 because June 1973, A his sixth. robbery in bank memo- Hence, another I concur in the although Latimer because also issued was footnote detainer referred disposition randum his 1973 bank incarcerated then I as to opinion, was dissent majority 1 of 1979, 4, Latimer was June robbery. On not a offend- career holding that Latimer detain- charges to the on the 1973 paroled er. custody on held in then was er. Latimer stemming warrant violation parole 4, 1979 from June 1967 sentence from his parole day of his 27, 1979—the August finally Latimer was hearing. revocation on placed stayed until 14, 1979, he
September on 19th, he was released when
December parole. America, STATES UNITED held Latimer The warrant Plaintiff-Appellee, explicitly hearing revocation parole his held he’was be that once executed stated Therefore, June custody.
in federal TUCKER, Defendants Lee Homer 1979, 27, Latimer was 4, August 1979 to -Appellant. parole penitentiary because a federal No. 87-5090. rob the 1967 sentence for of his violation sentencing court is count beries. Appeals, Court United States part of the parole violation defendant’s Circuit. Ninth imposed. originally 13, 1993. May 1371, 923 F.2d Harrington, — -, denied, Cir.), U.S. cert. 1375-76 WALLACE, Judge, Chief Before: (1991). 116 L.Ed.2d 112 S.Ct. SCHROEDER, TANG, BROWNING, HUG, PREGERSON, FARRIS, re- Moreover, parole FLETCHER, was after Latimer’s CANBY, 27, 1979, NELSON, POOLE, voked, August D.W. HALL, BEEZER, REINHARDT, Latimer NORRIS, to release not choose did board KOZINSKI, BRUNETTI, WIGGINS, at a placement pending O’SCANNLAIN, Instead, THOMPSON, they NOONAN, chose center. RYMER, FERNANDEZ, penitentiary TROTT, where LEAVY, in a federal keep him KLEINFELD, 14,1979. September NELSON, remained until Latimer T.G. term, “in- he By my Judges. definition that Latimer I hold would
carcerated.” five 1967 robberies for the was in September June between *10 ORDER places This Latimer of nonre- majority the vote of fifteen-year peri- Upon within 1967 robberies court, it judges of this active regular cused od.