Goldbaum was charged with and pleaded guilty to the offense of unlawful escape from custody in violation of 18 U.S.C. § 751(a). The district court, in its memorandum and Order of July 22, 1988, denied Goldbaum’s motion to declare the United States Sentencing Commission’s Sentencing Guidelines invalid and unenforceable on constitutional grounds and thereafter sentenced Goldbaum to 24 months imprisonment. 1
On appeal, Goldbaum renews his constitutional challenges to the Sentencing Reform Act and the Sentencing Guidelines. He argues first that they violate the separation of powers doctrine and that they amount to an unconstitutional delegation of legislative authority. These challenges were addressed and rejected by the Supreme Court in
Mistretta v. United States,
— U.S. -,
Goldbaum also raises several due process challenges to the Sentencing Guidelines. However, as he concedes, such arguments were not raised below. Therefore, they are not properly before this court.
Gundy v. United States,
Goldbaum’s final argument is that the district judge erred in applying the Sentencing Guidelines, and in particular, in determining the “Criminal History Category” for Goldbaum. After assigning Goldbaum a base level of 13 for the underlying offense of escape, the district judge calculated the criminal history level and added three points to that category pursuant to Guidelines §§ 4Al.l(d) and (e). Guideline § 4Al.l(d) provides that two points are to be added to the defendant’s criminal history category if the “defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” Guideline § 4Al.l.(e) provides that two points are to be added “if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under (a) or (b).” However, only one point can be added pursuant to § 4Al.l(e) if two points are added pursuant to § 4Al.l(d). An accompanying application note provides that points may be added under § 4Al.l(e) even if the defendant committed the offense while still in confinement. Commentary, Application Note 5 to § 4A1.1, United States Sentencing Commis
*813
sion Guidelines Manual, p. 4.3.
See also United States v. Ofchinick,
Goldbaum argues that because “confinement” and “imprisonment” are substantive elements of the crime of escape pursuant to 18 U.S.C. § 751(a) they should not be also considered as enhancement factors for the purposes of Guidelines §§ 4Al.l(d) or (e). The crux of Goldbaum’s argument is that the policy behind the enhancement sections in chapter 4 of the Guidelines is to punish a defendant more severely for offenses committed while in custody and for offenses committed close in time to previous crimes. He asserts that because custody is a necessary element to the crime of escape it cannot also be considered a factor making the crime more egregious and thereby warranting enhancement of the punishment. As stated in Goldbaum’s brief, “escape is not made worse by being committed while in custody. It is made possible by being ... in custody.” Appellant’s Brief at 10.
The government argues that the Sentencing Guidelines should be interpreted as if they were a statute. Because they clearly and unambiguously call for the addition of three points to the criminal history category in this situation and because there is no express intent (in the Guidelines or their accompanying notes) to the contrary, the clear language must be followed.
Our research indicates that only four courts have directly addressed this issue in published opinions. Of these, three have rejected the defendants’ challenges to the application of the enhancement points.
See United States v. Ofchinick,
Although Goldbaum’s position is tenable, we conclude that the district court was correct in applying the three enhancement points. First, we agree with the government that the Sentencing Guidelines must be interpreted as if they were a statute or a court rule,
cf. Mistretta v. United States,
— U.S. at -,
Second, there is not a complete overlap, as Goldbaum seems to suggest, between the escape offenses covered by Guideline § 2P1.1 and the escape offenses which would be enhanced by the application of Guidelines §§ 4Al.l(d) and (e). Guideline § 2P1.1 is entitled “Escape, Instigating or Assisting Escape.” Guideline § 2Pl.l(a) provides that a base offense level of 13 is to be given if the escape was from “lawful custody resulting from a conviction or as a result of a lawful arrest for a felony.” This guideline is broad in application and applies to those who escape from a high security prison as well as to those who escape from the “lawful custody” of a police officer in a police station after a “lawful arrest” for a felony. It is also applicable to defendants who aid and assist an escape in violation of 18 U.S.C. § 752 even if they were not in custody at the time of the offense and have no prior criminal record.
See United States v. Dugan,
“Inasmuch as persons not in custody may be sentenced under the guideline, it is inconceivable that the Sentencing Commission intended the establishment of a base offense level therein to impact on the computation of the criminal history category. A contrary ruling would mean that an inmate who escaped, whose only criminal history was the offense for which he was in custody when he escaped, would be subject to the same sentencing range as a person who had no criminal history and assisted an inmate to escape. We refuse to construe the guidelines to reach such an absurd result.”
United States v. Ofchinick,
Accordingly, we AFFIRM the decision of the district court in all respects.
Notes
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.