In November 2005, Irvin Rill and Robert Harper, Jr., were cellmates at the St. Clair County Jail in Osceola, Missouri. Rill was being held on several state felony charges, and Harper was being held pending sentencing for federal firearms convictions. At some pоint in November, Rill and Harper made plans to escape from the jail. They used hacksaw blades, which had been smuggled into the jail, to cut the metal bars off the window of their cell. On November 25, they used pieces of cloth soaked in оil to burn a three-inch hole through the plexiglass that covered the window. However, their escape attempt wаs discovered by corrections officers the next morning before Rill and Harper were able to make a holе large enough to escape.
On May 31, 2007, Rill pled guilty to aiding and assisting another (Harper) in an attempted escape from federal custody, a violation of 18 U.S.C. §§ 752(a) and 2. At sentencing, Rill argued that his base offense level should be reducеd by three levels under United States Sentencing Guidelines Manual § 2Xl.l(b)(l). Section 2Xl.l(b)(l) states:
[i]f an attempt, decrease [the basе offense level] by 3 levels, unless the defendant completed all the acts the defendant believed necessary for successful completion of the substantive offense or the circumstances demonstrate that the defendant was about to complete all such acts but for apprehension or interruption by some similar event beyond thе defendant’s control.
(Emphasis added.) Rill argued that he was entitled to a three-level attempt reduction becаuse he did not complete the escape.
The district court
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heard testimony from Rill and Deputy United States Mar
On appeal, Rill contends that the district court “was clearly erroneous in finding that ‘the acts necessary for the escape were about to be completed and would have been completеd but for apprehension or interruption by events beyond the Defendant’s control; namely, the discovery of the esсape by jail officials.’ ” We disagree.
We review the district court’s factual findings for clear error and its appliсation of the guidelines de novo.
United States v. Blankenship,
The district court did not clearly err in finding that Rill was about to complete all of the acts necessary fоr the escape but for discovery of the escape attempt by corrections officers. Using a hacksаw blade, Rill and Harper had removed the metal bars from the window of their cell. They had burned a three-inch hole in the plexiglass covering the window. Rill and Harper also had hacksaw blades hidden in the wall of their cell. According to Deputy Nance, Rill and Harper could have removed the plexiglass panel in thirty to thirty-five minutes using the hacksaw blades onсe they burned the three-inch hole. Their cell contained bed sheets tied together that they could have then used to lower themselves to the ground from their second-story window. The district court did not commit clear error in concluding that the circumstances demonstrated that Rill was about to complete all the acts necessary to escape but for apprehension by corrections officers.
The district court need not credit Rill’s testimony in light of the evidence that he was about to complete the acts necessary for escape.
See United States v. Wahlstrom,
We thus agree with the district court that Rill was not entitled to a three-level reduction in his base offense level under § 2X1.1(b)(1), and we affirm the judgment of the district court.
Notes
. The Honorable Gary A. Fenner, United States District Judge for the Western District