Matter of ADENIYE, 26 I&N Dec. 726 (BIA 2016) (as amended with 11th Cir. cases)

Cite as 26 I&N Dec. 726 (BIA 2016) Interim Decision #3859

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Matter of Bandele Adekunle ADENIYE, Respondent

Decided as amended May 2, 20161

U.S. Department of Justice Executive Office for Immigration Review

Board of Immigration Appeals

An “offense relating to a failure to appear by a defendant for service of sentence” is an aggravated felony under section 101(a)(43)(Q) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(Q) (2012), if the underlying offense was “punishable by” imprisonment for a term of 5 years or more, regardless of the penalty actually ordered or imposed. FOR RESPONDENT: Julio E. Moreno, Esquire, Atlanta, Georgia FOR THE DEPARTMENT OF HOMELAND SECURITY: Blake Doughty, Assistant Chief Counsel BEFORE: Board Panel: PAULEY and GREER, Board Members; GELLER, Temporary Board Member. PAULEY, Board Member:

In a decision dated September 1, 2015, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony under section 101(a)(43)(Q) of the Act, 8 U.S.C. § 1101(a)(43)(Q) (2012), and ordered him removed from the United States. The respondent has appealed from that decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Nigeria who was admitted to

the United States as a nonimmigrant visitor on July 20, 1989. He adjusted his status on July 26, 1993, but his lawful permanent resident status was rescinded in 1996. On June 30, 1995, the respondent was convicted of possessing stolen mailbox keys in violation of 18 U.S.C. § 1704 (1994), 1 On our own motion, we amend the March 17, 2016, order in this case to correct the erroneous reference on page 728 regarding the jurisdiction in which this matter arises. Additional case citations have also been included in the amended paragraph.

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which is a Federal felony punishable by a maximum term of imprisonment of 10 years. As a result of that conviction, the respondent was sentenced to a 24-month term of imprisonment, but he absconded before being taken into Federal custody. The respondent was later apprehended, and on December 17, 2014, he was convicted of escape in violation of 18 U.S.C. § 751(a) (2012) and of failing to surrender for service of sentence in violation of 18 U.S.C. §§ 3146(a)(2) and (b)(1)(A)(ii) (2012).

The Immigration Judge determined that the respondent’s 2014 conviction for failing to appear for service of sentence is for an aggravated felony under section 101(a)(43)(Q) of the Act because it is “an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more.” Accordingly, the Immigration Judge found that the respondent is removable and ineligible for all requested relief.

II. ANALYSIS

Although the respondent concedes that his offense of conviction is one “relating to a failure to appear . . . for service of sentence,” he argues that it is not an aggravated felony under section 101(a)(43)(Q) of the Act because the “underlying offense”—possession of stolen mailbox keys—was not “punishable by imprisonment for a term of 5 years or more.” Specifically, although the respondent does not dispute that 18 U.S.C. § 1704 prescribes a statutory maximum penalty of imprisonment for 10 years, he maintains that the term of imprisonment by which his underlying offense was “punishable” should be determined by looking to the 24-month sentence he was actually ordered to serve, and not to the offense’s statutory maximum penalty of 10 years.

In this regard, the respondent observes that the aggravated felony definition at section 101(a)(43)(Q) of the Act is the only one that focuses on the term of imprisonment by which an offense is “punishable,” noting that two other subparagraphs of the definition refer to the sentence that “may be imposed” for an offense, namely, section 101(a)(43)(J) (covering certain racketeering and gambling offenses “for which a sentence of one year imprisonment or more may be imposed”) and section 101(a)(43)(T) (covering certain “failure to appear” offenses where the underlying offense was one “for which a sentence of 2 years’ imprisonment or more may be imposed”). According to the respondent, the disparate use of the terms “may be imposed” and “punishable by” indicates that Congress must have intended these terms to have different meanings.

It is unclear why Congress chose to use the term “punishable by” in section 101(a)(43)(Q) of the Act, rather than the “may be imposed”


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formulation it employed in sections 101(a)(43)(J) and (T). The legislative history of the aggravated felony definition sheds no light on the question.2 Nevertheless, we are not persuaded to adopt the respondent’s construction of the language in section 101(a)(43)(Q).

The fundamental problem with the respondent’s argument is that it runs counter to the plain “meaning of the term ‘punishable,’ which refers to any punishment capable of being imposed.” Schrader v. Holder, 704 F.3d 980, 986 (D.C. Cir. 2013) (emphasis added). In analogous contexts, the courts have held that Congress’ use of the term “punishable by” denotes a focus on the maximum penalty that may be imposed for the offense of conviction, rather than on the penalty that was (or could have been) imposed upon any particular defendant. See United States v. Denson, 588 F.2d 1112, 1116−17, 1120−22 (5th Cir. 1979); see also, e.g., United States v. Gallaher, 624 F.3d 934, 940 (9th Cir. 2010); United States v. Guzman-Tlaseca, 546 F.3d 571, 579 (8th Cir. 2008); United States v. Murillo, 422 F.3d 1152, 1153−54 (9th Cir. 2005).

The respondent’s reading is also inconsistent with the Supreme Court’s line of decisions culminating in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), which have held that the term “drug trafficking crime”—defined by 18 U.S.C. § 924(c)(2) (2012) to mean “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)”—refers to offenses “for which the ‘maximum term of imprisonment authorized’ [under the Controlled Substances Act] is ‘more than one year.’” Id. at 1683 (quoting 18 U.S.C. § 3559(a)(5) (2012)); see also Carachuri-Rosendo v. Holder, 560 U.S. 563, 567 (2010). As the Moncrieffe Court further explained, “The upshot is that a noncitizen’s conviction of an offense that the Controlled Substances Act (CSA) makes punishable by more than one year’s imprisonment will be counted as an ‘aggravated felony’ for immigration

2 The language now codified in section 101(a)(43)(Q) of the Act was initially enacted as subparagraph (P) by section 222(a) of the Immigration and Nationality Technical Corrections Act (“INTCA”) of 1994, Pub. L. No. 103-416, 108 Stat. 4305, 4320, 4322. It was subsequently redesignated as subparagraph (Q), and the original 15-year term of imprisonment required by the statute was amended to require the current 5-year term. Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. No. 104-132, §§ 440(e)(5), (6), 110 Stat. 1214, 1277−78. However, it has always included the “punishable by” language. Section 222(a) also added section 101(a)(43)(J) of the Act, which has continuously used the words “may be imposed” rather than “punishable by.” INTCA § 222(a), 108 Stat. at 4321. Section 101(a)(43)(T) of the Act, which was added by section 440(e)(8) of the AEDPA, 110 Stat. at 1278, has always employed the “may be imposed” formulation as well. Our research has revealed no evidence to suggest that the proponents of these various provisions attributed any particular significance to their discrepant use of “punishable by” and “may be imposed.”


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purposes,” thus signifying that the Court understands the term “punishable by” to refer to the maximum possible sentence that may be imposed upon conviction, not to the sentence actually ordered or imposed.3 Moncrieffe v. Holder, 133 S. Ct. at 1683. We agree and see no reason to depart from that commonsense understanding here.

We realize that Congress’ use of different terms within related statutes generally implies that different meanings are intended. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004). Thus, while the ordinary meaning of undefined statutory terms is strongly preferred, there may be occasions when similar or related terms must be given different meanings, even at the cost of interpreting one of those terms in an uncommon way. For instance, in Johnson v. United States, 529 U.S. 694 (2000), a case involving the revocation of a criminal defendant’s supervised release, the Supreme Court recognized Congress’ “unconventional usage” of the statutory term “revoke,” explaining that the “uncommon sense” of a term may be relied on “when the ordinary meaning fails to fit the text and when the realization of clear congressional policy . . . is in tension with the result that customary interpretive rules would deliver.” Id. at 704−09 & n.9. This principle does not aid the respondent here, however, because there is no indication that the ordinary meaning of the term “punishable by” does not make contextual sense or that using the ordinary meaning of the term would in any way frustrate congressional intent.

Moreover, the respondent’s argument that different phrases must be construed to have different meanings does not necessarily support his claim that the meaning to be ascribed to the term “punishable by” in his case should be the sentence actually imposed. Several subparagraphs of the aggravated felony definition do focus on the sentence that was ordered in a

3 Carachuri-Rosendo is not to the contrary. The Court held there that an alien’s second misdemeanor conviction for drug possession under State law did not correspond to “recidivist possession”—a “felony punishable” by imprisonment for more than 1 year under the Controlled Substances Act, 21 U.S.C. § 844(a)—where no recidivist enhancement was actually ordered in State court. Carachuri-Rosendo v. Holder, 560 U.S. at 576−82; see also United States v. Brooks, 751 F.3d 1204, 1209−13 (10th Cir. 2014) (applying the reasoning of Carachuri-Rosendo in holding that a State must have sought an upward sentencing departure under its sentencing guidelines scheme in order to find that a defendant was convicted in that State of an “offense punishable by . . . imprisonment for a term exceeding one year” (quoting U.S. Sentencing Guidelines Manual § 4B1.2 cmt. n.1 (U.S. Sentencing Comm’n 2007))). Unlike in Carachuri-Rosendo, the respondent’s offense of conviction was punishable by a term of imprisonment of more than 5 years based solely on its elements. Carachuri-Rosendo v. Holder, 560 U.S. at 582 (stating that a defendant must “have been actually convicted of a crime that is itself punishable as a felony under federal law”).


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particular respondent’s case. See sections 101(a)(43)(F), (G), (R), (S) of the Act (defining as aggravated felonies certain offenses “for which the term of imprisonment is at least one year”). According to the respondent’s own theory, if Congress had intended section 101(a)(43)(Q) to focus on the sentence actually imposed, it would most naturally have used the formulation in those subparagraphs, but it chose not to. Under the circumstances, we find that the respondent’s argument cuts both ways and is therefore unpersuasive.

We find no sufficient reason to warrant our deviation from the ordinary meaning of the term “punishable by” in the context of section 101(a)(43)(Q) of the Act. Since the maximum penalty for a violation of 18 U.S.C. § 1704 is imprisonment for 10 years, the respondent’s offense is “punishable by imprisonment for a term of 5 years or more,” regardless of the fact that the sentence actually imposed was for 24 months. We therefore conclude that he was convicted of an aggravated felony under section 101(a)(43)(Q).

III. CONCLUSION

Possession of stolen mailbox keys in violation of 18 U.S.C. § 1704 is an offense “punishable by imprisonment for a term of 5 years or more” under section 101(a)(43)(Q) of the Act. Thus, the respondent’s conviction under 18 U.S.C. § 3146 for failing to appear to serve his sentence for that offense is for an aggravated felony that renders him removable under section 237(a)(2)(A)(iii) of the Act. No other issues are presented on appeal. Accordingly, the respondent’s appeal will be dismissed. ORDER: The appeal is dismissed.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 15-10105

Non-Argument Calendar ________________________

D.C. Docket No. 1:13-cr-00141-SCJ-RGV-1

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BANDELE ADEKUNLE ADENEYE, a.k.a. Bandale I. Ade, Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia

________________________

(July 13, 2015)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges. PER CURIAM:

Case: 15-10105 Date Filed: 07/13/2015 Page: 1 of 6

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USA v. Bandele Adekunle Adeneye, No. 15-10105 (11th Cir. 2015)

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2

Plaintiff-appellant Bandele Adeneye appeals his 13-month total sentence

imposed after he pled guilty to escape from federal custody, in violation of 18

U.S.C. § 751(a), and failure to surrender for service of a sentence, in violation of

18 U.S.C. §§ 3146(a)(2) and (b)(1)(A)(ii).1

At Adeneye’s initial sentencing, the district court refused to group the counts

of conviction under U.S.S.G. § 3D1.2. However, the court varied downward from

the advisory guideline range of 18 to 24 months’ imprisonment, sentencing

Adeneye to 13 months for each count, to be served concurrently, for a total of 13

months’ imprisonment. We vacated and remanded, and instructed the district court

to make clear findings as to whether grouping was appropriate under § 3D1.2(a) or

(b).2 On remand, the district court again refused to group the counts and sentenced

Adeneye to a total of 13 months’ imprisonment. In doing so, it clarified that it

would have sentenced Adeneye to the same total sentence of 13 months even if the

counts were grouped.3 The present appeal ensued.

On appeal, Adeneye argues that the district court erred in refusing to group

his counts of conviction when calculating his advisory guideline range. The

government responds, inter alia, that grouping the counts would not have been

1 We note that the judgment incorrectly lists the offense of conviction as to count two as 18 U.S.C. § 3146(b)(A)(ii), instead of § 3146(b)(1)(A)(ii). We point this out in case the district court wishes to correct this clerical error in the judgment; the inadvertent omission of the “(1)” does not affect the instant appeal.

2 United States v. Adeneye, 585 F. App’x 982, 987 (11th Cir. 2014) (per curiam). 3 The advisory guideline range would have been 12 to 18 months’ imprisonment if the

counts were grouped.


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proper, as Adeneye committed two separate offenses with two separate wrongs.

After consideration of the parties’ briefs and review of the record on appeal, we

find that, even if the district court erred in failing to group Adeneye’s two counts

of conviction, any error in that regard was harmless, and the 13-month sentence

imposed is reasonable regardless of whether the counts are grouped. Accordingly,

we affirm Adeneye’s sentence.

I.

We review the district court’s refusal to group multiple counts under

U.S.S.G. § 3D1.2 with due deference. See United States v. Bradford, 277 F.3d

1311, 1316 (11th Cir. 2002) (per curiam). Counts should be grouped together for

guideline calculation purposes when they “involv[e] substantially the same harm,”

such as when they “involve the same victim and the same act” or “involve the

same victim and two or more acts . . . connected by a common criminal objective

or constituting part of a common scheme or plan.” U.S.S.G. § 3D1.2(a)–(b). We

need not decide a guidelines issue or remand for new sentencing proceedings,

however, when the district court expressly states that it would have imposed the

same sentence regardless of its ruling on the issue, and the sentence would have

been reasonable assuming the issue was decided in the defendant’s favor. See

United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006).


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We review the reasonableness of a sentence for abuse of discretion, see Gall

v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007), and we will vacate a

sentence imposed by a district court only when left with a “definite and firm

conviction that the district court committed a clear error of judgment,” United

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal quotation

marks omitted). The court must impose a sentence “sufficient, but not greater than

necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including

the need to reflect the seriousness of the offense, deter criminal conduct, and

protect the public from the defendant’s future criminal conduct. See § 3553(a)(2).

We have stated that, “when the district court imposes a sentence within the

advisory Guidelines range, we ordinarily will expect that choice to be a reasonable

one.” United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (internal

quotation marks omitted). And we have found that “[a] sentence imposed well

below the statutory maximum penalty is an indicator of a reasonable sentence.”

United States v. Dougherty, 754 F.3d 1353, 1362, 1364 (11th Cir. 2014), cert.

denied, 135 S. Ct. 1186 (2015) (holding that the sentence was reasonable in part

because it was well below the statutory maximum).

II.

Here, we need not decide whether the district court erred in failing to group

Adeneye’s two counts of conviction because any error in that regard was harmless.


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See Keene, 470 F.3d at 1349. The district court imposed a total sentence below the

calculated advisory guideline range and within the advisory guideline range

Adeneye proposes, so harmless error analysis is appropriate. See United States v.

Barner, 572 F.3d 1239, 1248 (11th Cir. 2009). Moreover, the district court stated

multiple times that it sentenced Adeneye to 13 months’ imprisonment because it

thought the sentence was reasonable and that it would have imposed the same

sentence even if his two counts of conviction had grouped. See id.; see also Keene,

470 F.3d at 1348–49.

Additionally, a 13-month total sentence would have been substantively

reasonable even if the district court had grouped the counts of conviction. See

Keene, 470 F.3d at 1349–50. The district court stated that it had considered the §

3353(a) factors and found a 13-month total sentence to be reasonable. It did not

have to lay the factors out one by one. See United States v. Robles, 408 F.3d 1324,

1328 (11th Cir. 2005) (per curiam) (noting that district courts do not have to

conduct an accounting of every § 3553(a) factor and explain the role each played

in the sentencing decision). The court specifically addressed how it focused on

deterrence, and it was within the court’s discretion to give that factor greater

weight. See Snipes, 611 F.3d at 872 (noting that we will not “second guess the

weight” accorded to a given factor (internal quotation marks omitted)); see also 18

U.S.C. § 3553(a)(2).


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Further, the advisory guideline range would have been 12 to 18 months’

imprisonment if the counts were grouped, while the advisory guideline range was

18 to 24 months with the counts not grouped. Thus, a 13-month total sentence was

within the 12-to-18-month guideline range that would have applied even if the

counts had been grouped, which indicates reasonableness. See, e.g., Snipes, 611

F.3d at 872. Moreover, the concurrent 13-month sentences fell far below the

applicable 5-year maximum sentences, further evidencing the reasonableness of

the total sentence imposed.4 See Dougherty, 754 F.3d at 1362. Based on the

foregoing, even if Adeneye’s counts of conviction had been grouped, the 13-month

total sentence that the court stated that it would have imposed regardless would not

leave us with “the definite and firm conviction that the district court committed a

clear error of judgment.” Irey, 612 F.3d at 1190 (internal quotation marks

omitted). Therefore, after careful consideration of the record and the parties’

arguments on appeal, we affirm the district court.

AFFIRMED.

4 Escape from custody carries a statutory maximum of five years’ imprisonment.

18 U.S.C. § 751(a). Failure to surrender for service of a sentence for an offense punishable by imprisonment for five years or more is punishable by a maximum of five years’ imprisonment. 18 U.S.C. § 3146(a)(2), (b)(1)(A)(ii).


[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 13-15100

Non-Argument Calendar ________________________

D.C. Docket No. 1:13-cr-00141-SCJ-RGV-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BANDELE ADEKUNLE ADENEYE, a.k.a. Bandale I. Ade,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia

________________________

(September 24, 2014)

Before HULL, MARCUS, and FAY, Circuit Judges. PER CURIAM:


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United States v. Adeneye, 585 F. App'x 982, 987 (11th Cir. 2014) (per curiam)


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2

Bandele Adekunle Adeneye appeals his total sentence of 13 months of

imprisonment for his convictions of escape and failure to surrender to serve

sentence. We affirm in part, and vacate and remand in part.

I. BACKGROUND

According to the Presentence Investigation Report (“PSI”), Adeneye pled

guilty on November 4, 1994, to unlawfully possessing stolen mailbox keys. On

June 29, 1995, he was sentenced to 24 months of imprisonment. Adeneye was not

confined at that time, pursuant to an appearance bond. The judge ordered him to

report to prison on September 8, 1995, to begin serving his sentence. Adeneye did

not report to prison, however, and he moved without leaving a forwarding address.

A warrant subsequently was issued for his arrest.

In April 2011, an Atlanta-based attorney contacted the U.S. Marshal Service

to inquire about arrangements for Adeneye to surrender voluntarily. The attorney

did not reveal Adeneye’s location, but investigators eventually discovered

Adeneye was using the name “Bandele I. Ade” and was residing in Reynoldsburg,

Ohio. On November 21, 2012, law enforcement arrested Adeneye in

Reynoldsburg.

In April 2013, a federal grand jury charged Adeneye with escape, in

violation of 18 U.S.C. § 751(a) (“Count 1”), and failure to surrender for service of

sentence, in violation of 18 U.S.C. § 3146(a)(2), (b)(1)(A)(ii) (“Count 2”).


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Adeneye specifically was charged in Count 1 with “escape from custody, which

custody by virtue of a process issued under the laws of the United States by the

District Court for the Northern District of Georgia, upon and by virtue of the

conviction and sentencing . . . for the offense of unlawfully possess[ing] stolen

mailbox keys.” ROA at 8 (emphasis added). Adeneye pled guilty to both counts

without the benefit of a written plea agreement.

In calculating Adeneye’s advisory Sentencing Guidelines range, the U.S.

Probation Office determined Adeneye had a base offense level of 13, pursuant to

U.S.S.G. § 2P1.1(a)(1), for Count 1. For Count 2, he had a base offense level of

11. The PSI did not group the counts under §§ 3D1.1 and 3D1.2. In accordance

with the multiple count rules under § 3D1.4, Adeneye’s combined adjusted offense

level was 15. Adeneye received a two-level reduction under § 3E1.1(a) for

acceptance of responsibility; his total offense level was 13. Adeneye had a

criminal history category of III. Based on his total offense level of 13 and criminal

history category of III, his Guidelines imprisonment range was 18 to 24 months.

Adeneye filed the following objections to the PSI. First, he argued he

should not have received a base offense level of 13 under § 2P1.1 for Count 1,

because he was not in custody or confinement when he failed to surrender. He

further asserted failure to surrender to serve a sentence did not present the same

risks of harm associated with escape from the custody of a police officer or a penal


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institution. He contended the specific offense characteristics of the Guideline, in

§ 2P1.1(b)(2) and (3), reflected that fact, because subsections (b)(2) and (b)(3)

provided for reductions to a defendant’s base offense level if he escaped from

“non-secure custody.”1 Because the Guidelines recognized that escapes from non-

secure custody presented fewer risks, Adeneye argued the lower base offense level

of 8 should apply when a defendant was not in custody and escaped by failing to

surrender to serve a sentence.

Second, Adeneye argued his counts should have been grouped together

under § 3D1.2(a), because his conduct involved one act, failure to surrender.

Alternatively, he contended his counts should have been grouped together under

§ 3D1.2(b), because, even if escape and failure to surrender constituted two acts,

they were connected by a common criminal objective or constituted part of a

common scheme or plan.

Finally, Adeneye requested a downward variance from the PSI’s calculated

guideline range. He urged the judge to consider and give adequate weight to

mitigating evidence, including his youth at the time he fled, his subsequent

rehabilitation, his educational pursuits and employment, his volunteer activities,

and the impact a lengthy period of incarceration would have on his family and

1 “Non-secure custody” is defined as “custody with no significant physical restraint (e.g., where a defendant walked away from a work detail outside the security perimeter of an institution; where a defendant failed to return to any institution from a pass or unescorted furlough; or where a defendant escaped from an institution with no physical perimeter barrier).” U.S.S.G. § 2P1.1, cmt. n.1.


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community. Adeneye specifically requested a sentence of six months of

imprisonment, to run concurrently with the 24-month sentenced imposed in his

prior possession-of-stolen-mailbox-keys case.

At the sentencing hearing, the district judge overruled Adeneye’s objection

regarding the base offense level for escape, finding 13 was the correct base offense

level under § 2P1.1(a)(1). The judge also overruled the objection concerning

grouping. Accordingly, the judge determined Adeneye had a total offense level of

13, a criminal history category of III, and a Guidelines imprisonment range of 18

to 24 months. After hearing arguments in mitigation, the judge departed

downward 4 levels, giving Adeneye a total offense level of 9. A total offense level

of 9 and a criminal history category of III resulted in a Guidelines range of 8 to 14

months. The judge sentenced Adeneye to 13 months of imprisonment each on

Counts 1 and 2, to run concurrently with each other but consecutively to the 24-

month sentence imposed in his prior case for possession of stolen mailbox keys.

Adeneye objected to the judge’s findings of fact and conclusions of law with

regard to the above-mentioned objections. He further objected to the judge’s

failure to make any findings as to whether he had been in custody for purposes of

determining his base offense level under § 2P1.1. He also objected to the judge’s

failure to make any factual findings regarding how his failure to surrender

constituted more than one act for grouping purposes.


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The judge responded and specifically found 13 was the appropriate base

offense level for the escape conviction, because Adeneye had been in custody and

had escaped from custody. The judge further stated Adeneye’s failure to surrender

constituted two separate offenses with regards to the grouping objection.

The government subsequently requested the district judge to find that he

would have imposed the same sentence, regardless of the Guidelines calculations.

The judge responded with the following statement:

[L]et me make sure for the record so when you all appeal everybody will have it for the record. The Court departed down four levels for two reasons: One, the Court felt it was reasonable. Two, the Court also felt that what defense counsel on behalf of her client asked for was appropriate and reasonable. The Court did not think changing the criminal history category, though, from a three to a two would be reasonable and the Court did not do that.

Now, you are right, the custody guideline range went from six to twelve months to eight to fourteen months, and I sentenced Mr. Adeneye to 13 months in the face of a custody guideline range of eight to fourteen months. I wanted to make sure everybody has their record.

ROA at 232-33.

II. DISCUSSION

A. Base Offense Level for Escape under U.S.S.G. § 2P1.1

On appeal, Adeneye argues the district judge applied the wrong base offense

level as to Count 1. He contends he should have received a base offense level of 8,

rather than 13, because his custody was not by virtue of an arrest or conviction.


7

We review a district judge’s application of the Sentencing Guidelines de

novo and the judge’s findings of fact for clear error. United States v. Bane, 720

F.3d 818, 824 (11th Cir.), cert. denied, 134 S. Ct. 835 (2013).

A defendant commits the federal crime of escape if he:

[E]scapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or magistrate judge, or from the custody of an officer or employee of the United States pursuant to lawful arrest . . . .

18 U.S.C. § 751(a) (emphasis added). “[C]ustody does not require direct physical

restraint and may be minimal or constructive.” United States v. Gowdy, 628 F.3d

1265, 1267 (11th Cir. 2010) (citation and internal quotation marks omitted)

(recognizing convictions sentenced under § 2P1.1 often involve failures to report

or return to prison). Furthermore, the custodial requirement is satisfied “where a

lawful judgment of conviction has been issued by a court against the defendant.”

Id. at 1268.

The Guidelines provide the base offense level for escape is “13, if the

custody or confinement is by virtue of an arrest on a charge of felony, or

conviction of any offense; [or] 8, otherwise.” U.S.S.G. § 2P1.1(a)(1), (2). We

have not analyzed in a published opinion whether a base offense level of 13 or 8

applies to a defendant who escaped, in violation of 18 U.S.C. § 751(a), by failing


8

to surrender to serve his sentence. Nevertheless, based on a plain reading of the

Guideline, 13 is the appropriate base offense level in this case. Adeneye pled guilty

to escape, and, specifically, pled guilty to “escape from custody, . . . upon and by

virtue of the conviction and sentencing . . . for the offense of unlawfully

possess[ing] stolen mailbox keys.” ROA at 8. Thus, Adeneye pled guilty to

escape from “custody or confinement . . . by virtue of an arrest on a charge of

felony, or conviction of any offense,” which warrants a base offense level of 13.

U.S.S.G. § 2P1.1(a)(1). Because he pled guilty, and because he does not challenge

his plea, he cannot now argue his custody was not by virtue of an arrest or

conviction. See McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166

(1969) (“[A] guilty plea is an admission of all the elements of a formal criminal

charge.”); United States v. Bonilla, 579 F.3d 1233, 1240 (11th Cir. 2009)

(recognizing a guilty plea generally waives a defendant’s right to non-jurisdictional

challenges to a conviction).

In addition, neither the Guidelines nor any statutory or case law impose an

explicit requirement that a defendant escape from physical custody in order to

violate 18 U.S.C. § 751(a) or to receive a base offense level of 13 under U.S.S.G.


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§ 2P1.1. See 18 U.S.C. § 751(a); U.S.S.G. § 2P1.1(a)(1); Gowdy, 628 F.3d at 1267

(recognizing custody does not require physical restraint and may be constructive).2

Accordingly, the district judge did not clearly err by finding Adeneye’s base

offense level for his escape conviction was 13, and we affirm on this issue.

B. Grouping under U.S.S.G. § 3D1.2

Adeneye also argues on appeal the district judge misapplied the multiple

count rules by failing to group Counts 1 and 2 under U.S.S.G. § 3D1.2(a) or (b).

He contends that, had the judge sustained his objections and grouped the counts,

his total offense level would have been 9, rather than 13. A total offense level of 9

and a criminal history category of III would have resulted in a guideline range of 8

to 14 months. Adeneye argues the judge would have departed downward based on

mitigating evidence, which would have produced a guideline range below the

13-month total sentence imposed by the judge.

We view the district judge’s refusal to group multiple counts under U.S.S.G.

§ 3D1.2 with due deference. United States v. Bradford, 277 F.3d 1311, 1316 (11th

Cir. 2002) (per curiam). “To facilitate judicial review of sentencing decisions and

avoid unnecessary remands, sentencing judges should make explicit findings of

2 Adeneye also contends the specific offense characteristics of § 2P1.1 somehow support a finding that his base offense level is eight. This argument lacks merit. Although the specific offense characteristics in § 2P1.1 provide for reductions to the base offense level when a defendant escapes from “non-secure custody” and meets other requirements, they also recognize that a defendant’s initial base offense level may be 13 under such circumstances. U.S.S.G. § 2P1.1(b)(2)-(3). Adeneye does not argue on appeal he should have received a downward adjustment based on escape from “non-secure custody,” and thus, we need address that issue.


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fact and conclusions of law.” United States v. Mock, 523 F.3d 1299, 1304 (11th

Cir. 2008) (citation, internal quotation marks, and alteration omitted) (remanding

when a district judge did not make explicit findings and had applied a cross-

reference in the arson guideline to the attempted first-degree murder guideline).

The Guidelines require that when a defendant has been convicted of more

than one count, the sentencing judge must initially: “Group the counts resulting in

conviction into distinct Groups of Closely Related Counts (‘Groups’) by applying

the rules specified in § 3D1.2.” U.S.S.G. § 3D1.1(a)(1). Section 3D1.2 provides:

All counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially the same harm within the meaning of this rule:

(a) When counts involve the same victim and the same act or transaction.

(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.

Id. § 3D1.2(a), (b).

Under subsection (a), counts should be grouped together “when they

represent essentially a single injury or are part of a single criminal episode or

transaction involving the same victim.” Id. § 3D1.2, cmt. n.3. Under subsection

(b), “counts that are part of a single course of conduct with a single criminal

objective and represent essentially one composite harm to the same victim are to be

grouped together, even if they constitute legally distinct offenses occurring at


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different times.” Id. § 3D1.2, cmt. n.4. For offenses in which no identifiable

victim exists, “the ‘victim’ for purposes of subsections (a) and (b) is the societal

interest that is harmed.” Id. § 3D1.2, cmt. n.2.

No binding precedent establishes whether convictions for escape, in

violation of 18 U.S.C. § 751(a), and failure to surrender to serve sentence, in

violation of 18 U.S.C. § 3146(a)(2) and (b)(1)(A)(ii), should be grouped under

U.S.S.G. § 3D1.2(a) or (b), when both convictions arise from the defendant’s

failure to report to prison to begin serving a sentence.

The district judge made very limited findings on this issue, determining only

that escape and failure to surrender involved two separate offenses. The judge did

not address whether Adeneye’s conduct concerned substantially the same harm to

the same victim. Furthermore, the judge did not analyze whether Adeneye’s acts

were connected by a common criminal objective or constituted part of a common

scheme or plan. Id. § 3D1.2(b) & cmt. n.4. Without this information, we cannot

engage in meaningful appellate review. Mock, 523 F.3d at 1304 (holding the

district judge’s failure to make specific findings of law and fact precluded our

review). We vacate and remand for the district judge to make additional findings


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on whether Adeneye’s convictions should have been grouped for sentencing

purposes under U.S.S.G. § 3D1.2(a) and (b).3

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

3 Even if the district judge erred in calculating the Guidelines range, the government

contends remand is unnecessary, because the judge would have sentenced Adeneye in the same way without the errors. The judge did not state explicitly he would have imposed the same sentence, however, and the judge noted he was imposing the 13-month total sentence in the face of the Guidelines calculations. Accordingly, we do not conclude the judge’s error, if any, was harmless. See United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006) (holding we need not decide Guidelines issues or remand for new sentencing proceedings when a judge expressly states he would have imposed the same sentence, and such a sentence is reasonable); United States v. Barner, 572 F.3d 1239, 1248 (11th Cir. 2009) (recognizing, where a district judge indicates “the sentence was ‘pursuant to the guidelines,’ and the factors outlined in 18 U.S.C. § 3553,” there is no harmless error).


Matter of ADENIYE, 26 I&N Dec. 726 (BIA 2016) (as amended with 11th Cir. cases)

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