United States v. John L. Vickers, 891 F.2d 86 (5th Cir. 1989). · Go Syfert
United States v. John L. Vickers, 891 F.2d 86 (5th Cir. 1989). Cases Citing This Book View Copy Cite
48 citation events (14 in the last 25 years) across 10 distinct courts.
Strongest positive: NPR Investments, L.L.C. Ex Rel. Roach v. United States (ca5, 2014-01-23)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 29 distinct citers. How cited ↗
discussed Cited as authority (rule) NPR Investments, L.L.C. Ex Rel. Roach v. United States
5th Cir. · 2014 · confidence medium
See United States v. Rayo-Valdez, 302 F.3d 314, 318 (5th Cir.2002) (citing TRW, Inc. v. Andrews, 534 U.S. 19, 31 , 122 S.Ct. 441 , 151 L.Ed.2d 339 (2001); United States v. Vickers, 891 F.2d 86, 88 (5th Cir. 1989)) ("[W]hen interpreting a statute, it is necessary to give meaning to all its words and to render none superfluous.”). 26 .
discussed Cited as authority (rule) United States v. Jorge Rodriguez (2×)
5th Cir. · 2013 · confidence medium
Op. at 26 n.22; see also id. at 4 n.2 (asserting that the constraints of “the categorical and modified-categorical approach in its current form” — whereby we analyze and classify the conviction, rather than the underlying facts or allegations, result in “confusion and 5 We have repeatedly stated “that the Guidelines are subject to rules of statutory construction and interpretation.” United States v. Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012); see United States v. Rayo–Valdez, 302 F.3d 313, 318 (5th Cir. 2002); United States v. Vickers, 891 F.2d 86, 88 (5th Cir. 1989).
discussed Cited as authority (rule) United States v. Pablo Dominguez-Alvarado
5th Cir. · 2012 · confidence medium
When interpreting the Guidelines, “it is necessary to give meaning to all its words and to render none superfluous.” Rayo-Valdez, 302 F.3d at 318 (citing United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989), for the proposition that the Guidelines are subject to rules of statutory construction and interpretation).
cited Cited as authority (rule) United States v. Calderon-Pena
5th Cir. · 2003 · confidence medium
Rayo-Valdez, 302 F.3d at 319 (citing TRW and United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989)).
cited Cited as authority (rule) United States v. Calderon-Pena
5th Cir. · 2003 · confidence medium
Rayo-Valdez, 302 F.3d at 319 (citing TRW and United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989)).
discussed Cited as authority (rule) United States v. Casmine Terrence Aska
2d Cir. · 2002 · confidence medium
See United States v. Meader, 195 F.3d 66, 67 (1st Cir.1999); United States v. Thomas, 930 F.2d 12, 14 (8th Cir.1991); United States v. Goolsby, 908 F.2d 861, 862-63 (11th Cir.1990) (per curiam); United *78 States v. Jimenez, 897 F.2d 286, 287-88 (7th Cir.1990); United States v. Carroll, 893 F.2d 1502, 1509-11 (6th Cir.1990); United States v. Vickers, 891 F.2d 86, 87-88 (5th Cir.1989) (per curiam); United States v. Wright, 891 F.2d 209, 211-12 (9th Cir.1989); United States v. Goldbaum, 879 F.2d 811, 812-14 (10th Cir.1989); United States v. Ofchinick, 877 F.2d 251, 255-56 (3d Cir.1989).
discussed Cited as authority (rule) United States v. Stier
5th Cir. · 2000 · confidence medium
The court held that escape was a “separate and distinct offense” from the offense for which the defendant was imprisoned at the time of his escape and that § 5G1.3 mandated the imposition of a consecutive term of imprisonment.6 Because Stier cannot demonstrate he would have prevailed in challenging the imposition of a consecutive sentence for escape on direct appeal, we AFFIRM the district court’s denial of § 2255 relief.7 AFFIRMED. 5 U.S.S.G.§ 5G1.3 (Nov. 1990). 6 United States v. Vickers. 891 F.2d 86, 88-89 (5th Cir. 1989). 7 Goodwin, 132 F.3d at 174-76 ; Vickers. 891 F.2d at 88-89 …
discussed Cited as authority (rule) United States v. Norberto B. Luna (2×) also: Cited "see"
5th Cir. · 1999 · confidence medium
United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989) (noting that in the absence of a dis-cernable, contrary intent, the court follows the clear language of the Guidelines). .
discussed Cited as authority (rule) United States v. Newman
1st Cir. · 1992 · confidence medium
"Under the principle of expressio _________ unius est exclusio alterius, the enumeration of specific exclu- _____ ___ ________ ________ sions from the operation of a statute is an indication that the statute should apply to all cases not specifically excluded." United States v. Rocha, 916 F.2d 219, 243 (5th Cir. 1990), cert. _____________ _____ ____ denied, 111 S. Ct. 2057 (1991) (citing United States v. Vickers, ______ _____________ _______ 891 F.2d 86, 88 (5th Cir. 1989) ("double counting" for ransom demand pursuant to 2A4.1(b)(1) and for extortion pursuant to 2A4.1(b)(5) not improper)); Uni…
discussed Cited as authority (rule) United States v. Michael J. Newman
1st Cir. · 1992 · confidence medium
"Under the principle of expressio unius est exclusio alterius, the enumeration of specific exclusions from the operation of a statute is an indication that the statute should apply to all cases not specifically excluded.” United States v. Rocha, 916 F.2d 219, 243 (5th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 2057 , 114 L.Ed.2d 462 (1991) (citing United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989) (“double counting” for ransom demand pursuant to § 2A4.1(b)(1) and for extortion pursuant to § 2A4.1(b)(5) not improper)); United States v. Curtis, 934 F.2d 553, 555 (4th Cir.1991…
discussed Cited as authority (rule) United States v. Debra Alessandroni
10th Cir. · 1992 · confidence medium
We held there that the district court properly increased a defendant’s criminal history score under U.S.S.G. §§ 4A1.1(d) and 4A1.1(e), because he was under a criminal *422 justice sentence at the time of escape and had committed the offense less than two years after release from imprisonment— even though confinement and imprisonment were also elements of the crime of escape. 879 F.2d at 813-14 ; accord United States v. Ofchinick, 877 F.2d 251, 255-57 (3d Cir.1989); United States v. Wright, 891 F.2d 209, 211-12 (9th Cir.1989); United States v. Vickers, 891 F.2d 86, 87-88 (5th Cir.1989) (p…
discussed Cited as authority (rule) United States v. Steven H. Sanders
1st Cir. · 1992 · confidence medium
See, e.g., United States v. Ellen, 961 F.2d 462, 468 (4th Cir.1992) (rejecting argument that a defendant convicted of filling wetlands without a permit should not receive upward adjustments for ongoing discharge and discharge without a permit even if those factors were elements of the offense; “[bjecause ‘the Guidelines are explicit when double counting is forbidden, ... [a]n adjustment that clearly applies to the conduct of an offense must be imposed unless the Guidelines expressly exclude its applicability’ ”), cert. denied, — U.S. —, 113 S.Ct. 217 , 121 L.Ed.2d 155 (1992); Unite…
discussed Cited as authority (rule) United States v. Don Dowling
5th Cir. · 1992 · confidence medium
Thus, for purposes of 18 U.S.C. § 3585 (b), a special condition of probation confining one to a halfway house cannot qualify as a "term of imprisonment.” Cf. United States v. Canales, 960 F.2d 1311, 1316 (5th Cir.1992) (escape from a halfway house while serving a “sentence of imprisonment” merits enhancement of sentence under U.S.S.G. § 4A1.1(e); United States v. Vickers, 891 F.2d 86, 87-88 (5th Cir.1989) (same)).
discussed Cited as authority (rule) United States v. Curtis
4th Cir. · 1991 · confidence medium
“Under the principle of expressio unius est exclusio alterius, the enumeration of specific exclusions from the operation of a statute is an indication that the statute should apply to all cases not specifically excluded.” United States v. Rocha, 916 F.2d at 243 (citing United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989)).
discussed Cited as authority (rule) United States v. Calvin Thomas (2×) also: Cited "see, e.g."
8th Cir. · 1991 · confidence medium
See United States v. Goolsby, 908 F.2d 861, 863-64 (11th Cir.1990) (per curiam); United States v. Jimenez, 897 F.2d 286, 287-88 (7th Cir.1990); United States v. Carroll, 893 F.2d 1502, 1509-11 (6th Cir.1990); United States v. Vickers, 891 F.2d 86, 87-88 (5th Cir.1989) (per curiam); United States v. Wright, 891 F.2d 209, 211-12 (9th Cir.1989); United States *14 v. Goldbaum, 879 F.2d 811, 813 (10th Cir.1989); United States v. Ofchinick, 877 F.2d 251, 255-57 (3d Cir.1989).
cited Cited as authority (rule) United States v. Miguel Morales-Vasquez A/K/A Reymundo Gonzalez-Morales
5th Cir. · 1990 · confidence medium
United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989).
discussed Cited as authority (rule) United States v. Ruben Rocha, Thomas Padilla, Hector Garcia-Garcia, Johnny Robert Hinojosa, and Jose Santos Gallegos (2×) also: Cited "see"
5th Cir. · 1990 · confidence medium
United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989).
discussed Cited as authority (rule) United States v. Patrick Bigelow
5th Cir. · 1990 · confidence medium
Our court, in United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989), has already rejected the contention that the Guidelines did not intend to give effect to a defendant’s custody status in enhancing a sentence for the offense of escape.
discussed Cited as authority (rule) United States v. Thomas Joseph Jimenez
7th Cir. · 1990 · confidence medium
See United States v. Carroll, 893 F.2d 1502 (6th Cir.1990); United States v. Wright, 891 F.2d 209 (9th Cir.1989); United States v. Vickers, 891 F.2d 86, 87-88 (5th Cir.1989); United States v. Medeiros, 884 F.2d 75, 79-80 (3d Cir.1989); United States v. Goldbaum, 879 F.2d 811 (10th Cir.1989); United States v. Ofchinick, 877 F.2d 251, 255-56 (3d Cir.1989); see also United States v. Brown, 729 F.Supp. 1120 (E.D.Va.1989) (available at 1989 U.S. Dist.
discussed Cited as authority (rule) UNITED STATES OF AMERICA v. DON DOWLING
unknown court · confidence medium
AFFIRMED. 10 Thus, for purposes of 18 U.S.C. § 3585 (b), a special condition of probation confining one to a halfway house cannot qualify as a "term of imprisonment." Cf. United States v. Canales, ___ F.2d ___, ___ (5th Cir. 1992) (escape from a halfway house while serving a "sentence of imprisonment" merits enhancement of sentence under U.S.S.G. § 4A1.1(e); United States v. Vickers, 891 F.2d 86, 87-88 (5th Cir. 1989) (same)). 7
discussed Cited as authority (rule) UNITED STATES OF AMERICA v. NORBERTO B. LUNA
unknown court · confidence medium
Note 12 to § 2K2.1 explains that the 32 U.S.S.G. § 2B2.1, commentary n.3. 33 United States v. Vickers, 891 F.2d 86, 88 (5th Cir. 1989) (noting that in the absence of a discernable, contrary intent, the court follows the clear language of the Guidelines). 14 enhancement in subsection (b)(4) is barred in cases involving a violation of § 922(j) —— the section under which Luna was convicted —— if “the base level offense is determined under subsection (a)(7).”34 Luna’s base level offense was determined under subsection (a)(4), however, so this exception does not apply.
discussed Cited "see" United States v. Jonathan Cashaw
5th Cir. · 2010 · signal: see · confidence high
See United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989) (noting that the enumeration of specific exceptions to a provision in the Guidelines indicates the purposeful exclusion of any other exceptions to that provision).
discussed Cited "see" United States v. Carlyle Eustace Wong, A/K/A Carlyle Wong
3rd Cir. · 1993 · signal: see · confidence high
See United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989) (Sentencing Guidelines subject to rules of statutory construction); United States v. Rocha, 916 F.2d 219, 243 (5th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2057 , 114 L.Ed.2d 462 (1991) (enumeration of specific exclusions from operation of statute is indication that statute should apply to all cases not specifically excluded).
discussed Cited "see" United States v. John Simon Gonzales
5th Cir. · 1993 · signal: see · confidence high
See United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989) (holding that a court may enhance a defendant’s sentence under more than one guideline section or subsection even though the two enhancements are for essentially the same conduct).
discussed Cited "see" United States v. Frank Canales
5th Cir. · 1992 · signal: see · confidence high
See United States v. Vickers, 891 F.2d 86 (5th Cir.1989) (holding that the enhancement provisions in guideline sections 4A1.1(d) and (e) apply when the defendant escapes while serving a sentence at a residential center).
discussed Cited "see" United States v. Brown
E.D. Va. · 1989 · signal: see · confidence high
See United States v. Vickers, 891 F.2d 86 (5th Cir.1989); United States v. Medeiros, 884 F.2d 75 (3d Cir.1989); United States v. Goldbaum, 879 F.2d 811 (10th Cir.1989); United States v. Ofchinick, 877 F.2d 251 (3d Cir.1989); United States v. Jimenez, 708 F.Supp. 964 (S.D.Ind.1989).
discussed Cited "see" UNITED STATES OF AMERICA v. JOHN SIMON GONZALES
unknown court · signal: see · confidence high
See United States v. Vickers, 891 F.2d 86, 88 (5th Cir. 1989) (holding that a court may enhance a defendant's sentence under more than one guideline section or subsection even though the two enhancements are for essentially the same conduct).
cited Cited "see, e.g." United States v. Rayo-Valdez
5th Cir. · 2002 · signal: see also · confidence medium
Ed. 2d 339 (2001); see also United States v. Vickers, 891 F.2d 86, 88 (5th Cir. 1989) (guidelines subject to rules of statutory construction and interpretation).
discussed Cited "see, e.g." United States v. Bulmaro Rayo-Valdez, AKA Bulmaro Valdez Rayo
5th Cir. · 2002 · signal: see also · confidence medium
See TRW, Inc. v. Andrews, 534 U.S. 19 , 122 S.Ct. 441, 449 , 151 L.Ed.2d 339 (2001); see also United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989) (guidelines subject to rules of statutory construction and interpretation).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
John L. VICKERS, Defendant-Appellant
89-3308.
Court of Appeals for the Fifth Circuit.
Dec 8, 1989.
891 F.2d 86
Francis King, Asst. Federal Public Defender, John T. Mulvehill, Federal Public Defender, New Orleans, La., for defendant-appellant., Robert J. Boitmann and Patrice M. Harris, Asst. U.S. Attys., John P. Volz, U.S. Atty., New Orleans, La., for plaintiff-appel-lee.
Thornberry, Jolly.
Cited by 38 opinions  |  Published
PER CURIAM:

John Vickers challenges the district court’s refusal to depart downward from the sentencing guidelines. For the reasons cited herein, we affirm.

I. FACTS AND PROCEDURAL HISTORY

On July 30,1986, John Vickers (hereafter Vickers) was sentenced to a forty-eight month term of imprisonment for possession of a stolen treasury check. On November 12, 1987, Vickers was transferred from a Federal Correctional Institution to a residential center located in New Orleans. While serving his sentence at the residential center, Vickers absconded. Due to be released on March 28, 1988, Vickers returned of his own volition to the residential center on February 10, 1988. Vick-ers was subsequently charged with, entered a plea of guilty to, and was convicted of escaping from federal custody in violation of 18 U.S.C. § 751(a).

Applying section 2P1.1(a)(1) of the Federal Sentencing Guidelines (hereafter the Guidelines), the district court determined a base level of thirteen for the offense of unlawful escape from custody in violation of 18 U.S.C. § 751(a). The district court reduced Vickers’ base level of thirteen by two points because Vickers had demonstrated acceptance of responsibility. The district court next enhanced Vickers’ base[*87] offense level by two points under 4Al.l(d) for committing the instant offense while in the custody of the Attorney General and by one point under 4Al.l(e) for committing the instant offense within two years following Vickers’ original conviction for possession of a stolen treasury check. The resulting sentencing range under the Guidelines was a term of between twenty-four to thirty months imprisonment. The district court assessed Vickers’ punishment at twenty-four months imprisonment, with the term to run consecutively to Vickers’ previous sentence pursuant to section 5G1.3 of the Guidelines. Thereafter, Vickers perfected the instant appeal.

II. DISCUSSION

On appeal, Vickers contends that the district court erred in enhancing Vickers’ sentence two points under section 4A1.1(D) for committing the offense of escape while serving a term of imprisonment under a criminal justice sentence, and one point under section 4Al.l(e) for committing the offense of escape less than two years following his release from confinement on the stolen treasury check conviction. Vickers argues that his sentence was improperly enhanced twice by what should have been mutually exclusive criteria for what was essentially the same criminal conduct. In other words, Vickers urges that the base offense level under the Guidelines for unlawful escape from custody necessarily takes into account the fact that the defendant was in custody when he committed the offense; therefore, the enhancement of the base offense level because the defendant was in custody amounts to a “double whammy.” In sole support of the above contentions, Vickers argues that the Sentencing Commission (hereafter the Commission) did not adequately anticipate situations such as his in the promulgation of the Guidelines.

This is a question of first impression in this Circuit. In United States v. Goldbaum, 879 F.2d 811 (10th Cir.1989), the Tenth Circuit was confronted with facts similar to those presented by the instant case. In Goldbaum, the defendant Goldbaum, while serving a sentence of imprisonment, escaped from custody. Upon his return to custody, Goldbaum entered a plea of guilty to the offense of unlawful escape from custody in violation of 18 U.S.C. § 751(a). As in the instant case, the district court, after assigning Goldbaum a base level of thirteen for the underlying offense of escape, enhanced the base level by two points and one point respectively under section 4Al.l(d) and section 4Al.l(e) of the Guidelines. As does Vickers in the instant case, Goldbaum argued 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 sections 4Al.l(d) and 4Al.l(e) of the Guidelines. In support of his contentions, Goldbaum urged that the policy behind the enhancement provisions of sections 4Al.l(d) and 4Al.l(e) is to punish an offender more severely for offenses committed while in custody and for offenses committed in close temporal proximity to previous offenses. Goldbaum argued that because custody is a necessary element to the crime of escape, it cannot simultaneously be considered a factor which would make the crime more grievous for sentencing purposes. As Goldbaum cleverly stated on brief, “escape is not made worse by being committed while in custody. It is made possible by being ... in custody.” Goldbaum, 879 F.2d at 813.

In United States v. Ofchinick, 877 F.2d 251 (3d Cir.1989), the defendant Ofchinick was convicted of escaping from a Federal Correctional Institution where he was serving a five year sentence for mail fraud. As in the instant case, Ofchinick’s base offense level for unlawful escape from custody in violation of 18 U.S.C. § 751(a) was assessed at thirteen. Among the six enhancement points to Ofchinick’s base offense level were two points under section 4Al.l(d) of the Guidelines and one point under section 4Al.l(e) of the Guidelines. Ofchinick contended that the above enhancements violated the due process clause of the Fifth Amendment and was “without foundation in the law or common sense.”[*88] Ofchinick, 877 F.2d at 253. Ofchinick argued that the base offense level of thirteen for the offense of escape under 18 U.S.C. § 751(a) already took into account the fact that a defendant would necessarily be in custody. Ofchinick urged that because the offense of escape has as an essential element that the perpetrator be in custody, his sentence was the result of improper “double counting” because his status was counted twice when points were added under sections 4Al.l(d) and (e) in addition to the base offense level of thirteen for escape.

The reasoning of the Tenth and Third Circuits in holding that the above described enhancements were not improper illuminates our path. See also United States v. Medeiros, 884 F.2d 75 (3d Cir.1989); but see United States v. Clark, 711 F.Supp. 736 (S.D.N.Y.1989). We are inclined, as was the Tenth Circuit, to view the Guidelines as if they were statutes or court rules for purposes of construction and interpretation. United States v. Goldbaum, 879 F.2d 811, 813 (citing Mistretta v. United States, — U.S. —, 109 S.Ct. 647, 664-65, 102 L.Ed.2d 714 (1989)). Accordingly, this Court follows the clear, unambiguous language of the Guidelines if there is no discernible manifestation of contrary intent.

As the Tenth Circuit properly noted, wherever there are exceptions to the general rules of Guidelines application, express reference to those exceptions was made by the Sentencing Commission. Id. (citations omitted). Guided by the principle of statutory construction that the enumeration of specific exclusions from the operation of a statute is indicative of an intent that the statute should apply to all cases not specifically excluded, we examine the clear language of the Guidelines. We find no exception to the application of the enhancement provisions of Chapter Four of the Guidelines to the base offense level assigned to the offense of unlawful escape from custody. We therefore are constrained to presume that the Sentencing Commission contemplated that under Guidelines sections 4Al.l(d) and (e), points would be added to an individual defendant's base offense level for a conviction pursuant to 18 U.S.C. § 751(a). [1] Accordingly, we reject Vickers’ contentions to the contrary.

Vickers alternatively argues that even if enhancement was proper under sections 4Al.l(d) and (e), the district court erred in imposing the instant sentence consecutive to the sentence Vickers was already serving pursuant to Guideline section 5G1.3. Section 5G1.3 provides that

[i]f at the time of sentencing, the defendant is already serving one or more unexpired sentences, then the sentences for the instant offense(s) shall run consecutively to such unexpired sentences, unless one or more of the instant offense(s) arose out of the same transactions or occurrences as the unexpired sentences. In the latter case, such instant sentences and the unexpired sentences shall run concurrently, except to the extent otherwise required by law.

Vickers offers no authority in support of the above argument, but instead asserts that because escape, by definition, must occur while the offender is serving an unexpired term, that the offense of escape necessarily arises out of the same transaction and occurrence as the unexpired sentence. We reject Vickers contentions and conclude that the offense of unlawful escape from custody was an offense separate and distinct from Vickers’ earlier offense of possession of a stolen treasury check. Therefore, the district court’s imposition of the instant sentence consecutive to the sen[*89] tence Vickers was already serving was not error.

Because we have determined that the district court’s refusal to depart from the guidelines as urged by Vickers was not unlawful, we affirm the sentence as imposed by the district court. See United States v. Buenrostro, 868 F.2d 135, 139 (5th Cir.1989).

III. CONCLUSION

The district court did not err by enhancing Vickers base offense level pursuant to Guidelines sections 4Al.l(d) and (e). Further, the district court’s imposition of the instant sentence consecutive to the sentence Vickers was already serving was not improper. The judgment of the district court is affirmed.

AFFIRMED.

1

. We also find the following reasoning of the Third Circuit to be persuasive:

While it is true that only a person in custody may escape, obviously persons in custody can commit crimes which can be committed by other persons as well. For example an inmate or a visitor can assault a prison guard. If such an assault is committed by an inmate, it could not reasonably be urged that the sentence he was serving at that time be excluded in the computation of his criminal history category, as the defendant’s status as an inmate would not be an element of the offense and thus could not have been reflected in the applicable guidelines § 2A2.2

Ofchinick, 877 F.2d 251 at 256 (citation omitted).