At page 561 Distinguishing imprisonment from rehabilitation in sentencing18 citing cases“imprisonment or the length of imprisonment is not an appropriate means of promoting correction and rehabilitation.”
- United States v. Jaime Nava, 499 F. App'x 705 (9th Cir. 2012).unpublishedAlthough the trial court acted in accord with then-existing circuit precedent, see United States v. Duran, 37 F.3d 557, 561 (9th Cir.1994), the Supreme Court has since held that sentencing judges may not lengthen an offender’s sentence to…
- United States v. Tapia, 665 F.3d 1059 (9th Cir. 2011).publishedUnited States v. Tapia, 376 Fed.Appx. 707 (9th Cir.2010) (citing United States v. Duran, 37 F.3d 557, 561 (9th Cir.1994)).
- United States v. Paul Himes, Jr., 439 F. App'x 272 (4th Cir. 2011).unpublishedE.g., United States v. Jimenez, 605 F.3d 415, 424 (6th Cir.2010); United States v. Duran, 37 F.3d 557, 561 (9th Cir.1994).
- United States v. Story, 635 F.3d 1241 (10th Cir. 2011).published Similarly, the Ninth Circuit in United States v. Duran, 37 F.3d 557, 561 (9th Cir.1994), embraced a narrow interpretation of § 3852(a): “[i]f Congress had intended to prohibit sentencing judges from considering correction and rehabilitatio…
- United States v. Limon, 273 F. App'x 698 (10th Cir. 2008).unpublished(concluding that ‘‘[o]nce *709 imprisonment is chosen as a punishment ... § 3582 does not prohibit consideration of correction and rehabilitation in determining the length of imprisonment)
- United States v. Samuel Watson, 482 F.3d 269 (3d Cir. 2007).published We also noted that “[u]nlike § 3582(a) . . . § 994(k) is a directive to the U.S. Sentencing Commission, not to sentencing courts.” Id. at 158 n.2 (citing United States v. Hawk Wing, 433 F.3d 622 , 629 n.5 (8th Cir. 2006); United States v.…
- United States v. Valerie Manzella, 475 F.3d 152 (3d Cir. 2007).published In United States v. Duran that Court wrote that [i]f Congress had intended to prohibit sentencing judges from considering correction and rehabilitation in setting the length of the sentence, it could have enacted a statute that admonished…
- United States v. Manzella, No. 06-3434 (3d Cir. Feb. 2, 2007).published United States v. Hawk Wing, 433 F.3d 622 , 629 n.5 (8th Cir. 2006); United States v. Hardy, 101 F.3d 1210 , 1212–13 (7th Cir. 1996); United States v. Duran, 37 F.3d 557, 561 (9th Cir. 1994).
- United States v. Marlin Hawk Wing, 433 F.3d 622 (8th Cir. 2006).published Therefore, when reviewing a claim that the district court improperly considered rehabilitation and correction in determining a defendant's sentence, an appellate court should review the district court's conduct under § 3582 United States v…
- United States v. Lyndon Harlow, 124 F.3d 205 (7th Cir. 1997).unpublishedUnited States v. Hardy, 101 F.3d 1210, 1212-13 (7th Cir.1996); United States v. Giddings, 37 F.3d 1091, 1096-97 (5th Cir.1994); United States v. Jackson, 70 F.3d 874, 880 (6th Cir.1995); United States v. Duran, 37 F.3d 557, 561 (9th Cir.19…
Show 6 more citing cases
- United States v. Joseph Krul, 774 F.3d 371 (6th Cir. 2014).published See United States v. Duran, 37 F.3d 557, 561 (9th Cir.1994); see also Tapia, 131 S.Ct. at 2394 (Sotomayor, J., concurring).
- United States v. John Dehart, 401 F. App'x 296 (9th Cir. 2010).unpublished(indicating that “[o]nce imprisonment is chosen as a punishment ... § 3582 does not prohibit consideration of correction and rehabilitation in determining the length of imprisonment)
- United States v. Daniel W. Duran, 665 F.3d 1059 (9th Cir. 2010).unpublishedSee United States v. Duran, 37 F.3d 557, 561 (9th Cir.1994); see also United States v. Waknine, 543 F.3d 546, 554 (9th Cir.2008).
- In Re Sealed Case, 573 F.3d 844 (D.C. Cir. 2009).published See United States v. Duran, 37 F.3d 557, 561 (9th Cir.1994).
- United States v. Andre Martin, 445 F. App'x 692 (4th Cir. 2011).unpublished(concluding that § 3582(a) prohibits consideration of rehabilitative needs when deciding whether to impose a term of imprisonment, but does not prohibit consideration of rehabilitation when determining the length of the…)
- United States v. Cordery, 656 F.3d 1103 (10th Cir. 2011).publishedCompare United States v. Hawk Wing, 433 F.3d 622, 629-30 (8th Cir.2006), and United States v. Duran, 37 F.3d 557, 561 (9th Cir.1994), with In re Sealed Case, 573 F.3d 844, 849-51 (D.C.Cir.2009), and United States v. Manzella, 475 F.3d 152…
At page 559 Establishing nexus requirement under U.S.S.G. § 3C1.214 citing casesBecause the government does not contest the nexus requirement, we will assume without so holding that U.S.S.G. § 3C1.2 requires a nexus between the crime of conviction and the reckless endangerment.
- United States v. Dial, 524 F.3d 783 (6th Cir. 2008).published (Because the government does not contest the nexus requirement, we will assume without so holding that U.S.S.G. § 3C1.2 requires a nexus between the crime of conviction and the reckless endangerment.)
- United States v. Christopher Seals, 813 F.3d 1038 (7th Cir. 2016).publishedSee United States v. Porter, 413 Fed.Appx. 526, 531 (3d Cir.2011) (“[F]or § 3C1.2 to apply, Porter’s [reckless flight from law enforcement] must have occurred during the course of attempting to avoid detection *1046 or responsibility for […
- United States v. Miguel Martinez, 484 F. App'x 177 (9th Cir. 2012).unpublishedEven assuming that a nexus is required between the reckless endangerment and the crime of conviction, see United States v. Duran, 37 F.3d 557, 559-60 (9th Cir.1994), abrogated on other grounds by Tapia v. United States, — U.S. -, 131 S.Ct.…
- United States v. Hassan Porter, 413 F. App'x 526 (3d Cir. 2011).unpublishedThis requirement has become known as the “nexus test.” See United States v. Dial, 524 F.3d 783, 787 (6th Cir.2008) (“When applying § 3C1.2, the district court must find a nexus between the offense for which the defendant was convicted and…
- United States v. Lykes, 71 F. App'x 543 (6th Cir. 2003).unpublished(§ 3C1.2 "requires a nexus between the crime of conviction and the reckless endangerment)
- United States v. Och, 16 F. App'x 666 (9th Cir. 2001).unpublishedU.S.S.G. § 3C1.2 provides for a two-level enhancement for a defendant who “recklessly create[s] a substantial risk of death of serious bodily injury to another person in the course of fleeing from a law enforcement officer.” We have assume…
- United States v. Moody, 12 F. App'x 563 (9th Cir. 2001).unpublished United States v. Duran, 37 F.3d 557, 559 (9th Cir.1994).
- United States v. Hodges, No. 98-30614 (5th Cir. July 20, 1999).unpublishedEven if we assume, as did the Ninth Circuit, that U.S.S.G. § 3C1.2 requires a nexus between the crime of conviction and the defendant’s reckless conduct, United States v. Duran, 37 F.3d 557, 559-60 (9th Cir. 1994), we find that a sufficien…
- United States v. David Leslie Genereux, 142 F.3d 446 (9th Cir. 1998).unpublished (assuming without holding that a nexus requirement applies)
- United States v. Gray, 512 F. App'x 803 (10th Cir. 2013).unpublishedSee United States v. Duran, 37 F.3d 557, 559-60 (9th Cir.1994).
Show 3 more citing cases
- United States v. Davidson, 283 F. App'x 612 (10th Cir. 2008).unpublishedSee United States v. Duran, 37 F.3d 557, 559-60 (9th Cir.1994).
- United States v. Green, No. 98-5256 (10th Cir. Aug. 18, 1999).unpublished(finding that sufficient nexus existed)
- United States v. Weathersby, 89 F. App'x 683 (10th Cir. 2004).unpublished
At page 560 Determining nexus for sentencing enhancement under guidelines15 citing casesprotection of the public and rehabilitation are sufficient reasons to justify selection of a sentence at high end of range
- United States v. Robert Wingfield, 401 F. App'x 235 (9th Cir. 2010).unpublishedUnited States v. Duran, 37 F.3d 557, 560 (9th Cir.1994).
- United States v. Hammons, 558 F.3d 1100 (9th Cir. 2009).published United States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir. 2006) (citing United States v. Duran, 37 F.3d 557, 560 (9th Cir. 1994)).
- United States v. Douglas, 14 F. App'x 932 (9th Cir. 2001).unpublishedWe review de novo the district court’s interpretation and application of the Sentencing Guidelines, United States v. Charlesworth, 217 F.3d 1155, 1157 (9th Cir.2000), as well as the legal issue of whether the district court provided adequa…
- United States v. Moody, 12 F. App'x 563 (9th Cir. 2001).unpublished United States v. Duran, 37 F.3d 557, 559 (9th Cir.1994).
- United States v. Richard Aurelio Pina, United States of Am. v. David Luna, 85 F.3d 638 (9th Cir. 1996).unpublished United States v. Duran, 37 F.3d 557, 560 (9th Cir.1994). 21 Luna contends that the district court's statement of reasons for imposing a sentence at the high end of the guideline range is inadequate because it appears that the statement ref…
- United States v. Hosie James, Iii, A/K/A James Hosie, III, 46 F.3d 407 (5th Cir. 1995).publishedUnited States v. Duran, 37 F.3d 557, 560-61 (9th Cir.1994); United States v. Rosa, 11 F.3d 315, 344-35 (2nd Cir.1993), cert. denied — U.S. -, -, 114 S.Ct. 1565 , 1864, 128 L.Ed.2d 211 , 485 (1994); 18 U.S.C. § 3553 (a).
- United States v. Columbus Giddings, 37 F.3d 1091 (5th Cir. 1994).published States v. Duran, 37 F.3d at 560-61 (citations omitted). 17 .
- United States v. Castillo, 52 F. App'x 425 (9th Cir. 2002).unpublishedSee United States v. Duran, 37 F.3d 557, 560-61 (9th Cir.1994).
- United States v. Chang In Bang, 4 F. App'x 331 (9th Cir. 2001).unpublishedSee United States v. Duran, 37 F.3d 557, 560 (9th Cir.1994).
- United States v. Sno Carl Adderly, 86 F.3d 1163 (9th Cir. 1996).unpublished(protection of the public and rehabilitation are sufficient reasons to justify selection of a sentence at high end of range)
Show 3 more citing cases
- United States v. James, No. 93-02516 (5th Cir. Feb. 6, 1995).unpublishedSee United States v. Duran, 37 F.3d 557, 560-61 (9th Cir. 1994); United States v. Rosa, 11 F.3d 315, 344-45 (2d Cir. 1993), cert. denied, 114 S. Ct. 1565 (1994); see also 18 U.S.C. § 3553 (a).
- United States v. Hilary H. Hell, 95 F.3d 1159 (9th Cir. 1996).unpublished
- United States v. Jawad Miqbel, 444 F.3d 1173 (9th Cir. 2006).published
At page 558 assuming without deciding that § 3C1.2 requires a nexus between the reckless endangerment and the crime of conviction1 citing case
- United States v. John Doe, No. 17-3200 (3d Cir. May 25, 2018).unpublished(assuming without deciding that § 3C1.2 requires a nexus between the reckless endangerment and the crime of conviction)
Other citing cases
- United States v. Jose Escalante-Reyes, No. 11-40632 (5th Cir. Aug. 15, 2012).published
- United States v. Jose Escalante-Reyes, 689 F.3d 415 (5th Cir. 2012).published
- Tapia v. United States, 564 U.S. 319 (2011).published
- United States v. Southerland, 405 F.3d 263 (5th Cir. 2005).published
- United States v. Richardson, No. 97-4101 (4th Cir. Aug. 20, 1998).unpublished
- United States v. Tucker, 319 F. App'x 518 (9th Cir. 2009).unpublished
v.
Daniel W. DURAN, Defendant-Appellant
Daniel Duran appeals -his sentence for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1). He claims the district court erred by imposing an enhancement for reckless endangerment when no nexus existed between the crime for which he was convicted and his reckless behavior. Duran also claims that the district court erred by stating insufficient or improper reasons for its sentence. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
FACTS AND PRIOR PROCEEDINGS
On August 14, 1992, Duran robbed a bank in Salem, Oregon, using a sawed off shotgun. He abandoned his stolen getaway car that day. Four days later, in Oregon City, Oregon, Duran carjacked a taxicab and drove it toward Salem. The taxicab driver notified the county authorities. Later that day, Duran asked an agricultural worker in St. Paul, Oregon, for directions to the main road. He explained he was running from the law and that he wanted to get rid of the cab. He sáid he had stolen the cab in Oregon City and had also robbed a bank. The worker informed his supervisor of the incident.
The local sheriffs were alerted to Duran’s presence. His description matched that of the earjaeker. When the sheriffs tried to stop Duran’s vehicle, he refused to stop and initiated a 30 minute car chase through agricultural fields, a residential yard, and several ditches and fences. During the chase, Duran drove straight at a police car. He also caused a police car to crash. Duran was taken into custody and charged by state authorities.
. Duran was later transferred to federal authorities to face federal charges relating tó the bank robbery. He pled guilty to armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); and to use of a firearm in a crime of violence, in violation of 18 U.S.C. § 924(c)(1). The district court sentenced Duran to 115 months imprisonment for the, bank robbery and a consecutive 60 months for the use of a firearm during a crime of violence. The district court imposed a two-level enhancement for reckless endangerment during flight under U.S.S.G. § 3C1.2. The court found that the car chase “was part of the same course of conduct and in efforts to avoid apprehension due to his commission of the bank robbery, as well as stealing the motor vehicle.” Duran appeals his sentence on several grounds.
DISCUSSION
I
Duran contends that' the district court erred in imposing the enhancement for reckless endangerment during flight because no- nexus existed between the bank robbery and his reckless behavior. A district court’s findings of fact pertaining to sentencing are reviewed for clear error, United States v. Wilson, 7 F.3d 828, 839 (9th Cir.1993). The legal interpretation of guideline terms are reviewed de novo. United States v. Mondello, 927 F.2d 1463, 1465 (9th Cir.1991).
U.S.S.G. § 3C1.2 states:
If the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase by 2 levels.
Duran asserts that § 3C1.2 requires a “nexus” between the crime of conviction and the reckless endangerment. The government does not contest this assertion. No circuit has decided the issue. Because the government does not contest the nexus require[*560] ment, we will assume without so holding that U.S.S.G. § 3C1.2 requires a nexus between the crime of conviction and the reckless endangerment. We will review the district court’s finding that the car chase “was part of the same course of conduct” for clear error.
Duran argues that there was no nexus between the bank robbery and the car chase. He makes two arguments in support of this assertion. First, he argues that the car chase and the bank robbery lacked a nexus in time and location because the car chase occurred four days after the bank robbery in another location. Second, Duran argues that no nexus existed because the local authorities involved in the car chase were not chasing Duran because they suspected him of the bank robbery but because they suspected he was the carjacker who had stolen the taxicab.
A sufficient nexus exists to warrant enhancement under U.S.S.G. § 3C1.2 if a substantial cause for the defendant’s reckless escape attempt was to avoid detection for the crime of conviction. In applying the nexus test, we look to the state of mind of the defendant when he recklessly attempted to avoid capture, not to why the police were pursuing him. . The factors of geographic and temporal proximity give some indication of causation, but are not controlling determinates, particularly when the defendant’s state of mind is established. On the day of his escape attempt and capture, Duran informed an agricultural worker that he had stolen a taxicab and robbed a bank. Thus, one of the reasons he initiated the dangerous car chase was the bank robbery.
The district court found the car chase was “in efforts to avoid apprehension due to his commission of the bank robbery, as well as stealing the motor vehicle.” The district court’s findings are not clearly erroneous. There was sufficient nexus between the bank robbery and the car chase. The district court did not err in giving Duran a two-point enhancement for reckless endangerment.
II
Duran argues that the district court stated insufficient and improper reasons for sentencing him to a particular point within a guideline range of more than 24 months. We treat these issues as questions of law and review them de novo. United States v. Upshaw, 918 F.2d 789 (9th Cir.1990), cert. denied, 499 U.S. 930, 111 S.Ct. 1335, 113 L.Ed.2d 266 (1991).
If the guideline range exceeds 24 months, the sentencing judge must state the reasons for choosing a particular point in that range. 18 U.S.C. § 3553(c). [1] Duran’s sentencing range was from 80 to 115 months. After orally reviewing Duran’s background, character, and prior conduct, the district court sentenced him to 115 months, stating:
The purpose of sentencing which I must follow is not only the protection of the public, which is very clear in this case, but also to try and reach some sort of treatment that will deter you from any kind of violent activity in the future and, hopefully, we can do that while you are incarcerated.
Duran argues that the district court erred in two ways.
First, Duran argues that the district court failed to state sufficient reasons for selecting a sentence at the high end of the guideline range. The factors which a district court must consider in determining the length of a sentence “include individual considerations of background, character, and conduct, as well as the systemic goals of deterrence, rehabilitation, and consistency in sentencing.” Upshaw, 918 F.2d at 792.
Here the district court reviewed Duran’s background and criminal history and then stated the reasons for the sentence were protection of the public and rehabilitation. These reasons are sufficient. The district[*561] court specifically noted that protection of the public was “very clear in this case.... ” This is a. reflection of the judge’s oral review of Duran’s criminal history. We find this statement of reasons sufficient to justify the selection of a sentence at the high end of the range.
Second, Duran argues that the district court gave an improper reason, “reach[ing] some sort of treatment,” for the sentence. Duran relies on 28 U.S.C. § 944(k) for the proposition that a district court judge should not consider treatment as a reason for sentencing a defendant to imprisonment. [2] However, § 944(k) is a directive to the Sentencing Guideline Commission, not to the district court. The appropriate statute for us to review is 18 U.S.C. § 3582, which provides:
(a) Factors to be considered in imposing a term of imprisonment.—The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation. ...
18 U.S.C. § 3553(a) provides in relevant part:
(a) Factors to be considered in imposing a sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(D) to provide the defendant with -needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
Section 3582 distinguishes between the determinations of whether to impose a term of imprisonment and of the actual length of the imprisonment. It admonishes the court to recognize that imprisonment is not an appropriate means of promoting correction and rehabilitation. Once imprisonment is chosen as a punishment, however, § 3582 does not prohibit consideration of correction and rehabilitation in detenriining the length of imprisonment. In fact, § 3553(a) includes “correctional treatment” as a factor to be considered in determining sentence length. 18 U.S.C. § 3553(a)(2)(D). [3]
If Congress had intended to prohibit sentencing judges from considering correction and rehabilitation in setting the length of the sentence, it could have enacted a statute that admonished judges to recognize “that imprisonment or the length of imprisonment is not an appropriate means of promoting correction and rehabilitation.” It did not enact such a statute in 18 U.S.C. § 3582. We decline to extend the prohibition in § 3582 to sentence length determinations. The district court stated sufficient and proper reasons when sentencing Duran.
Duran’s sentence is AFFIRMED.
. 18 U.S.C. § 3553(c) provides in relevant part: (c) Statement of reasons for imposing a sentence. — The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence—
(1) is of the kind, and within the range, described in subsection (a)(4), and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range;
[*561] (2) the need for the sentence imposed—
. Title 28 U.S.C. § 994 provides in relevant part: § 994. Duties of the Commission
(k) The Commission shall insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.
. Once imprisonment is selected as the means of punishment, the district court may consider the length of imprisonment necessary to complete a particular prison program. For example, ordinarily a sentence of not less than 12 but not more than 30 months permits the court to commit a defendant to a Intensive Confinement Center. Operations Memorandum 249-93 (5390): Intensive Confinement Centers, Paragraphs 5 and 6 (p. 4). Also, a sentence of 18 to 24 months allows an inmate to enter, complete, and receive the fullest possible benefit under prison drug abuse programs. Operations Memorandum: 252-93 (5330), Drug Abuse Program—Inmates; (1) Chapter 7.3 (p. 11); (2) Chapter 9.2.1 (p. 13); (3) Chapter 9.3.1 (p. 15); (4) Chapter 9.4.2 (p. 18).