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United States v. Conley

United States Court of Appeals, Seventh Circuit

January 30, 2015

KENNETH CONLEY, Defendant-Appellant

Argued December 1, 2014.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR 986 -- Gary S. Feinerman, Judge.

For United States of America, Plaintiff - Appellee: Derek Owens, Attorney, Office of The United States Attorney, Chicago, IL.

For Kenneth Conley, Defendant - Appellant: Gary Ravitz, Attorney, Ravitz & Palles, Chicago, IL.

Before BAUER, KANNE and HAMILTON, Circuit Judges.


Page 911

Kanne, Circuit Judge.

While incarcerated in Chicago's Metropolitan Correctional Center (" MCC" ) awaiting sentencing for a bank robbery, Kenneth Conley escaped by scaling down seventeen floors of the building on a " rope" made of bed sheets. Conley pled guilty to the escape and was given a 41-month sentence, to be served consecutively to his sentence for bank robbery.

On appeal, Conley challenges his escape sentence on two grounds. First, he contends that the district court relied on the wrong provision of U.S.S.G. § 5G1.3 in imposing a consecutive, as opposed to a concurrent, sentence. Second, Conley argues that even if the district court applied the proper provision, the 41-month consecutive sentence was substantively unreasonable. We disagree and affirm the sentence.

I. Background

On October 29, 2012, Conley pled guilty to one count of bank robbery under 18 U.S.C. § 2113(a). Conley was thereafter held in custody in Chicago's downtown MCC while awaiting sentencing.

Page 912

During the early morning hours of December 18, 2012, Conley and his cellmate, Joseph Banks, escaped from the MCC. The men sawed through the bars in their narrow cell window and removed a section of concrete from the wall surrounding it. They fashioned a rope out of bed sheets, crawled through the opening, and scaled seventeen floors down the side of the building to the ground.

Conley was at large for seventeen days before he was captured. Numerous law enforcement agencies, including the United States Marshals Service and the Federal Bureau of Investigation, conducted an exhaustive manhunt for Conley. Officers of the suburban Palos Hills Police Department discovered a disguised Conley hiding out in Palos Hills, Illinois. When they approached him, Conley provided a false name. He then ran from the officers and attempted to enter a family-occupied apartment. One of the apartment's residents used physical force to block Conley's entry. Conley was taken into custody, and the United States charged him with a single count of escape under 18 U.S.C. § 751(a).

The United States Probation Office (" Probation" ) had prepared an initial presentence report (PSR) for the bank robbery conviction prior to Conley's escape. The PSR set his offense level at 32, based on the application of the career offender provision. It recommended a 2-level reduction for acceptance of responsibility. That, combined with Conley's criminal history category of VI, resulted in a guidelines range of 168 to 210 months in prison.

Not surprisingly, Probation prepared a new PSR following Conley's escape, and on May 29, 2013, Judge Samuel Der-Yeghiayan held a sentencing hearing on the bank robbery conviction. The amended PSR contained a recommendation for removing the 2-level acceptance of responsibility reduction, and it also recommended adding 2 levels for obstruction of justice, on account of the escape. This resulted in a new guidelines range of 210 to 240 months, in part because the sentence for bank robbery is capped at 240 months.[1] The court imposed a sentence of 240 months, citing the escape as evidencing a likelihood of recidivism and a lack of respect for the law. We upheld that sentence on appeal. U.S. v. Conley, 541 F.App'x 699 (7th Cir. 2013).

Conley pled guilty to the escape on October 21, 2013, pursuant to a plea agreement. On February 24, 2014, Judge Gary Feinerman conducted Conley's sentencing hearing. The crime of escape carries a base offense level of 13. Conley qualified as a career offender, because he had at least two prior felony convictions for crimes of violence: three 1996 armed robbery convictions and the 2012 bank robbery conviction. The career offender designation raised his offense level to 17. The PSR recommended a 3-level reduction for acceptance of responsibility, bringing the offense level to 14. The offense level 14 and criminal history category VI resulted in a guidelines range of 37 to 41 months.

Conley did not dispute the offense level or guidelines range calculation. The primary dispute concerned whether Conley's sentence for the escape should be imposed consecutively to or concurrently with his bank robbery sentence. Because Conley had a prior undischarged term of incarceration, the court was required to determine which of the three subsections of U.S.S.G. ...

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