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 1995-09

United States v. Brown ( 1995 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-30102
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MILTON AMOS BROWN,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. CR-94-224-I-5
- - - - - - - - - -
(October 18, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
Brown argues that the district court should have dismissed
the indictment charging him with felony escape in light of his
defense to the escape charge.   Brown moved to dismiss the
indictment on the basis that he had completed his sentence when
he resorted to self-help to end his confinement.
The validity of the conviction or sentence under which an
escapee is confined is not an element of the offense of felony
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-30102
-2-
escape.   See United States v. Smith,
    534 F.2d 74
    , 75 (5th Cir.
1976) (rejecting challenge that conviction for escape was invalid
because original sentence was illegal), cert. denied,
    429 U.S. 1100 
    (1977); see also United States v. Cluck,
    542 F.2d 728
    , 732
(8th Cir.) (an individual in federal custody cannot test the
underlying propriety of his confinement by escaping from it),
cert. denied,
    429 U.S. 986 
    (1976).     Brown's contention that the
indictment should be dismissed because his confinement was
unlawful is without merit.
Brown also argues that the district court erred in adding
three criminal history points for a previous 1983 conviction
because the actual sentence served for that conviction was less
than one year and one month and was later amended to reflect that
fact.   However, Brown's sentence of imprisonment for the firearms
offense was 15 months of imprisonment, regardless of the actual
time served.     The district court did not err in adding three
criminal history points for this offense.     See U.S.S.G.
§ 4A1.1(a) and comment. n.1.
Brown asserts that the district court incorrectly gave him
an additional criminal history point for the instant offense as
having been committed less than two years after release from
imprisonment on a sentence.     However, even if the district court
did err in imposing this additional point, any error would be
harmless because Brown would have still been in the same criminal
history category.     See Williams v. United States,
    503 U.S. 193
    ,
202-03 (1992).
AFFIRMED.