United States v. Deaon Bailes , 357 F. App'x 788 ( 2009 )

FILED
NOT FOR PUBLICATION NOV 19 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10578
Plaintiff–Appellee, D.C. No. 1:08-CR-00139-LJO-1
v.
MEMORANDUM *
DEAON BAILES,
Defendant–Appellant.
On Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted November 4, 2009
San Francisco, California
Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.
Appellant Deaon Bailes appeals the district court’s judgment sentencing him
to a 24-month term of imprisonment and a 36-month term of supervised release for
having escaped from the non-secure custody of a “halfway” house. In calculating
Bailes’s sentencing range under the United States Sentencing Guidelines
(“Guidelines”), the court denied Bailes the four-level reduction in his offense level
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
otherwise available to escapees from halfway houses on the ground that Bailes,
while at large, had committed a state offense punishable by imprisonment for more
than one year. See U.S.S.G. § 2P1.1(b)(3). The district court found that Bailes had
attempted to violate California Penal Code § 4573, which provides in pertinent part
that “any person, who knowingly brings . . . into any county, city and county, or
city jail . . . or within the grounds belonging to the institution, any controlled
substance . . . is guilty of a felony punishable by imprisonment in the state prison
for two, three, or four years.”1
We have jurisdiction pursuant to 18 U.S.C. § 3742. Reviewing the
interpretation and application of the Guidelines de novo, United States v.
Charlesworth, 217 F.3d 1155, 1157 (9th Cir. 2000), we conclude that the district
court properly denied Bailes the four-level reduction.
When reviewing a sentence, we first consider whether the district court
committed significant procedural error, and then consider the substantive
reasonableness of the sentence. United States v. Carty, 520 F.3d 984, 993 (9th
Cir.), cert. denied, 128 S. Ct. 2491 (2008). Factual findings by the district court
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An attempted violation of § 4573 is punishable by imprisonment for a term
of one, one and one-half, or two years. See Cal. Penal Code § 664(a) (requiring
that any defendant judged guilty of an attempted offense be punished by
imprisonment for one-half the term of imprisonment prescribed upon a conviction
of the attempted offense).
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are reviewed for clear error and must be supported by a preponderance of the
evidence. Charlesworth, 217 F.3d at 1157-58. The operative questions in this case
are whether Bailes possessed a specific intent to bring marijuana onto the grounds
of Rio Cosumnes Correctional Center (“RCCC”) and, if so, whether he performed
a direct act in furtherance of that design. See Cal. Penal Code § 21a (prescribing
the elements of criminal attempt).
At his sentencing hearing, Bailes testified that he had “forgotten” about the
marijuana in his pocket and that he never intended to bring marijuana onto the
RCCC’s grounds because his only purpose was to deliver a friend to the facility to
self-surrender. The district court, however, did not credit his statement that he had
forgotten about the marijuana, and found that Bailes’s own testimony indicates that
he intended to enter the RCCC’s parking lot, which was part of its grounds and was
marked by a plainly visible sign warning of § 4573. The reasons that Bailes had
for entering upon RCCC property in no way controvert the fact of his intention to
enter upon the property. Thus, the evidence in this case is more than sufficient to
support the district court’s finding that Bailes had the specific intent both to
possess a controlled substance and to bring it onto RCCC property.
Similarly, Bailes’s argument that his conduct amounted to something less
than a direct act is plainly at odds with his own testimony. Bailes testified under
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oath that he fully intended to enter upon RCCC property and, but for the deputy at
the gatehouse, would have done so, marijuana in pocket. Where such a design is
clearly shown, even slight acts in furtherance of a design to commit a crime
constitute a bona fide attempt. People v. Superior Court, 157 P.3d 1017, 1022
(Cal. 2007).
The sentence imposed by the district court is
AFFIRMED.
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