UNITED STATES of America, Plaintiff-Appellee, v. Stanley Dale PEARSON, Sr., Defendant-Appellant, 312 F.3d 1287

NOONAN, Circuit Judge: The narrow issue before the court is whether the district court correctly increased Stanley Dale Pearson’s sentence for bank robbery and escape because he had a previous conviction that resulted in him being “incarcerated.” See U.S. Sentencing Guidelines § 4A1.2(e)(l) (2001) (U.S.S.G.). Within the fifteen years before he committed the current crimes, Pearson had been sentenced to ten years imprisonment. Under the usual circumstances, this sentence would have been counted under U.S.S.G. § 4A1.2(e)(l).

Pearson had escaped that confinement and so was not physically incarcerated during the critical period. We hold that the time during which Pearson was on escape status under his 1980 conviction was correctly counted as a period of “incarceration” under § 4A1.2(e)(1). BACKGROUND On December 15, 1998, Stanley Dale Pearson was indicted on two counts of bank robbery in violation of 18 U.S.C. § 2113(

a) and one count of escape in violation of 18 U.S.C. § 751. Pearson entered a guilty plea and was sentenced to concurrent sentences of 151 months of incarceration on each count of bank robbery and 60 months of incarceration on the escape count. The district court included in its sentencing calculation, for both criminal history and career offender purposes, a conviction Oregon had imposed on Pearson in April 1980. Under the 1980 conviction Pearson was sentenced to ten years in state prison.

He began serving that sentence but escaped on December 4, 1981 and remained at large until he was arrested on April 21, 1982, on federal bank robbery charges. Pearson was incarcerated on these charges in federal prison and remained in confinement until he was paroled on November 4, 1997. On August 1,1986, Oregon administratively discharged Pearson from serving the remainder of his April 1980 sentence. The district court used the 1980 Oregon conviction and sentence as well as the 1982 federal convictions and sentence to classify Pearson as a career offender under U.S.S.G. § 4B1.1.

Pearson appeals his sentence on the ground that the 1980 conviction was improperly included in the calculation. ANALYSIS We confront Pearson’s contention with a principle fundamental to our law: No one should profit from his legal wrong. See Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188, 190 (1889). Pearson committed the crime of escape. Ergo, his crime should not reduce his punishment. The commentary on U.S.S.G. § 4A1.2(

e) explicitly provides: “To qualify as a sentence of imprisonment, the defendant must actually have served a period of imprisonment on such sentences (or, if the defendant escaped would have served time).” As interpreted by the commentary, the guideline indicates that escape time counts as imprisonment time. So Pearson gains no advantage by being physically out of custody. The dissent notes that the Guidelines have at several points taken care to specify “escape status.” See, e.g., §§ 4A1.1, 4A1.1(e), and 4A1.2(2). Failure to be explicit in § 4A1.2(

e) could be read as deliberate omission, as the dissent reads it, or the omission could be treated as unintentional and not a deliberate deviation from the general equation of escape to imprisonment. The general principle denying that one profit from one’s crime counsels the latter reading. The dissent presents such a tightly woven argument that it is desirable to indicate where precisely it goes astray.

Section 4A1.2(e), which defines “Applicable Time Period,” reads: Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year-period. This sub-section should be read as a unit.

Its second part expands the possible universe of “prior sentences” in the first part to include those for which the defendant received a sentence before the applicable fifteen-year window and for which his incarceration continues into the fifteen-year window. For example, a defendant who was sentenced to prison sixteen years ago and served a five-year sentence would have that sentence counted in the calculation. A defendant who was sentenced twenty years ago and served a four-year sentence would not have that sentence counted. The commentary to § 4A1.2(

e) provides, “To qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence (or, if the defendant escaped, would have served time).” U.S.S.G. § 4A1.2 cmt. 2 (2001). The commentary applies to all of the sub-section. The commentary addresses one measure of recency. To find two different measures of recency embedded in the same provision is to suppose that the Guidelines contradict themselves. AFFIRMED.