*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 15 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. SHAWN L. DIGHERA, Defendant-Appellant. No. 98-3189 (D. Kan.) (D.Ct. No. 97-CR-40072)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

Appellant Shawn Dighera appeals his seventy-month s entence following his-2-

guilty plea and conviction for possession of 340 gr ams of a substance containing a detectable quantity of methamphetamine with inten t to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Mr. Dighe ra contends the district court incorrectly used his prior state sentence to six mo nths in a conservation or “boot” camp, as a “sentence of imprisonment” under United States Sentencing Guidelines §§ 4A1.1 and 4A1.2 for the purpose of calculating h is criminal history and sentence. Mr. Dighera suggests Kansas conservationcamp programs are similar to community-based correctional programs, such as p lacement in a halfway house, and therefore, should be assessed at one, not two, criminal points for the purpose of calculating his criminal history and sentence. We affirm.

We begin by noting Mr. Dighera did not object to th e calculation of his criminal history score prior to his appeal. Thus, we review the district court’s interpretation of the Sentencing Guidelines in calc ulating his sentence for plain

error. See Fed. R. Crim. P. 52(b); United States v. Farnsworth, 92 F.3d 1001, 1007 (10th Cir.), cert. denied, 519 U.S. 1034 (1996). Under U.S.S.G. § 4A1.1, the district court must add three points for each p rior “sentence of imprisonment” exceeding one year and one month, two points for ea ch prior “sentence of imprisonment” of at least sixty days, and only one point for each prior “sentence” not counted in the other two categories. U.S.S.G. § 4A1.1 (a) - (c). Under-3-

U.S.S.G. § 4A1.2(b)(1), “[t]he term ‘sentence of imprisonment’ means a sentence of incarceration and refers to the maximum sentence imposed.” In the Commentary to U.S.S.G. § 4A1.1, “confinement senten ces” longer than one year and one month or more than sixty days, are distingu ished from “all other sentences, such as confinement sentences of less th an sixty days, probation, fines and residency in a halfway house.” U.S.S.G. § 4A1. 1, comment. (backg’d).

In this case, the district court interpreted the te rm “sentence of imprisonment” to include Mr. Dighera’s six-month se ntence to a state conservation camp and therefore added two criminal points to his criminal history score. In challenging the district court’s interpr etation, Mr. Dighera relies on statutory language, including Kan. Stat. Ann. § 21- 4703(o), which states “nonimprisonment” means conservation camps or othercommunity-based dispositions, and Kan. Stat. Ann. § 21-4603d(11) (r epealed July 1, 1997), which states a “defendant shall not be sentenced to impri sonment, if space is available in the conservation camp.” In further support of his contention that conservation camps involve community-based sentences instead of incarceration, Mr. Dighera notes that while he was incarcerated at the “Labett e Boot Camp,” he attended1 While Mr. Dighera’s counsel contends Mr. Dighera attended Washburn

University in Topeka, Kansas, during boot camp, the record shows he attended the University after completing boot camp.

-4- classes at the Labette Community College 1 – making the camp more akin to a community-based program. We disagree.

We have previously distinguished sentences involvin g physical confinement, such as incarceration at a prison camp , from non-secured custody such as placement at a halfway house. See United States v. Brownlee , 970 F.2d 764, 765-66 & n.1 (10th Cir. 1992) (holding that in carceration in a federal prison camp is unlike placement in non-secure custody faci lities, such as community corrections centers, community treatment centers an d halfway houses, where there is no physical restraint). Similarly, in interpret ing a “sentence of imprisonment” under U.S.S.G. §§ 4A1.1 and 4A1.2, we determined drug treatment under the Narcotic Addict Rehabilitation Act, 18 U.S.C. §§ 42 51 - 4255 (repealed Nov. 1, 1984), constituted a “sentence of imprisonment” bec ause it involved physical confinement during treatment in a facility or the f ederal penal system. See United States v. Vanderlaan , 921 F.2d 257, 259 (10th Cir. 1990) (noting that physical confinementis a key distinction between sentences of imprison ment and other types of sentences), cert. denied, 499 U.S. 954 (1991).-5-

Having determined that physical confinement demonst rates a “sentence of imprisonment,” we must look at whether Mr. Dighera’ s placement in the state conservation camp served as a “sentence of imprison ment” for the purposes of U.S.S.G. §§ 4A1.1 and 4A1.2. Although nothing in t he record establishes whether Mr. Dighera was physically confined, we not e that under Kansas law, the Labette Correctional Conservation Camp where Mr. Di ghera was sentenced is considered a minimum security“boot camp” authorized under Kan. Stat. Ann. § 75-52,132. See State v. Benoit , 898 P.2d 653, 657 (Kan. Ct. App. 1995). Kansas case law further establishes that even thoug h the Labette “boot camp” is operated as a private business, it is considered a state correctional facility governed by the Kansas administrative regulations f or the Kansas Department of Corrections, its correctional officers are consider ed law enforcement officers, and its employees are ultimately accountable to the Kan sas Secretary of Corrections. Id. at 660-61; see also Kan. Stat. Ann. § 75-52,127 (stating Kansas conservation camps shall be a state correctional institution or facility of confinementunder the supervision of the Secretary of Corrections).

These factors clearly establish Mr. Dighera was phy sically confined in a secured correctional facility and, therefore, his s entence to the state boot camp constituted a “sentence of imprisonment” within the meaning of U.S.S.G.-6-

§§ 4A1.1 and 4A1.2. See United States v. Brooks , 166 F.3d 723, 726-27 (5th Cir. 1999) (finding that because defendant was not free to leave state boot camp, his confinement fell into the category of incarceration eligible for § 4A1.1(b) treatment). While Kan Stat. Ann. § 21-4703(o) defi nes “nonimprisonment” as conservation camps or other community-based disposi tions, we conclude that this definition is not dispositive in determining whethe r conservation camps are “sentences of inprisonment” for the purpose of fede ral Sentencing Guidelines. For these reasons, we conclude the district court c orrectly calculated Mr. Dighera’s sentence by adding two criminal points fo r his incarceration in the boot
camp.

In light of our decision that Mr. Dighera was physi cally confined in a secured boot camp, the fact he attended college cla sses is neither persuasive nor dispositive of the confinement issue. Moreover, th e record does not clearly indicate whether Mr. Dighera left the camp to atten d classes or whether he attended classes offered at the camp itself or thro ugh correspondence. In addition, while his ability to attend classes argua bly indicates that his sentence was rehabilitative in nature, the purpose behind an incarceration is not a key factor in determining whether a sentence is a “sent ence of imprisonment” under the sentencing guidelines. Vanderlaan , 921 F.2d at 259.-7-

For these reasons, we AFFIRM Mr. Dighera’s sentence.

Entered by the Court: WADE BRORBY United States Circuit Judge