* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### OCT 14 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JAMES PAUL MANGHAM,

Defendant-Appellant. No. 96-6175 (D.C. No. CR-95-131-C) (W.D. Okla.)

ORDER AND JUDGMENT *
Before BRORBY, LOGAN, and HENRY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Defendant James Paul Mangham appeals his sentence, imposed after he pleaded guilty to distributing methamphetamine. He argues that the district court erred in assessing three criminal history points re lated to his former conviction for negligent homicide. Because the district courtdid not err in finding that defendant was on escape status when he committed th e drug offense, we affirm. In July 1989, defendant was convicted of negligent homicide and received a one-year sentence. Defendant posted bond and remai ned at liberty while his case was pending before the Oklahoma Court of Criminal Appeals. On September 5, 1993, the appellate court affirmed defendant’s conv iction. Defendant’s attorney mailed him notice of the decision, but the letter w as returned undelivered. Further investigation revealed that defendant’s address was not listed in the phone book and his number was unpublished. A second lett er was returned to defendant’s attorney in November 1993 with a notation th at defendant’s forwarding address had expired. Defendant did not report to s erve his sentence and on December 9, 1993, a bench warrant was issued for hi s arrest. Defendant was arrested for the instant federal drug offense in late September 1995. At sentencing the district court assesse d two criminal history points for committing the offense while on escape status, purs uant to USSG § 4A1.1(d), and one criminal history point for committing the offen se within two years of the date1 Oklahoma state law, requiring that a prisoner firstbe in custody before he

can be guilty of escape, is irrelevant to defendant ’s sentencing under the federal guidelines. -3- he would have been released had he served his negli gent homicide sentence, pursuant to USSG § 4A1.1(e). Defendant appealed. Defendant argues that the district court erred in f inding him in escape status because he has never been confined, and because the government did not show that he intentionally failed to report to serv e his sentence. He argues further that the plain language of the Sentencing Guideline s does not authorize the court to calculate when defendant would have been release d from imprisonment had he served his sentence, requiring instead an actual re lease date. In reviewing the district court’s application of the Sentencing Guid elines, we review its factual determinations for clear error and its legal conclu sions de novo. See United States v. Guerrero-Hernandez , 95 F.3d 983, 986 (10th Cir. 1996). Section 4A1.1(d) of the Sentencing Guidelines requi res assessment of two criminal history points if a defendant committed th e offense for which he is being sentenced while under any criminal justice sentence , including a sentence from which he has escaped. Failure to report for servic e of a sentence is treated as an escape from such sentence. 1 See USSG § 4A1.2(n); id. , § 4A1.1, comment. (n.4). It is undisputed that defendant failed to report wh en required to serve his sentence-4-

of imprisonment. The Sentencing Guidelines do not require a showing that defendant’s failure to report was knowing or intent ional. Even if we were inclined to read an intent requirem ent into the Sentencing Guidelines it would be met here. For more than two years after his conviction was affirmed, defendant failed to inform his attorn ey of his whereabouts or to apprise himself of the status of his case. Under these circumstances defendant’s failure to report can be deemed knowing or intentio nal. See United States v. Martinez , 890 F.2d 1088, 1093 (10th Cir. 1989) (discussing failure to surrender for sentence after conviction affirmed on appeal; n oting that “[a] person released on [appeal bond] can be charged with a gross deviat ion from the standard of conduct applicable to the ordinary person when he f ails to keep in touch with the status of his case or places himself out of reach o f the authorities and his attorney.”) (quotation omitted); United States v. Yates , 698 F.2d 828, 830-31 (6th Cir. 1983) (holding defendant could be convicted of wilf ully failing to report to serve his sentence based on his conduct of moving from hi s former address, not notifying his attorney of his whereabouts, and using a fa lse name). Because USSG § 4A1.1(e) authorizes imposition of a criminal history point if the offense was committed while defendant was inescape status from a sentence of at least sixty days, we need not determine whether the district court erred in assessing a point based on defendant’s commissio n of the offense within two-5-

years of the date he would have been released had h e reported to serve his
sentence. AFFIRMED. Entered for the Court James K. Logan Circuit Judge