United States v. Edward John Moss

Edward Moss appeals his sentence under the United States Sentencing Guidelines (“Guidelines”), following a guilty plea, for escape in violation of 18 U.S.C. § 751 (a). Moss contends that the district court erred by ordering his sentence to run consecutively to the pre-Guidelines sentence he was serving when he escaped. We dismiss the appeal.

A district court’s discretionary refusal not to depart downward is not reviewable on appeal. United States v. Lail, 963 F.2d 263, 264 (9th Cir.1992).

The relevant facts are undisputed. On June 28, 1991, Moss escaped from a federal correctional institution where he was serving concurrent pre-Guidelines sentences for conspiracy to import a controlled substance and a parole violation. He was arrested on July 23, 1991. He pled guilty to the escape charge. The district court sentenced him to a term of 9 months to run consecutively to his prior terms. Neither party contends that the district court did not exercise its discretion by ordering consecutive sentences.

Moss contends that there should be a per se rule requiring the district court to depart downward by ordering a concurrent sentence for a defendant who commits a subsequent crime while…