dissenting:

I respectfully dissent.

*1290 In determining criminal history and career offender status, U.S.S.G. § 4A1.2(e)(l) directs the sentencing judge to “count [for criminal history category calculation] any prior sentence of imprisonment exceeding one year and one month whenever imposed, that resulted in the defendant being incarcerated during any part of [the fifteen years prior to the commencement of the current offense].” Pearson maintains that, because he had escaped his confinement in Oregon prison more than fifteen years before he committed the current offense, his incarceration under the 1980 Oregon sentence ended with his escape and did not continue into the requisite fifteen-year window of time. The majority disagrees.

A densely interwoven set of Guidelines provisions governs this case:

First, Section 4B1.1 describes who shall be considered a “career offender” and what are the consequences of that determination. It provides:

U.S.S.G. § 4B1.1. Section 4B1.2, Definitions of Terms Used in Section 4-Bl.l, specifies that a defendant has “two prior felony convictions” if:

U.S.S.G. § 4B1.2(c). Section 4A1.1, which defines Criminal History Category, states, in turn:

U.S.S.G. § 4A1.1.

Following the threads further, one comes to a definition of “prior sentence” under § 4A1.2(a)(1) as “any sentence previously imposed upon adjudication of guilt.” See U.S.S.G. § 4A1.1, cmt. (“The definitions and instructions in § 4A1.2 govern the computation of criminal history points.”). “Sentence of imprisonment” has a more distinct meaning than “prior sentence.” It “means a sentence of incarceration and refers to the maximum sentence imposed.” U.S.S.G. § 4A1.2(b)(l).

Finally, only sentences imposed or served during the “Applicable Time Period,” U.S.S.G. § 4A1.2(e), may be used for the calculation of criminal history category and career offender status. Section § 4A1.2(e)(l) directs the sentencing judge to include in such calculation:

U.S.S.G. § 4A1.2(e)(1).

Section 4A1.2(e)(1) thus creates a two-pronged standard for determining whether to count a particular sentence: The first addresses sentences of incarceration imposed within the relevant fifteen-year window; the second, the one at issue here, *1291 addresses sentences of incarceration imposed prior to the beginning of that fifteen-year window, if incarceration under the sentence continues into that relevant time period.

The majority’s conclusions regarding the application of the second prong of § 4A1.2(e)(l) of the Guidelines to an individual who escaped from prison would be understandable if we were free to make policy decisions. As I read the Guidelines, however, the Sentencing Commission had a more discrete set of measures of recency of recidivism in mind than the majority posits. Nor is the Application Note to 4A1.2(e)(1) here applicable.

I come to this conclusion for the following reasons:

The appropriate treatment of escape status for purposes of counting prior sentences is specifically addressed in various subsections of the Guidelines, but not in this one. For example, § 4A1.1(d) of the Guidelines provides that the sentencing judge is to “[a]dd two points if the defendant committed the instant offense while under any criminal justice sentence, including ... escape status.” Similarly, § 4A1.1(e) provides that the sentencing judge is to “[a]dd two points if the defendant committed the instant offense ... while in- imprisonment or escape status on such a sentence [referring to those sentences described in § 4Al.l(a) and (b)].”

The Guidelines’ Background discussion with regard to § 4Al.l(d) and (e) explains that those provisions are intended to provide a “measure of recency.” The degree of detail with which the Sentencing Commission considered the import of escape for measuring recidivism and recency is suggested by the fact that § 4A1.2(n) specifically addresses when a prisoner should be considered to be on escape status for purposes of § 4Al.l(d) and (e), providing that “failure to report for service of a sentence of imprisonment shall be treated as an escape from such sentence.”

In contrast to the sections previously noted, § 4A1.2(e)(l) does not itself describe’ how escape status is to be treated. However, as the majority notes, the commentary to' that section does address the escape status question, but only, as I read it, with respect to the first sentence of § 4A1.2(e)(l), not the second.

The commentary provides that “[T]o 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). See U.S.S.G. 4A1.2(a)(3) and (b)(2).” U.S.S.G. § 4A1.2 cmt. n.2 (2001). This explanation does indicate that for purposes of the first sentence of § 4A1.2(e)(l), the fact that a prisoner never séfved any time at all because he escaped before doing so does not mean that the sentence was not a sentence of imprisonment. That description makes perfect sense in the context of the first sentence of the “Applicable Time Period,” as that sentence is concerned with the sentence imposed and not with the time that the defendant was actually in prison.

The second sentence of § 4A1.2(e)(l), however, must be directed to a different ‘‘measure of recency” than the first; otherwise, there would be no reason to have two separate provisions. That measure focuses not on the fact that the defendant committed a second crime within a certain time period after a sentence was imposed but instead on the fact that the defendant committed a second crime within a certain time period after he was in prison.

The reason for this second provision is nowhere explained. One can surmise that the concern was that a person who, having actually been in prison and subject to its attendant regime of punishment and reha *1292 bilitation, nonetheless committed a second crime shows a greater tendency toward recidivism than a person who was not imprisoned during the fifteen-year period prior to his current crime, even if both were convicted at the same time. In other words, if relatively recent incarceration did not have an impact on a defendant who meets the standards of the second sentence of § 4A1.2(e)(l), then he or she is a more hardened criminal and should receive a longer sentence.

The language of the second prong of § 4A1.2(e)(l), in my view, cannot be read in any other way. The sentence focuses on whether a prior sentence of imprisonment “resulted in the defendant being incarcerated” (emphasis added) during a certain time period. These words can only refer to the real world impact of actual incarceration, not of attributed, putative, or constructive incarceration. Nor do these words indicate concern with moral or legal judgments about the defendant’s behavior during the requisite time period.

I recognize that this reading appears to give the defendant a benefit for having escaped that he would not have attained had he not done so. To that objection my response is that the Commission clearly intended this result, and we are not at liberty to question the wisdom of it. Given the independent penalties applicable under state and federal law for the crime of escaping from prison and the Guidelines’ own incorporation of significant sentencing enhancements for those who escape, see U.S.S.G. § 2P1.1, my understanding of the Guidelines’ § 4A1.2(e)(l), if implemented, is hardly likely to encourage escapes.

In short, using all rather than some of the clues available in the pertinent Guidelines sections, I conclude that there was a discrete decision made that for purposes of this one provision only, actual incarceration should count and escape status should not. I therefore respectfully dissent.