(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
1
IN THE UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_________________________
Nos. 94-30407
94-30386
(Summary Calendar)
_________________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
JULIO RIEPELE,
Defendant-Appellant.
Consolidated With
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEROME GAMBINO,
Defendant-Appellant.
____________________________________________________
Appeal from United States District Court
for the Middle District of Louisiana
CR-94-9 consolidated with CR-94-10-B-M2
__________________________________________________
March 24, 1995
Before DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:*

-- 1 of 9 --

Pursuant to that Rule, the Court has determined that this opinion
should not be published.
Julio Riepele and Jerome Gambino appeal the district
court determination that they were not entitled to a four-level
reduction in the offense level for escaping from a "community
corrections center, community treatment center, halfway house" or
similar facility under § 2P1.1(b)(3) of the federal sentencing
guidelines. Riepele also contends that the district court
demonstrated judicial bias during sentencing and that he should
have been given a closed sentencing hearing. For the following
reasons, the sentences of Riepele and Gambino are affirmed.
BACKGROUND
Riepele:
Julio Riepele is a native of Guatemala who came to the
United States when he was five years old. He has three convictions
for drug-related offenses. Riepele was deported in 1992. He
reentered this country without permission and was subsequently
convicted of conspiracy to import marijuana and was sentenced to
forty-four months at Federal Medical Center, Carville, Louisiana
(FMC Carville), from which he escaped. After he was recaptured,
Julio Riepele pleaded guilty to escape from the FMC Carville and
the district court sentenced him to a term of twenty-four months of
imprisonment to run consecutive to his undischarged term of
imprisonment.
Gambino:
Jerome Gambino was serving a 108-month sentence for a
1993 cocaine conviction at FMC Carville from August 17 until

-- 2 of 9 --

3 3
November 3, 1993, when he was discovered missing without
permission. He voluntarily surrendered to law enforcement
authorities on March 7, 1994, in New Orleans, Louisiana. Jerome
Gambino pleaded guilty to unlawful escape from custody in FMC
Carville and the district court sentenced him to serve eighteen
months in prison and two years supervised release. Gambino's
sentence was imposed to run consecutively to his undischarged term
of federal imprisonment.
DISCUSSION
Issue 1: Status of FMC Carville
Both Riepele and Gambino contend that the district court
erred in finding that they were not entitled to a reduction in
offense level pursuant to U.S.S.G. § 2P1.1(b)(3). In relevant
part, U.S.S.G § 2P1.1(b)(3) provides that a defendant who escapes
from "the non-secure custody of a community corrections center,
community treatment center, 'halfway house', or similar facility"
is entitled to a four-level reduction in offense level.
A facility is similar to those listed in U.S.S.G. §
291.1(b)(3) if it is non-secure and if it is a facility similar to
a community corrections center, community treatment center, or
halfway house, i.e., facilities designed to integrate their
residents into the community. United States v. Shaw, 979 F.2d 41,
45 (5th Cir. 1991). This determination is a factual finding which
this court reviews for clear error. Shaw, 979 F.2d at 44 n.3;
United States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir.), cert.
denied, 114 S. Ct. 259 (1993).

-- 3 of 9 --

4 4
The district court found that although FMC Carville was
a non-secure facility, it was not similar to a community
corrections center, community treatment center, or halfway house.
FMC Carville is located one mile from the city of Carville,
Louisiana but 20-25 miles from Baton Rouge, Louisiana, the nearest
large city. Its guards are unarmed and the facility is not secured
at its perimeter. Residents are called inmates and their stay is
termed an incarceration. Inmates stay on site, have restricted
visiting hours, must request furloughs in advance. They are not
free to leave the premises. Inmates are counted five times each
weekday and six times on the weekend. FMC Carville includes
release planning in its orientation handbook which outlines the
procedure for referral to community corrections centers.
Upon due consideration of the record, we find no clear
error in the district court's decision finding that FMC Carville is
not a facility similar to a community corrections center, community
treatment center, or halfway house. Although FMC Carville is
clearly a non-secure facility, its location, counting procedure and
furlough policy mark it as a prison not a community corrections
center or similar facility.
In United States v. Shaw, 979 F.2d 41 (5th Cir. 1992),
this court was faced with the question of whether a prison camp
that kept its residents on site all day was similar to a community
corrections center, community center, or halfway house. We noted
that a major difference between a community center and a prison is
that at community centers the individual returns to the center each

-- 4 of 9 --

5 5
evening after participating all day as a member of the community
work force. Id. at 43. We also noted that prisons separate people
from the "outside" world. Id. This court held that under these
conditions the prison camp did not fall under U.S.S.G. §
2P1.1(b)(3). Shaw, 979 F.2d at 45.
Similarly, in the instant case, individuals are also
confined all day at FMC Carville. The inmates at FMC Carville are
also kept separated from the outside world. Thus, like the prison
camp in Shaw, FMC Carville is not similar to the facilities listed
in U.S.S.G. § 2P1.1(b)(3). It does not bear the hallmarks of a
facility integrated into the community. See Shaw, 979 F.2d at
45(citation omitted).
Riepele and Gambino argue that FMC Carville is similar to
the facilities cited in § 2P1.1(b)(3) because the prison was
integrated with the Carville facility which serves patients with
Hansen's disease. We find this argument to be without merit. In
Shaw, this court stated that the function of a community center and
other similar facilities is to integrate people into society
outside the prison. See id. at 55. In this case, the inmates at
FMC Carville are not being integrated into outside society; they
are only interacting with an associate community located on the
same site. Riepele and Gambino argue that this court should
reject Shaw and apply United States v. Hillstrom, 988 F.2d 448, 453
(3rd Cir. 1993). In Hillstrom, the Third Circuit Court of Appeal
held that a § 2P1.1(b)(3) similarity determination should include
consideration of the facility's security policies compared to both

-- 5 of 9 --

6 6
the pre-release and the corrections components of a community
corrections center, as well as the safety ramifications involved in
a prison escape. Id. at 452-53.
Riepele's and Gambino's arguments are without merit.
First, Shaw, not Hillstrom, is the law in this Circuit. See United
States v. Eckford, 910 F.2d 216, 220 (5th Cir. 1990)(a panel from
another circuit cannot overrule a panel from this circuit).
Second, the district court did consider the potential danger
resulting from an escape from FMC Carville as part of its
§ 2P1.1(b)(3) determination. Third, the district court compared
FMC Carville to community centers as defined in Hillstrom and still
denied the four-level reduction.
Issue 2: Judicial Bias
Riepele contends that certain comments of the district
court show bias and prejudice toward alien defendants. He argues
that the district court's alleged prejudice caused it to deny
Riepele's motion for a closed sentencing hearing, and that the lack
of a closed hearing resulted in the judge's decision not to depart
downward from the guidelines.
Judicial remarks that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily
do not support a bias or partiality challenge. Litkey v. United
States, ____ U.S. ___, 114 S.Ct. 1147, 1157 (1994). They may do so
if they reveal an opinion that derives from an extrajudicial
source; and they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible. Id.

-- 6 of 9 --

7 7
Not establishing bias or partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women, even after
having been confirmed as federal judges, sometimes display. Id.
Our examination of the record reveals that Riepele did not make
this objection at the district court level, thus we review this
contention for plain error. United States v. Rodiguez, 15 F.3d
408, 414 (5th Cir. 1994). Under this standard the error must be
plain, clear, or obvious. Id. at 415.
After imposing sentence, the district court commented
that:
the best thing that could happen to the people
of the United States is that when you get
through serving all your sentence, that the
INS kick you out of this country. We do not
want you here. We do not need your type here
in this country.
And if you want to stay in this country, you
have got to live by the rules and regulations
and you are not living by the rules and
regulations and I love to do naturalization, I
love to make people citizens from foreign
countries but I do not like people who do not
belong here to be coming here and violating
the laws of this country and hurting people
and [the] distribution of drug[s] hurt[s]
people.
So, the best thing for the people of the
United States is that the INS should really
get you out of this country after you serve
your sentence.
Maybe you ought to take that as an indication
that you ought not to come back here, okay.
Riepele's guideline sentence range was twenty-four to thirty
months. Before making this remark, the district court sentenced

-- 7 of 9 --

8 8
him to the lowest guideline sentence, twenty-four months.
We find Riepele contention to be without merit. First,
Judge Polozola's comments do not suggest that he is prejudiced
against aliens, but that he does not approve of repeat drug
offenders. Second, Riepele's sentence to the lowest possible
guideline sentence belies his contention of judicial prejudice.
Finally, Riepele has failed to demonstrate that Judge Polozola
"display[ed a] clear inability to render fair judgment." Liteky v.
United States, ___ U.S. ___, 114 S. Ct. 1147, 1155 (1994). We thus
find no plain error in these remarks.
Riepele contends that the district court erred by
failing to grant a closed sentencing hearing. Riepele requested
that the district court close the sentencing hearing because he
wished to testify that he had escaped because his life had been
threatened by members of the Cali drug cartel because he had
cooperated with the U.S. Customs service. Riepele argues that, if
the district court had granted his motion for a closed hearing, he
could have convinced the court to depart downward.
Riepele has failed to demonstrate that the district
court's refusal to depart from the guidelines based on Riepele's
alleged reason for escaping was in violation of law. United States
v. Adams, 996 F.2d 75, 78-79 (5th Cir. 1993). As there is no
indication of a violation of law, this issue provides no basis for
appellate review. See Adams, 996 F.2d at 79.
CONCLUSION

-- 8 of 9 --

9 9
For the foregoing reasons, the convictions of Riepele and
Gambino are AFFIRMED.

-- 9 of 9 --