Enhancement for Committing an Offense While On Release Applies to One Convicted of Failing to Appear

United States v. Dison, No. 08-30786 (5th Cir. June 23, 2009; rev. July 24, 2009) (Wiener, Dennis, Clement)

If you get convicted of failing to report for service of a sentence, can you also receive a sentence enhancement for committing an offense while on release, even though the only way you could have failed to appear was because you were on release in the first place? Dison answers that vexing question—which has divided courts—"yes." Fortunately, the enhancement does not authorize a sentence in excess of the maximum for the failure-to-appear offense, as the court explains in a short jaunt through Apprendi-land.

Okay, from the top: Let's say that, like Dison, you fail to appear for service of a sentence. Three provisions become relevant:

• 18 U.S.C. § 3146(a)(2) makes it a crime to fail to report for service of sentence. The punishment varies, depending on the nature of the offense for which the sentence was imposed, but in all cases "shall be consecutive to the sentence of imprisonment for any other offense." § 3146(b)(2).
• 18 U.S.C. § 3147 provides that "[a] person convicted of an offense while released under this chapter shall be sentenced, in addition to the sentence prescribed for the offense, to" up to 10 years if the offense is a felony, or up to 1 year if the offense is a misdemeanor. Section 3147 further provides that "[a] term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment."
• U.S.S.G. §3C1.3 calls for a 3-level enhancement "[i]f a statutory sentencing enhancement under 18 U.S.C. § 3147 applies. The guideline also directs the sentencing court to "divide the sentence on the judgment form between the sentence attributable to the underlying offense and the sentence attributable to the enhancement[,]" in order to comply with § 3147's consecutiveness requirement.
  

Dison was convicted of a § 3146 failure-to-appear, subject to a five-year statutory maximum. The PSR applied the 3-level enhancement under §3C1.3 when calculating the Guidelines range. The district court overruled Dison's objection to the enhancement, and imposed a sentence of 21 months' imprisonment—the bottom of the 21- to 27-month range—apportioning 5 of those months to the § 3147 enhancement.

On appeal, Dison argued "that the § 3147 enhancement should not apply when the sole offense committed while on release is failure to appear, which by definition can only be committed while on release. She argues that the § 3147 enhancement as applied to a § 3146 offense (1) is ambiguous and should thus be interpreted in favor of lenity, and (2) constitutes improper double-counting, thereby violating the Double Jeopardy Clause."

The court rejected the lenity argument, finding the statutes' language plain and unambiguous, and not productive of an absurd result. According to the opinion, three other circuits have also so held.

Is that right? Is there really nothing absurd about requiring not only that a sentence for failing to report be consecutive to the sentence for the earlier offense, but also that an additional sentence be imposed consecutive to the failure-to-appear sentence? If not absurd, it's at least a bizarre way to structure the sentence for a failure-to-appear.

As for the Double Jeopardy issue, the court said:

Dison contends that even if the § 3147 enhancement could be read as extending to the § 3146 offense of failure to appear, the enhancement as applied to her violates the Fifth Amendment’s Double Jeopardy Clause because it “exposes Ms. Dison to multiple punishments for the same offense.” It is true that Dison is subject to the § 3147 enhancement for having failed to appear while on release even though she committed that offense in the only manner possible, viz., while on release. Yet, assuming arguendo that the enhancement subjects Dison to double counting, “such an application would not necessarily violate the double jeopardy clause.” “The [Supreme] Court has . . . defined the nature of double jeopardy protection by stating: ‘[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.’”

Here, there was a single prosecution for Dison’s offense of failure to appear. And, we know that cumulative punishment, to the extent any exists, is within the intent of Congress because the “Guidelines are explicit when double counting is forbidden.” Under the doctrine of inclusio unius est exclusio alterius, “only if the guideline in question expressly forbids double counting, would such double counting be impermissible.” Section 3147 contains no prohibition against cumulative punishment. We presume, therefore, that Congress intended to impose it; there is thus no double jeopardy violation.

We continue briefly to emphasize that the instant case is not one in which we must determine whether Congress intended to permit a defendant to be convicted of, and sentenced for, two offenses that penalize the same underlying conduct. If that were the case, we would require a “clear and definite legislative directive” indicating that Congress intended both punishments. Instead, our precedent establishes that § 3147 provides only a sentence enhancement and does not constitute an independent offense or an element thereof. This analysis is consistent with the Supreme Court’s decision in Apprendi, which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi is inapplicable to “a fact used in sentencing that does not increase a penalty beyond the statutory maximum.” And, regardless of the fact that § 3147 calls for punishment “in addition to the sentence prescribed” for the underlying offense, the § 3147 enhancement can never result in a sentence in excess of the statutory maximum prescribed for the offense committed while on release, here failure to appear. Our foregoing analysis of the subject sentencing scheme therefore stands without the need for any additional scrutiny.

I'm not sure the Apprendi issue is as simple as the court makes it out to be. (Anyone with thoughts on that question is welcome to leave a comment.) Nevertheless, the important point to take away is that, according to Dison, § 3147 does not authorize a sentence in excess of the maximum for the offense committed while on release.