United States v. Carlton McIntosh, 2012 U.S. App. LEXIS 25327

McIntosh has a long history of federal offenses and violations of supervised release stemming from an initial 1994 bank fraud conviction.
He repeatedly violated release conditions or committed new crimes, leading to multiple revocations and renewed imprisonment.
In 2009, after a revocation for supervised release, he was ordered to surrender on January 8, 2010 and to surrender to the U.S. Marshals; the district court also considered designating a facility closer to home.
December 21, 2009 allowed self-surrender to a designated institution, but no specific surrender date was set in that order; January 8, 2010 remained the operative surrender date.
McIntosh did not surrender on January 8, 2010, fled to Tennessee, was apprehended February 3, 2010, and was later convicted at bench trial of failing to surrender for service of a prison sentence under 18 U.S.C. § 3146.
He was sentenced to 60 months’ imprisonment followed by 36 months of supervised release, and the district court affirmed on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the government proved wilfulness for § 3146(a)(2).	McIntosh argues no specific surrender date/place were set; wilfulness not proven.	McIntosh contends lack of clear surrender instructions defeats wilfulness.	Yes; wilfulness proven; continuing offense doctrine supports liability.
Whether failure to surrender is a continuing offense for § 3146(a)(2).	McIntosh asserts the offense was not continuing due to lack of definite surrender time/place.	Prosecution argues failure to surrender is a continuing offense like escape.	Yes; failure to surrender is a continuing offense as of the latest date at issue.
Whether the sentencing under § 3146(b) was proper given the underlying sentence for supervised release.	McIntosh says § 3146(b) has no punishment for a violation tied to supervision-release term.	Wyatt/Jones approach treats post-revocation penalties as tied to the original sentence.	Five-year maximum under § 3146(b)(1)(A)(ii) applies, consistent with the underlying escape conviction.

United States v. Lechuga, 975 F.2d 397 (7th Cir. 1992) (elements for § 3146(a)(1) violation)
United States v. Elliott, 467 F.3d 688 (7th Cir. 2006) (failure to report for service treated as continuing offense)
Johnson v. United States, 529 U.S. 694 (U.S. 2000) (post-revocation penalties attributed to original conviction)
United States v. Wyatt, 102 F.3d 241 (7th Cir. 1996) (supervised release is part of original sentence)
United States v. Knorr, 942 F.2d 1217 (7th Cir. 1991) (precedent on continuing offense discussion (distinguishing later views))
United States v. Lopez, 961 F.2d 1058 (2d Cir. 1992) (failure to appear for sentencing as a continuing offense)
United States v. Green, 305 F.3d 422 (6th Cir. 2002) (continuing offense analysis for failure to surrender or appear)
United States v. Alcarez Camacho, 340 F.3d 794 (9th Cir. 2003) (continuing offense for failure to appear for service)
United States v. Martinez, 890 F.2d 1088 (10th Cir. 1989) (continuing offense concept for related violations)
United States v. Vaughn, 585 F.3d 1024 (7th Cir. 2009) (standard for sufficiency review of evidence)
United States v. Olson, 450 F.3d 655 (7th Cir. 2006) (sufficiency review framework)