United States v. Chuong Van Duong
2012 U.S. App. LEXIS 247
| 1st Cir. | 2012Background
- In 2003, Duong was indicted in connection with an investment fraud scheme.
- He was released to home confinement pending trial after arrest.
- Duong entered what is essentially an Alford plea and was sentenced to five years with self-report for service.
- He fled to Canada, shed his electronic-monitoring bracelet, and was apprehended there.
- Canadian authorities returned him to the United States for further proceedings.
- A grand jury later charged him with failure to surrender; he was convicted after trial and sentenced to 15 months, with a portion tied to the surrender offense and a § 3147 enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3147 applies to § 3146(a)(2) convictions | Duong argues 3147 does not apply to 3146(a)(2). | Duong contends ambiguity and lenity favor non-application. | § 3147 applies to 3146(a)(2) offenses. |
| Whether the guideline calculation is correct with § 3147 | Note 2 prohibits 3C1.3 increase when 3147 applies. | Note 2 misapplies; 3C1.3 increases when 3147 applies. | Note 2 disregarded; 3C1.3 increase applied due to 3147. |
Key Cases Cited
- Rosas, 615 F.3d 1058 (9th Cir. 2010) (rule of lenity not invoked for unambiguous statute)
- Dison, 573 F.3d 204 (5th Cir. 2009) (application of § 3147 to failure to surrender)
- Fitzgerald, 435 F.3d 484 (4th Cir. 2006) (courts align on § 3147 applicability)
- Clemendor, 237 Fed.Appx. 473 (11th Cir. 2007) (per curiam; § 3147 applied)
- Benson, 134 F.3d 787 (6th Cir. 1998) (ambiguity and lenity considerations)