835 F.3d 652
7th Cir.2016Background
- Marcotte was convicted of four counts of filing false federal tax refund claims and later pled guilty to failing to appear for his sentencing while released on home confinement and electronic monitoring.
- After failing to appear for his May 1, 2014 sentencing, he was indicted under 18 U.S.C. §3146(a)(1) and arrested; sentencing for both matters was consolidated.
- The Probation Office recommended a 2-level obstruction enhancement under U.S.S.G. §3C1.1 (willful failure to appear) and a 3-level enhancement under U.S.S.G. §3C1.3 based on 18 U.S.C. §3147 (offense committed while released).
- The district court adopted the PSR, applied both enhancements, calculated a total offense level of 27 (Criminal History I), and imposed a 78-month sentence (50 months concurrent on tax counts; 28 months consecutive for failure to appear).
- Marcotte appealed only the §3C1.3 enhancement, arguing (1) §3147 does not apply to failure-to-appear under §3146, (2) double counting because §3C1.1 already addresses failure to appear, and (3) Double Jeopardy violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §3147 (and thus U.S.S.G. §3C1.3) applies to a §3146 failure-to-appear conviction committed while released | Marcotte: §3147 does not apply to his failure-to-appear conviction | Government: §3147 plainly covers any offense committed while released, including §3146 failure-to-appear | Court: §3147 unambiguously applies; §3C1.3 enhancement proper |
| Whether applying both §3C1.1 (obstruction) and §3C1.3 (offense while released) impermissibly double counts | Marcotte: Two enhancements punish same conduct (failure to appear) twice | Government: Guidelines permit cumulative enhancements triggered by same conduct absent an express prohibition | Court: Cumulative application is allowed; no double counting error |
| Whether imposing §3147/§3C1.3 enhancement violates Double Jeopardy | Marcotte: Enhancement is an additional punishment and thus raises double jeopardy concerns | Government: Sentencing enhancements are not successive punishments for double jeopardy purposes; Congress may authorize cumulative punishments | Court: No Double Jeopardy violation; enhancements fall outside clause or are authorized |
| Whether any procedural apportionment error on judgment form requires remand | Marcotte: District court failed to apportion the 78-month sentence per Appl. Note 1 to §3C1.3 | Government: Argument not developed and waived; any error harmless | Court: Waived and harmless; no remand required |
Key Cases Cited
- Duong v. United States, 665 F.3d 364 (1st Cir.) (holds §3147 applies to failure-to-appear offenses)
- Fitzgerald v. United States, 435 F.3d 484 (4th Cir.) (same conclusion re: §3147 and §3C1.3)
- Dison v. United States, 573 F.3d 204 (5th Cir.) (upholds §3C1.3 enhancement for failure to appear)
- Benson v. United States, 134 F.3d 787 (6th Cir.) (same)
- Rosas v. United States, 615 F.3d 1058 (9th Cir.) (same)
- Monge v. California, 524 U.S. 721 (1998) (sentencing enhancements generally not treated as successive punishments under Double Jeopardy)
- Missouri v. Hunter, 459 U.S. 359 (1983) (Double Jeopardy does not prohibit multiple punishments authorized by Congress)
- Vizcarra v. United States, 668 F.3d 516 (7th Cir.) (Guidelines default to cumulative application of enhancements)