United States v. Gowing and Scheringer
683 F.3d 406
| 2d Cir. | 2012Background
- Gowing and Scheringer were convicted of a decade-long multimillion-dollar fraud scheme.
- Gowing continued to take actions to further the conspiracy after his arrest and while awaiting trial on the same charges.
- § 3147 imposes an additional sentence for an offense committed while released, applicable during pretrial release.
- Gowing argues § 3147 should not apply when the same conspiracy is continued, not a separate offense.
- The district court applied § 3147 to enhance Gowing’s sentence for continuing the same conspiracy while released.
- Recorded calls and post-arrest conduct evidence show Gowing’s ongoing involvement after his release and prior to trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3147 applies to continued conduct of the same offense while released | United States argues § 3147 applies to any offense committed while released | Gowing argues § 3147 requires a separate offense, not continuation of the same conspiracy | § 3147 applies to continued same-offense conduct on release |
| Whether the jury instructions properly reflected § 3147 applicability | United States contends jury properly instructed on elements of § 3147 | Gowing contends instructions could misstate ‘released’ period | No reversible error; instructions sufficiently encompassed elements of § 3147 |
| Whether the sentence allocation between conspiracy and § 3147 complied with Stevens | United States argues allocation within Guidelines is permissible post-Booker | Gowing argues allocation violated Stevens’ method | Any error was not plain or prejudicial; overall sentence unaffected |
| Whether any asserted error was plain and affected substantial rights | United States maintains no prejudicial error | Gowing asserts potential Apprendi-related error | Any error reviewed for plain error but found not to affect substantial rights |
| Whether the district court properly applied § 3147 to Gowing given the conspiracy continued on release | United States maintains plain-text and legislative history support application | Gowing contends the interpretation is incorrect | Court held § 3147 applicable to continued offense on release |
Key Cases Cited
- United States v. Weingarten, 632 F.3d 60 (2d Cir. 2011) (de novo review of § 3147 issues by appellate court)
- United States v. Hsu, 669 F.3d 112 (2d Cir. 2012) (reaffirmed standard for reviewing sentencing issues on appeal)
- United States v. Confredo, 528 F.3d 143 (2d Cir. 2008) (Apprendi applicability to § 3147)
- United States v. Palacio, 4 F.3d 150 (2d Cir. 1993) (limitations on deference to Sentencing Commission interpretations)
- United States v. DePierre, 131 S. Ct. 2225 (2011) (no deference to guidelines on statutory interpretation)
- United States v. Stevens, 66 F.3d 431 (2d Cir. 1995) (allocation of sentence between offenses (Stevens framework))
- United States v. Booker, 543 U.S. 220 (2005) (end of mandatory Guidelines era; context for sentencing schemes)