*2 SHEDD, Circuit Judges. chapter 207 of Title 18 of the United sentenced,
States Code “shall be in addi- tion to the prescribed sentence for the offense to a term imprisonment years not more than ten imprisonment if the offense is a felony....” Section 2J1.7 “incorporates provision this guide- into the OPINION by requiring lines a three-level increase to SHEDD, Circuit Judge. base offense ... level when 3147 is Sean Fitzgerald Kincaid, appeals applicable.” district United States v. court’s of a Cir.1992).1 three-level en- F.2d provides: 1. Section 2J1.7 "If an enhancement while on release as this section if were a applies, under 18 U.S.C. add 3 levels specific offense characteristic contained in to the offense level for offense construc- words, room for there is no objected sentencing, At Benson, Applying at 788. F.3d enhancement, amount- tion.” arguing and violated the Sixth Circuit principle, to a double if unambiguous also asserted that He to be lenity. rule of *3 penalties enhanced committed intended of offenses Congress persons convicted 3146, those Title under 207 of chapter offenses under release while on under included have been would penalties Code. States 18 the United of statutory provision. that under jury convicted that the district Circuit the Sixth Fitzgerald’s court overruled The district the enhancement. properly court to be clear finding 3147 objection, not- court district also The unambiguous. that dissent, argued Judge Nelson In 3146 §§ enacted that because under a sentence both imposition of time, the same approximately 3147 at under 3147 and an enhancement 3146 the combined of aware been it should have and vio- to a double amounted Accordingly, two statutes. of impact of Jeopardy the Double Clause lated court sentenced the district argued Judge Nelson Fifth Amendment. con- to be served imprisonment, 27 months had not indicated because for the unre- his sentence secutively with punishments be intent judg- entered charges, and lated federal failing ap- of for the offense imposed timely a notice filed ment. statute, § specific the more pear, appeal. § 3147. Ben- over precedence take should (Nelson, J., dis- son, F.3d at 789-90 134 II senting). to en The majority’s reasoning with the agree We failing.to crime of for hance sentence statutory construction “In in Benson. first question is appear under the lan- case, must be beginning point only cir in this circuit.2 impression statute, and when of the guage is the this issue addressed cuit that has issue[,] judicial an clarity to speaks with Benson, States United Sixth Circuit in all meaning, into the statute’s inquiry (6th Cir.1998), a on case 134 F.3d circumstance, extraordinary the most but Benson, rely. parties v. Nicklos Cowart Estate is finished.” argument rejected the Circuit Sixth Co., Drilling statutory rules of and the lenity the rule of Section un an enhancement foreclose construction exception, to applies, without plainly for the offense der on release under while offenses committed al noted that Circuit appear. The Sixth fail- Fitzgerald’s 207 of Title 18. chapter con generally though criminal statutes violates is appear, which ure to defendant, courts of the strued favor on re- while clearly offense char lengths to go to extreme “should not such un- 207. Given chapter lease ambiguous as criminal statutes acterize for there no need language, is ambiguous relatively well- read they when can be Chap- lenity. rule of apply the in us to ambiguity no is there defined. Where findings clear error.” and its factual commit- offense novo guideline the offense Quinn, States ted while release.” Cir.2004). interpreta- court's "We district review sentencing guidelines de applicable tion of the States, man v. United Fitzgerald’s ment of sentence and there is no Jeopardy Double problem, we affirm (“The ... lenity applicable rule is not the sentence. grievous
unless there is a ambiguity or AFFIRMED. uncertainty and structure Act, of the such that even after a court has KING, Judge, Circuit dissenting. every thing seized from which aid can be I write separately to express my dis- derived, it is still left with an ambiguous agreement the panel majority’s reso- statute.”) (citations and punctua- internal lution of appeal. The decision my tion colleagues is incorrect for two reasons. *4 Fitzgerald’s § argument 3147 First, panel the majority reaches a result to amounts a double in viola contrary to that mandated the Supreme tion of Jeopardy the Double Clause also Court’s decision Simpson v. United fails. Section as promulgated by States, 435 2J1.7, § a creates sentence enhancement. (1978). 70 Second, it has erred conclud- generally See Cooper, United States v. 827 ing that the provided enhancement for in Cir.1987) F.2d (noting that § 3147 unambiguously applies where the § 3147 requires “an enhanced sentence” underlying offense is a § violation of 3146. release). for crimes committed on while Section is indeed ambiguous in this Supreme The Court has “[h]istorically ... circumstance and the lenity rule of thus jeopardy protections double inappli obliges us to resolve appeal Fitzger- cable to proceedings” and has ald’s favor. refused to construe sentence enhance punishments. ments as additional Monge I. California, 721, 728, v. 27, 2004, May (1998). Fitzgerald On was Therefore, indict- ed for “knowingly fail[ing] appear
the to district court’s for of Fitz enhancement gerald’s sentencing,” in sentence does not contravention of violate the Dou 18 U.S.C. Jeopardy § ble Clause.3 3146. pleaded guilty He to that offense 20, 2004, July on and his sentencing hear-
Ill ing was September conducted on 2004. plain the § The Sentencing prescribed Guidelines provides for the district court’s enhance- base level of 6 Fitzgerald’s offense for § 3. (internal Since 3147 is considered an Simpson) punctuation enhancement punishment, and not an additional the dis- Fitzgerald Simpson, Unlike pun- does not face sent's reliance on States is ishments and enhancements under misplaced. criminal He statutes. has been convicted of pre-Guidelines Simpson, addressing case appear the crime failure to and faces a multiple punishments and for enhancements single promul- enhancement under 3147 as firearm, robbery the single crime of with a the gated by Although U.S.S.G. 2J1.7. en- the Supreme Court avoided the constitutional hancement is based on the conduct the question Jeopardy by determining of Double offense, underlying double-counting “is 924(c) legislative history us "left generally authorized unless the Guidelines ex- guess with little more than a as to how Con- pressly prohibit Reevey, it.” United States v. gress to mesh that meant (4th Cir.2004). As we have provisions enhancement scattered out, pointed plain, unambiguous language throughout the federal criminal code.” Unit- §of permit Guidelines en- Gonzales, States hancement. (1997) L.Ed.2d (explaining (1) all offenses applies to gism: U.S.S.G. conviction. § 3146 chapter under on release while sentencing court committed 2J1.6(a)(2) The offense, which 207; pursu- 3146 creates enhancement three-level imposed un- for release 2J1.7, while on provides to U.S.S.G. ant (3) therefore, 3147; applies § 3147 required is an enhancement der such if turn, 3147, in words, panel Section In other Id. 18 U.S.C. where that, for an enhancement a viola- because provides concludes majority re- on crime while commits lan- literal § 3146 falls within tion of com- offense lease. intended §of guage course, was release, of while when, mitted that occur multiple punishments Thus, sentencing. for appear failing here, statutory provisions convicted Fitzgerald was after very same conduct. after his sentencing, appear majority’s reason- panel in the The flaw accordingly, fixed level base offense view, from its failure my stems ing, in very for the was enhanced his sentence rules that interpretive recognize for sen- failure act—his same situation, where in this tencing. *5 a defen- results in statutory provisions two simply this scenario in end result The same twice for the punished being dant of the Judge As Nelson no sense. makes situation, a In such a conduct. addressing observed aptly Circuit Sixth multiple impose to entitled court is not pun- issue, gets defendant “the very solely upon a on a defendant punishments then he appear and to for failure ished stat- terms of the literal both finding that appear.” to again for failure gets punished conduct; may only to his utes Benson, United States where multiple punishments impose such (in- J., Cir.1998) (Nelson, dissenting) its clearly stated intention has Congress omitted). Under marks quotation ternal at 15- Simpson, that effect. See precedent, Court Supreme controlling 98 S.Ct. authorized are not punishments robbed a had In the defendant Simpson, state- congressional a clear by absent law the bank, firearm to intimidate using a intended. they ment that 8-9, at employees. Id. S.Ct. bank’s 15-16, S.Ct. 909. at Simpson, 435 U.S. the robbery under which The bank the essen- include not 3147 does con- prosecuted was (Simpson) intent congressional of tial statement clear ap- that tained a enhancement multiple pun- of imposition an required for “robbery [was] Fitz- the plied where conjunction with ishments or weapon dangerous a the of ‘by be vacated. use gerald’s sentence should ” 909 (quoting at Id. device.’ its conclu- majority reaches panel The statute, 2113(d)). second A U.S.C. imposition § 3147 authorizes sion that 924(c), for an enhance- provided U.S.C. Fitzgerald by multiple punishments “ firearm ‘uses person ment whenever “when meaning” rule: “plain applying may be any felony for he to commit issue, clarity to speaks a statute in a prosecuted court meaning, the statute’s judicial inquiry into ” States,’ that the enhanced specified extraordinary circum- in all but most “ ‘in addition to be penalty was (internal stance, Ante at 486 is finished.” for the commission provided punishment alteration marks and quotation ” at felony.’ Id. [underlying] analysis, this majority’s panel Under 924(c)). question The (quoting following syllo- S.Ct. appeal is resolved with for the Court was whether the enhance- reversed the Sixth Circuit’s ruling to the 2113(d) 924(c) could ments under contrary. applied Simpson, given be later, years Two in Busic v. United they prescribed punishment each for the States, case, conduct. As in this the literal same (1980), L.Ed.2d 381 the Court re-affirmed 924(c) Simpson’s language holding its statutes should 924(c) provided conduct: for an en- be construed to multiple punish- authorize hanced when the defendant ments for the same only conduct where had used firearm the commission of clearly has stated its intention to law, felony punishable under federal Busic, punishments. authorize such In robbery, felony Simpson bank here, prosecution sought to invoke the committed, punishable under federal “plain meaning” rule. Id. at law. rejected 1747. The Court the prosecu- 924(c), The literal howev however, position, tion’s observing that er, analysis. did not end the Court’s [pjlainly the text the statute fails to began observing Court assessment pertinent address the issue to decision of imposition multiple punish these cases—whether intend- potentially ments for the same conduct ... provide penalties enhanced prospect jeopardy.” of double “raise[s] only for containing crimes not their own
Simpson, 435
at
490
pre-
applied the enhancement
required by
trict court
statement
the clear
provide
98-473,
penal-
Title
in addition to the
See Pub.
by
L. No.
3147
Simpson.
scribed
1837,
3146,
II,
203(a),
1982-83
under
it erred
ty required
98 Stat.
that the Court
Although plainly
Fitzgerald.1
aware
Simpson
multiple punish-
ruled
II.
imposed for the same
could not be
ments
congressional state-
absent a clear
conduct
aside,
Setting Simpson
majori-
panel
effect, Congress
failed to
to that
ment
that the sentenc-
ty
concluding
also errs in
§in
any
statement
include
unambiguously
§in
3147
ing enhancement
underlying offense is a
applies where
Indeed,
any indica-
is bereft of
3147
below, in
explained
violation of
3146. As
intended it to
of whether
tion
statutory
in its broader
viewing
cumulatively
penalty provi-
with the
apply
do,
context,
it is far
obliged
as we are
result, 3146. As
sions
intended to
from clear that
3147 was
conclude that
mandates
we
crime was a
underlying
where the
punishments to
not intend for
did
sentencing.
Given
failure to
Fitzgerald. Because the dis-
be
defines the bound-
majority
is the same distinction that
panel
maintains
1. The
because,
inapplicable
right
juty
Simpson principles are
to a
aries of the Sixth Amendment
Monge
738,
(Scalia,
Supreme
Court's decision in
trial. See id. at
California,
728-29,
U.S.
J.,
dissenting);
id. at
"
(1998),
3147 is consid-
(relying
v. United
on Almendarez-Torres
an enhancement and not an additional
ered
States,
118 S.Ct
purposes
jeopar-
punishment” for
of double
(1998),
concluding that en-
L.Ed.2d 350
analysis.
dy
Ante at 487 & n. 3. The distinc-
element).
hancement is not
Monge between enhancements
tion drawn in
Monge was decided in
the dis-
When
however,
punishments,
has
and additional
between a
factor and an
tinction
Apprendi line of re-
been undermined
largely
offense element rested
on the formal
Supreme
See United
cent
Court decisions.
provided by
legislature. See
definition
Booker,
S.Ct.
States v.
Pennsylvania, 477 U.S.
McMillan v.
(2005);
Washing-
Blakely
The first in the of a course, is, certainty statute to examine the lan- as to whether intended guage of the statute itself. Where the result reached panel majority. the language plain unambiguous, is Thus, the although ambiguity the is hidden function of sole the court is to the § when the language 3147 is viewed in according to its terms. In re isolation, ambiguity readily is apparent (4th Corp., Sunterra 361 F.3d when properly 3147 is viewed Cir.2004). Although panel majority broader statutory context. correctly plain meaning articulates course, Such an ambiguity, of “must be rule, in applying it errs that rule. As resolved in lenity, favor of granting the above, explained majority has focused benefit the doubt.” solely language on the 3147: since Davis, (4th Thomas v. 192 F.3d §in applies the enhancement to all Cir.1999); Pasquantino see also v. United offenses committed while on release under States, chapter 3146 creates an of- (observing that fense which committed while “when confronted with two rational read- 207, § chapter release under 3147 nec- statute, ings of a criminal one harsher than Yet, essarily applies §to we have other, we are to choose the harsher that, consistently recognized in applying only spoken when has in clear rule, evaluate, plain meaning we must (internal language”) quotation definite statute, language addition to the of the omitted). Here, marks lenity the rule of specific “the context in which the lan- precludes applica- court’s used, guage is and the broader context of tion of Fitzgerald’s underly- 3147 where Tenet, the statute as a whole.” Chris ing offense was a violation of 3146. The Cir.2000) (internal panel majority district court and the have Thus, quotation marks in deter- choosing thus erred in mining unambiguously whether “harsher” read- op- ing, erates to enhance a sentence and in applying where the 3147 in this case. offense of conviction is we must only consider not III. relationship
but also its *8 foregoing, Pursuant I would va- provision directly preceding it in Ti- cate Fitzgerald’s sentence and remand for tle legislative 18 of the Code and resentencing. enactment 3146 and together respectfully were made law.2 I dissent. applied together,
When 3146 and operate redundantly: pun-
ishes the defendant for failure punishes then the defendant above, II, 203(a), explained
2. As 3146 and Title 98 Stat. 1982-83 part legislative were enacted of the same act on October 1984. See Pub. L. No. 98-