United States v. Michael Benson , 134 F.3d 787 ( 1998 )

SILER, J., delivered the opinion of the court, in which BOGGS, J., joined. DAVID A. NELSON, J. (pp.-), delivered a separate dissenting opinion.

SILER, Circuit Judge.

Defendant Michael Benson has appealed the district court’s application of 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7 to his sentence for failing to appear pursuant to 18 U.S.C. § 3146, which resulted in a three-level increase to his offense level. For the reasons stated herein, we AFFIRM.

I

Benson was indicted on charges of mail theft in violation of 18 U.S.C. § 1708. He was arrested in January 1994 and released on a $20,000 unsecured bond. After he failed to appear on May 4, 1994, he was subsequently indicted for failure to appear pursuant to 18 U.S.C. § 3146.

A jury trial was held on the mail theft and failure to appear charges in 1995. The district court dismissed the theft charges under Fed.R.Crim,P. 29, The jury returned a guilty verdict on the charge of failing to appear.

At sentencing, the district court determined that Benson’s base offense level was twelve. After application of 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7, which provide for a three-level increase to a defendant’s offense level for committing an offense while released pending trial, Benson’s offense level rose to fifteen. Accordingly, given Benson’s criminal history of III, the guideline imprisonment range was twenty-four to thirty months. Benson objected to the three-level increase, but the district court overruled the objection and sentenced Benson to twenty-four months’ imprisonment. If the three-level enhancement had not been added to the offense level, the guideline range would have been fifteen to twenty-one months’ imprisonment.

II

Our review of sentences imposed pursuant to the guidelines is generally governed by 18 U.S.C. § 3742. See United States v. Morrison, 983 F.2d 730, 731 (6th Cir.1993). Under § 3742, we review de novo a sentencing court’s interpretation of the guidelines. United States v. Watkins, 994 F.2d 1192, 1195 (6th Cir.1993).

Upon defendant’s conviction for failure to appear under 18 U.S.C. § 3146, the district court then turned to 18 U.S.C. § 3147, which provides:

A person convicted of an offense committed while released under this chapter shall be sentenced, in addition to the sentence prescribed for the offense to-

(1) a term of imprisonment of not more than ten years if the offense is a felony; or

(2) a term of imprisonment of not more than one year if the offense is a misdemeanor.

A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.

The court then applied U.S.S.G. § 2J1.7, which was promulgated to effectuate the mandate of 18 U.S.C. § 3147. This section provides: “If an enhancement under 18 U.S.C. § 3147 applies, add 3 levels to the offense level for the offense committed while on release as if this section were a specific offense characteristic contained in the offense guideline for the offense committed while on release.” Combining these two provisions, the court determined that a three-level enhancement to Benson’s offense level was appropriate.

Benson argues that 18 U.S.C. § 3147 should not apply in this ease. In essence, he claims that failing to appear is not the type of crime envisioned by Congress when it drafted this section. For support of this position he cites United States v. Lofton, 716 F.Supp. 483 (W.D.Wash.1989), which is factually similar to the present case. In Lofton, the district court refused to apply 18 U.S.C. § 3147 to a violation of 18 U.S.C. § 3146. The court noted three reasons: (1) Congress could not have intended for both 18 U.S.C. § 3146 and 18 U.S.C. § 3147 to apply; (2) 18 U.S.C. § 3146 is the more “specific” statute and the relationship between the two sections is ambiguous; and (3) the rule of lenity foreclosed the imposition of an enhancement. Lofton, 716 F.Supp. at 485.

We have not previously addressed this precise issue; however, we shall utilize basic rules of statutory construction in determining the applicability of this provision. “While, as a general proposition, criminal statutes are to be strictly construed in favor of the defendant, we decline to apply the principle where ‘the (legislative) history is unambiguous and the text consistent with it.’ ” United States v. Ilacqua, 562 F.2d 399, 401 (6th Cir.1977)(quoting Scarborough v. United States, 431 U.S. 563, 577, 97 S.Ct. 1963, 1970, 52 L.Ed.2d 582 (1977)). Additionally, we should not go to extreme lengths to characterize criminal statutes as ambiguous when they can be read as relatively well-defined. Where there is no ambiguity in the words, there is no room for construction. See United States v. Wiltberger, 5 Wheat. 76, 18 U.S. 76, 95, 5 L.Ed. 37 (1820).

Section 3147 is not ambiguous, as it clearly states that it applies to “a person convicted of an offense committed while under release under this chapter [207].... ” Benson was convicted of a violation of 18 U.S.C. § 3146, an offense under chapter 207 of Title 18. Thus, the district court did not err in applying 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7 to Benson. See also United States v. Lewis, 991 F.2d 322, 324 (6th Cir.1993)(Rejecting an argument that the statute contained a notice requirement, we said: “Section 3147 clearly and unambiguously mandates that the courts impose additional consecutive sentences on persons convicted of crimes they commit while released on bond.”). If Congress finds this result unpalatable, it is within its power to rewrite the existing statute.

AFFIRMED.