United States v. Lanier

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0035P (6th Cir.)
File Name: 00a0035p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

UNITED STATES OF AMERICA,

Plaintiff-Appellee,


No. 98-5447
v.

>
DAVID W. LANIER, 
Defendant-Appellant. 
1
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 97-20223—Jerome Turner, District Judge.
Argued: September 15, 1999
Decided and Filed: January 24, 2000
Before: SUHRHEINRICH, COLE, and GIBSON,* Circuit
Judges.
*
The Honorable John R. Gibson, Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
1
2 United States v. Lanier No. 98-5447 No. 98-5447 United States v. Lanier 11
_________________ part of the en banc court considering the motion.” United
States v. Lanier, 120 F.3d 640, 644 (6th Cir. 1997) (en banc)
COUNSEL (Boggs, J., concurring). Accordingly, this matter has been
settled and we thus adhere to our original ruling: the en banc
ARGUED: Stephen B. Shankman, OFFICE OF THE panel that vacated Lanier’s release order had jurisdiction to do
FEDERAL PUBLIC DEFENDER FOR THE WESTERN so.
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Stephen C. Parker, OFFICE OF THE U.S. IV.
ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Stephen B. Shankman, OFFICE OF THE For the foregoing reasons, we AFFIRM Lanier’s
FEDERAL PUBLIC DEFENDER FOR THE WESTERN conviction and sentence.
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Stephen C. Parker, OFFICE OF THE U.S.
ATTORNEY, Memphis, Tennessee, for Appellee. David W.
Lanier, Lexington, Kentucky, pro se.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. In December 1997,
David W. Lanier entered a plea of guilty to one count of
failure to appear, in violation of 18 U.S.C. § 3146. The
district court sentenced him to twelve months’ imprisonment,
applying a three-level enhancement to his sentence pursuant
to U.S.S.G. § 2J1.7, which applies to a defendant who
commits an offense while on release. Lanier appeals the
application of the enhancement, arguing that it constitutes
impermissible double counting. In pro se briefing, Lanier
also attacks his conviction, arguing that the en banc court
lacked jurisdiction to vacate this court’s earlier release order
because two senior judges impermissibly served on the en
banc court. Lanier thus contends that because we lacked
authority to vacate his release order, he could not have been
guilty of the offense of failure to appear. For the reasons that
follow, we AFFIRM Lanier’s conviction and sentence.
10 United States v. Lanier No. 98-5447 No. 98-5447 United States v. Lanier 3
Here, the indictment charged that Lanier: I.
having been directed by the United States Court of Lanier was formerly the sole state Chancery Court judge for
Appeals, Sixth Circuit to surrender to the United States two counties in rural Tennessee. Between 1989 and 1991,
Marshal at Memphis, Tennessee in the Western District while still a judge, Lanier sexually assaulted several women
of Tennessee, did knowingly and wilfully fail to in his judicial chambers. After the women reported the
surrender for service of sentence as ordered by the Court, assaults, Lanier was charged with violating 18 U.S.C. § 242,
in violation5 of Title 18, United States Code, Section which prohibits a person acting under color of state law from
1346(a)(2). violating the rights and privileges secured by the Constitution
and laws of the United States, including the right to be free
(footnote added). Considering the above language, Lanier has from willful sexual assault. Following a jury trial, Lanier was
no argument that the indictment failed to set forth the convicted and sentenced to a term of imprisonment of 300
elements of the charged offense or that he lacked notice of the months.
charge he faced. Lanier was fully cognizant that he was
charged with the failure to appear as directed and entered a On appeal, a panel of this court affirmed his conviction and
knowing and voluntary plea of guilty to that offense. In fact, sentence, see United States v. Lanier, 33 F.3d 639 (6th Cir.
it is undisputed that Lanier deliberately defied a court order. 1994), but the full court vacated the decision and granted
Accordingly, to any extent that Lanier is arguing that his rehearing en banc, see United States v. Lanier, 43 F.3d 1033
indictment was insufficient, that argument fails. Because (6th Cir. 1995). During the en banc proceedings, we released
Lanier’s argument regarding the composition of the en banc Lanier on his own recognizance and set aside his conviction
court that vacated his release order was not a jurisdictional for “lack of any notice to the public that this ambiguous
challenge to his voluntary guilty plea in the district court for criminal statute [§ 242] includes simple or sexual assault
failure to appear, he has waived that argument and it is not crimes within its coverage.” United States v. Lanier, 73 F.3d
viable on appeal. 1380, 1384 (6th Cir. 1996) (en banc). The government
successfully petitioned the United States Supreme Court for
Even if we were to reach the merits of Lanier’s argument, a writ of certiorari. See United States v. Lanier, 518 U.S.
the two senior judges who served, Judge Keith and Judge 1004 (1996).
Jones, did so appropriately. Judge Keith was a member of the
original panel that heard Lanier’s appeal and, therefore, as The Supreme Court vacated this court’s en banc judgment
counsel for Lanier conceded at oral argument, properly served and remanded the case to us. See United States v. Lanier, 520
on the en banc court. See 28 U.S.C. § 46(c)(1). As for Judge U.S. 259 (1997). The Court held that we committed error by
Jones, “[a] majority of the judges in regular active service [in holding that due process under § 242 requires more than the
this circuit] voted that the correct interpretation of the various “clearly established” qualified immunity test pursuant to 42
applicable statutes, rules of appellate procedure, and local U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403
rules of our circuit indicated that [Judge Jones] should be a U.S. 388 (1971). See Lanier, 520 U.S. at 269-70. On
remand, before reconsidering the merits of Lanier’s original
appeal, this court, sitting en banc, entered an order requiring
5
The indictment contained a typographical error in that it referred to
Lanier to surrender to the United States Marshal for the
the statute as 18 U.S.C. § 1346 rather than 18 U.S.C. § 3146. This type Western District of Tennessee by August 22, 1997. See
of typographical error does not render the indictment insufficient. See
United States v. Lake, 985 F.2d 265, 271 (6th Cir. 1993).
4 United States v. Lanier No. 98-5447 No. 98-5447 United States v. Lanier 9
United States v. Lanier, 120 F.3d 640 (6th Cir. 1997) (en fact guilty of the offense with which he is charged, he may not
banc). thereafter raise independent claims relating to the deprivation
of constitutional rights that occurred prior to the entry of the
At that time, Lanier was living in San Diego. Lanier’s guilty plea.” 411 U.S. at 267. Accordingly, a defendant
daughter received the order and faxed a copy to Lanier’s waives “all subsequent non-jurisdictional appeals to his
nephew, Tommy Mills, who lived near San Diego in El conviction by pleading guilty.” United States v. Pickett, 941
Centro, California. Lanier’s daughter also personally F.2d 411, 416 (1991) (citation omitted). Thus, Lanier has
informed Lanier that he had been ordered to surrender. Mills waived his challenge to his conviction for failure to appear
gave the copy of the order to Lanier; however, rather than unless he can show that his challenge is jurisdictional in
preparing to surrender, Lanier fled to Mexico. Mills asked nature.
one of his employees to bring Lanier back to the San Diego
area, but the employee and Lanier instead went to Tijuana, Lanier does not contest the jurisdiction of the district court
Mexico, where they visited topless clubs for several hours. in which he was convicted of failure to appear; rather, Lanier
They then traveled to Ensenada, Mexico, where Lanier alleges that this court lacked jurisdiction to vacate his release
remained, thereby failing to surrender by August 22, 1997, as order because the composition of the en banc court was
ordered. After Lanier’s failure to appear, this court, sitting en improper. In effect, Lanier is arguing that our alleged lack of
banc, dismissed Lanier’s pending appeal of his underlying jurisdiction to vacate his release order caused a corresponding
conviction. See United States v. Lanier, 123 F.3d 945 (6th lack of jurisdiction in the district court. This argument fails.
Cir. 1997) (en banc).
More specifically, Lanier appears to contend that his
In late August 1997, United States deputy marshals indictment for failure to appear was insufficient, based upon
discovered Lanier’s apartment in San Diego and determined our alleged lack of jurisdiction to vacate his release order. An
that he was using an alias: Aubrey Lane Thompson. The argument that an indictment was insufficient would be viable
investigation eventually led the deputy marshals to Ideal on appeal, because the sufficiency of an indictment is a
Studios, located in Chicago, Illinois. Ideal Studios advertised jurisdictional challenge. See United States v. Vanover, 888
the sale of fake identity documents and kits in several national F.2d 1117, 1120 (6th Cir. 1989) (stating that defendant does
publications, such as the National Enquirer. The owner of the not waive right to challenge sufficiency of the indictment by
company remembered an order from Aubrey Lane Thompson, pleading guilty). Here, however, Lanier cannot show that his
which was shipped to Ensenada. The deputy marshals indictment was insufficient.
notified Mexican authorities, who were present on October
13, 1997 when Lanier picked up the Ideal Studios package at Fed. R. Crim. P. 7(c)(1) provides, in part, that “[t]he
the Ensenada post office. The Mexican authorities then indictment . . . shall be a plain, concise and definite written
arrested and deported Lanier. statement of the essential facts constituting the offense
charged.” In addition, the Supreme Court held that “an
Upon his return to the United States, Lanier gave a indictment is sufficient if it, first, contains the elements of the
statement to Deputy Marshal Tommy Thompson admitting offense charged and fairly informs a defendant of the charge
that he intentionally failed to appear although he knew he had against which he must defend, and, second, enables him to
been ordered to surrender. He also admitted that he plead an acquittal or conviction in bar of future prosecutions
established the alias of Aubrey Lane Thompson and resided for the same offense.” Hamling v. United States, 418 U.S. 87,
in Mexico for the purpose of eluding capture. 117 (1974).
8 United States v. Lanier No. 98-5447 No. 98-5447 United States v. Lanier 5
III. A federal grand jury handed down a one-count indictment
charging Lanier1 with failure to appear, in violation of 18
Lanier further argues, pro se, that the en banc court lacked U.S.C. § 3146. On December 30, 1997, Lanier entered a
jurisdiction to vacate this court’s earlier release order because plea of guilty to the offense charged in the indictment. A plea
two senior judges – Judge Keith and Judge Jones – colloquy was held and the district court accepted Lanier’s
impermissibly served on the en banc court, in violation of 28 plea. On March 6, 1998, the district court sentenced Lanier,
U.S.C. § 46(c).4 Lanier contends that because his release finding that Lanier’s offenses warranted2 a sentencing
order was erroneously vacated, he could not have been enhancement pursuant to 18 U.S.C. § 3147 and U.S.S.G.
convicted for failure to appear and, thus, his conviction for
that offense is a nullity. Lanier further contends that this
court should reinstate the direct appeal of his conviction for 1
violating 18 U.S.C. § 242. We disagree. Title 18 U.S.C. § 3146. Penalty for failure to appear
Lanier’s argument challenging the composition of our en (a) Offense. – Whoever, having been released under this
chapter knowingly –
banc court is essentially a challenge to his conviction for (1) fails to appear before a court as required by the
failure to appear, a conviction that occurred as a result of a conditions of release; or
guilty plea. Thus, we must first determine whether Lanier has (2) fails to surrender for service of sentence pursuant to a
waived his argument by his plea of guilty. See Tollett v. court order; shall be punished as provided in subsection
Henderson, 411 U.S. 258, 267 (1973). “A voluntary and (b) of this section.
intelligent guilty plea usually forecloses later attempts to (b) Punishment. – (1) The punishment for an offense under this
challenge the resulting judgment; the plea serves not only to section is –
admit the conduct charged in the indictment[,] but also to (A) if the person was released in connection with a charge
concede guilt of the substantive crime.” In re Hanserd, 123 of, or while awaiting sentence, surrender for service of
F.3d 922, 926 (6th Cir. 1997) (citing United States v. Broce, sentence, or appeal or certiorari after conviction for –
488 U.S. 563, 570 (1989)). Or, as stated in Tollett, “a guilty (i) an offense punishable by death, life imprisonment,
or imprisonment for a term of 15 years or more, a
plea represents a break in the chain of events which has fine under this title or imprisonment for not more
preceded it in the criminal process. When a criminal than ten years, or both;
defendant has solemnly admitted in open court that he is in (ii) an offense punishable by imprisonment for a term
of five years or more, a fine under this title or
imprisonment for not more than five years, or
both;
4 (iii) any other felony, a fine under this title or
Title 28 U.S.C. 46(c) provides in part that:
imprisonment for not more than two years, or both;
A court in banc shall consist of all circuit judges of the circuit ...
who are in regular active service . . . except that any senior
circuit judge of the circuit shall be eligible (1) to participate, at (2) A term of imprisonment imposed under this section
his election and upon designation and assignment pursuant to shall be consecutive to the sentence of imprisonment
section 294(c) of this title and the rules of the circuit, as a for any other offense.
member of an in banc court reviewing a decision of a panel of 2
which such judge was a member, or (2) to continue to participate Title 18 U.S.C. § 3147. Penalty for an offense committed while on
in the decision of a case or controversy that was heard or reheard release
by the court in banc at a time when such judge was in regular
active service. A person convicted of an offense committed while released
6 United States v. Lanier No. 98-5447 No. 98-5447 United States v. Lanier 7
2J1.7,3 which provide for a three-level increase to a In raising this argument, Lanier acknowledges that in
defendant’s offense level for committing an offense while on Benson, this court faced the precise issue he now raises. See
release pending trial, sentencing, or appeal. The district court 134 F.3d at 787-88. Defendant Benson was indicted and
imposed the minimum guideline sentence of twelve months, arrested on charges of mail theft and released on a $20,000
designating nine months as punishment for violating § 3146 unsecured bond. See id. at 787. After he failed to appear for
and three months attributable to § 3147, to run consecutive to a court appearance, he was indicted for failure to appear in
Lanier’s existing sentence for his violation of 18 U.S.C. violation of 18 U.S.C. § 3146. See id. At sentencing, the
§ 242. Lanier filed a timely notice of appeal. district court applied 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7
to enhance Benson’s base offense level. See id. Benson
II. appealed to this court.
Lanier first argues that the district court erred by applying We affirmed Benson’s sentence, applying the rules of
18 U.S.C. § 3147 and U.S.S.G. § 2J1.7 to enhance his base statutory construction to conclude that 18 U.S.C. § 3147 is
offense level. Lanier contends that the three-level not ambiguous and applies to “[a] person convicted of an
enhancement set forth in these sections – applicable when an offense committed while released under this chapter. . . . ” Id.
offense is committed while a defendant is on release – should at 788. Because Benson was convicted of an offense – failure
not apply when the offense of conviction is failure to appear, to appear – the § 3147 enhancement applied. See id. We
an offense that is necessarily committed while on release. stated that “[s]ection 3147 clearly and unambiguously
Lanier asserts that the enhancement constitutes impermissible mandates that the courts impose additional consecutive
double counting in these circumstances. We review de novo sentences on persons convicted of crimes they commit while
a sentencing court’s interpretation of the guidelines. See released. . . . If Congress finds this result unpalatable, it is
United States v. Benson, 134 F.3d 787, 788 (6th Cir.), cert. within its power to rewrite the existing statute.” Id. at 788-89
denied, 119 S. Ct. 343 (1998). (quotation and citation omitted). Dissenting from the majority
opinion, however, Judge Nelson opined that the application
of the sentencing enhancement for the offense of failure to
under this chapter shall be sentenced, in addition to the appear constituted multiple punishments for the same crime.
sentence prescribed for the offense to – See id. at 789 (Nelson, J., dissenting). Judge Nelson noted
that he was “aware of nothing in the legislative history
(1) a term of imprisonment of not more than ten years if suggesting that Congress intended to impose multiple
the offense is a felony; or
(2) a term of imprisonment of not more than one year if the punishments in a case such as this, and I do not read the
offense is a misdemeanor. statutory language as clearly manifesting such an intent.” Id.
A term of imprisonment imposed under this section shall be Even if we were persuaded by Lanier’s argument and Judge
consecutive to any other sentence of imprisonment. Nelson’s rationale, we are bound by the Benson decision. It
3
is firmly established that one panel of this court cannot
U.S.S.G. § 2J1.7. Commission of Offense While on Release overturn a decision of another panel; only the court sitting en
banc can overturn such a decision. See United States v.
If an enhancement under 18 U.S.C. § 3147 applies, add 3
levels to the offense level for the offense committed while Smith, 73 F.3d 1414, 1418 (6th Cir. 1996). Accordingly,
on release as if this section were a specific offense following Benson, we reject Lanier’s argument and affirm the
characteristic contained in the offense guideline for the district court’s enhancement of his sentence.
offense committed while on release.