United States v. Destry Marcotte

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15-1266 and 15-1271
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DESTRY J. MARCOTTE,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Southern District of Illinois.
Nos. 13 CR 30053 and 14 CR 30107 — Michael J. Reagan, Judge.
____________________
ARGUED FEBRUARY 12, 2016 — DECIDED JUNE 13, 2016
____________________
Before WOOD, Chief Judge, ROVNER, Circuit Judge, and
BLAKEY, District Judge. ∗
BLAKEY, District Judge. Five of our sister courts have held
that 18 U.S.C. §3147, through §3C1.3 of the Sentencing
Guidelines, can enhance a sentence for the crime of failing to
∗ Of the Northern District of Illinois, sitting by designation.
2 Nos. 15-1266 and 15-1271
appear under 18 U.S.C. §3146. United States v. Duong, 665
F.3d 364 (1st Cir. 2012); United States v. Fitzgerald, 435 F.3d
484 (4th Cir. 2006); United States v. Dison, 573 F.3d 204 (5th
Cir. 2009); United States v. Benson, 134 F.3d 787 (6th Cir.
1998); and United States v. Rosas, 615 F.3d 1058 (9th Cir.
2010). Two others have reached the same conclusion, albeit
in unpublished decisions. United States v. Gause, 536 Fed.
Appx. 234 (3d Cir. 2013) (unpublished); United States v.
Clemendor, 237 Fed. Appx. 473 (11th Cir. 2007) (un-
published). None has reached a different conclusion. Against
this consensus, Appellant Destry J. Marcotte seeks to chart
new territory in the Seventh Circuit on an issue of first im-
pression here. We decline that invitation and AFFIRM the
district court’s sentence.
I
On March 19, 2013, a Federal Grand Jury returned a five-
count Indictment charging Marcotte with: (1) four counts of
making a false claim for federal tax refunds, in violation of
18 U.S.C. §287 (Counts 1 to 4); and (2) one count of falsely
pretending to be an officer of the United States to demand a
thing of value, in violation of 18 U.S.C. § 912 (Count 5). On
August 26, 2013, the district court, acting on the Govern-
ment’s motion, dismissed Count 5 of the Indictment.
The tax fraud case went to trial and, on October 8, 2013,
the jury returned a guilty verdict against Marcotte on Counts
1 to 4. The district court set the sentencing hearing for Janu-
ary 17, 2014, and later reset the hearing for May 1, 2014. In
the interim, on November 7, 2014, the district court allowed
Marcotte to be released on home confinement with electronic
monitoring pending sentencing.
Nos. 15-1266 and 15-1271 3
When Marcotte failed to show for his May 1, 2014 sen-
tencing hearing, the district court issued a warrant for his
arrest. On May 21, 2014, Marcotte was indicted for failure to
appear for sentencing, in violation of 18 U.S.C. §3146(a)(1).
Section 3146(a)(1) punishes the failure to appear before a
court as required by a condition of release.
The U.S. Marshals Service arrested Marcotte on Septem-
ber 22, 2014. On October 30, 2014, Marcotte pled guilty to the
failure to appear charge. The district court scheduled the
sentencing hearing for February 4, 2015, on both the tax
fraud and failure to appear cases.
On November 17, 2014, the probation office submitted an
initial presentence report (“PSR”) addressing Marcotte’s two
criminal cases. The initial PSR, in relevant part, recommend-
ed a 2-level enhancement under §3C1.1 of the Sentencing
Guidelines, and a 3-level enhancement under §3C1.3 of the
Sentencing Guidelines. On December 31, 2014, Marcotte filed
his objections to the initial PSR, contesting the 3-level en-
hancement under §3C1.3.
Section 3C1.1 requires a 2-level enhancement when a de-
fendant “willfully obstructed or impeded … [the] sentencing
of the instant offense of conviction.” Application Note 4 to
§3C1.1 of the Sentencing Guidelines provides examples of
covered conduct, including “willfully failing to appear, as
ordered, for a judicial proceeding.” U.S.S.G. §3C1.1 cmt.
4(E).
Additionally, Section 3C1.3 requires a 3-level enhance-
ment for violations of 18 U.S.C. §3147. Section 3C1.3 states in
full:
4 Nos. 15-1266 and 15-1271
If a statutory sentencing enhancement under 18
U.S.C. § 3147 applies, increase the offense level by 3
levels.
U.S.S.G. §3C1.3. Title 18 U.S.C. §3147, in turn, provides that a
defendant convicted of an offense while released shall be
subject to an additional punishment of no more than 10
years. Section 3147 states in relevant part:
A person convicted of an offense committed while re-
leased under this chapter [Chapter 207] shall be sen-
tenced, 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[.]
On January 13, 2015, the Probation Office issued the final
PSR. The final PSR’s recommendations set forth a criminal
history category of I for Marcotte. Applying §§3D1.2(c) and
(d) of the Sentencing Guidelines, the final PSR grouped the
four counts from the tax fraud case with the single count
from the failure to appear case, and calculated a total offense
level of 27. The final PSR broke down the total offense level
as follows:
Category Description Level
Base Level Tax fraud in violation of 18 U.S.C. § 20
287. U.S.S.G. §§ 2T1.1 and 2T4.1.
Specific Offense Marcotte failed to report a source of +2
Characteristics income exceeding $10,000 from
criminal activity. U.S.S.G. §
2T1.1(b)(1).
Nos. 15-1266 and 15-1271 5
Obstructing or Marcotte willfully obstructed or +2
Impeding the impeded the administration of jus-
Administration tice by failing to appear for his May
of Justice 1, 2014 sentencing hearing. U.S.S.G.
§ 3C1.1.
Commission of Marcotte committed a new offense, +3
Offense While that is, failure to appear under 18
on Release U.S.C. § 3146(a)(1), while on release
for four counts of tax fraud. 18
U.S.C. § 3147; U.S.S.G. § 3C1.3.
On February 4, 2015, the district court held the consoli-
dated sentencing hearing. Following the final PSR’s recom-
mendation, the district court accepted the criminal history
category of I and the total offense level of 27, resulting in an
advisory guideline sentence range of 70 to 87 months. The
district court then imposed a 78-month sentence, which fell
within the advisory guideline range. The district court di-
vided the sentence into: (1) concurrent 50-month sentences
for each of Counts 1 through 4 of the tax fraud case; and (2) a
consecutive 28-month sentence for the failure to appear case.
The district court entered judgment on the failure to ap-
pear case on February 9, 2015, and on the tax fraud case the
next day. This timely appeal followed.
II
Marcotte raises a limited objection to his sentence, argu-
ing that the district court erred by imposing the 3-level en-
hancement under §3C1.3 of the Sentencing Guidelines. Had
the district court struck the enhancement, Marcotte’s total
offense level would have been 24, resulting in a lower advi-
sory guideline sentence range: 51 to 63 months. We review
6 Nos. 15-1266 and 15-1271
the district court’s legal interpretation and application of the
Sentencing Guidelines de novo. United States v. Jackson, 410
F.3d 939, 941 (7th Cir. 2005).
Marcotte first argues that 18 U.S.C. §3147 (and §3C1.3 of
the Sentencing Guidelines, in turn) does not apply to him.
When addressing questions of statutory interpretation, we
begin with the text of the statute. Precision Industries, Inc. v.
Qualitech Steel SBQ, LLC, 327 F.3d 537, 543-44 (7th Cir. 2003).
When a statute is unambiguous, our inquiry “starts and
stops” with the text. United States v. All Funds on Deposit with
R.J. O’Brien & Associates, 783 F.3d 607, 622 (7th Cir. 2005);
Precision Industries, 327 F.3d at 544.
Here, the statutory language is plain and unambiguous.
Section 3147 provides, without exception, that a defendant
such as Marcotte “convicted of an offense committed while
released under this chapter [Chapter 207] shall” be subject to
an additional punishment of no more than 10 years. Not ap-
pearing for sentencing in violation of 18 U.S.C. §3146, of
course, is an “offense” under Chapter 207 of Title 18, and it
is “committed while released.” We see nothing unreasonable
about this interpretation. Nor have any of our sister courts.
Duong, 665 F.3d at 366-67; Rosas, 615 F.3d at 1064-65; Dison,
573 F.3d at 207-08; Fitzgerald, 435 F.3d at 486-87; Benson, 134
F.3d at 788; see also Gause, 536 Fed. Appx. at 236-37; Clemen-
dor, 237 Fed. Appx. at 477-78. We, in fact, credited three of
these decisions in United States v. Rigsby, 501 Fed. Appx. 545,
550 (7th Cir. 2013) (unpublished).
The plain and unambiguous language of the statute pre-
vents us from proceeding to consider other canons of con-
struction. In re Baker, 430 F.3d 858, 860 (7th Cir. 2005). We
Nos. 15-1266 and 15-1271 7
need not consider the canon that a more specific statute re-
ceives precedence over a more general one. Likewise, we
need not consider the rule of lenity, which requires that an
ambiguous criminal statute be construed in favor of the de-
fendant because criminal statutes must provide fair warning
concerning conduct rendered illegal. United States v. Patel,
778 F.3d 607, 618 (7th Cir. 2015). When a statute remains
ambiguous even after considering its text, context, structure,
history and purpose, then—and only then—the rule of lenity
may apply. Barber v. Thomas, 560 U.S. 474, 488 (2010); Patel,
778 F.3d at 618. But that is not the case here. The rule of leni-
ty is designed to help resolve ambiguities, not create them.
In sum, there is no need to venture beyond the text of §3147
in this case.
Marcotte’s two remaining arguments also lack merit.
Marcotte argues that the district court engaged in impermis-
sible double counting by imposing two enhancements for
the same misconduct—his failure to appear.
The Sentencing Guidelines, however, expressly permit
cumulative guideline enhancements for the same miscon-
duct. Under Application Note 4(B) to §1B1.1 of the Sentenc-
ing Guidelines, enhancements under Section 3 (and else-
where) are applied “cumulatively” even when “triggered by
the same conduct.” Consider a defendant who shoots a po-
lice officer during the commission of a robbery. Such con-
duct, according to Application Note 4(B), may warrant both
an injury enhancement under §2B3.1(b)(3) and an official
victim adjustment under §3A1.2 of the Sentencing Guide-
lines. Thus, cumulative application of enhancements is the
“default rule … unless a specific guideline instructs other-
8 Nos. 15-1266 and 15-1271
wise.” United States v. Vizcarra, 668 F.3d 516, 520 (7th Cir.
2012).
Here, the Sentencing Guidelines do not prohibit cumula-
tive application of §3C1.1 and §3C1.3 (indeed, Marcotte can-
not identify any contrary guideline), so the district court did
not err in applying both. For the same reason, the Fifth and
Ninth Circuits also have rejected the same double counting
argument. Dison, 573 F.3d at 208; Rosas, 615 F.3d at 1065.
Marcotte, believing that he has been twice punished for
the same offense, last argues that imposing an enhancement
under §3147 and §3C1.3 of the Sentencing Guidelines vio-
lates the Double Jeopardy Clause of the Fifth Amendment.
But Marcotte mistakes the scope of the Clause in two ways.
First, the Supreme Court has historically found double
jeopardy protections inapplicable to sentencing proceedings,
refusing to construe sentence enhancements as additional
punishments. Monge v. California, 524 U.S. 721, 728 (1998); see
also Fitzgerald, 435 F.3d at 487 (analyzing Monge in the con-
text of §3C1.3 of the Sentencing Guidelines). Here, §3147, as
promulgated under §3C1.3 of the Sentencing Guidelines,
creates a sentence enhancement. Dison, 573 F.3d at 209; Fitz-
gerald, 435 F.3d at 487; see generally United States v. Sturman,
49 F.3d 1275, 1283 (7th Cir. 1995) (describing what is now
§3C1.3 as an “enhancement”). Section 3C1.3 of the Sentenc-
ing Guidelines thus falls outside the purview of the Double
Jeopardy Clause.
Second, even if §3147 can be construed as an additional
punishment, the Double Jeopardy Clause only forbids the
sentencing court from prescribing greater punishment than
Congress intended. Missouri v. Hunter, 459 U.S. 359, 365-68
Nos. 15-1266 and 15-1271 9
(1983); Boyd v. Boughton, 798 F.3d 490, 497-98 (7th Cir. 2015).
It does not forbid, as Marcotte assumes, Congress from au-
thorizing multiple punishments for the same conduct in the
same proceeding. Boyd, 798 F.3d at 497-98, 501. As explained
above, Congress, through §3147 and §3C1.3 of the Sentenc-
ing Guidelines, permits cumulative punishments based on a
defendant’s failure to appear while released. See Rosas, 615
F.3d at 1065 (analyzing Missouri in the context of §3C1.3 of
the Sentencing Guidelines, and reaching the same conclu-
sion); Dison, 573 F.3d at 208 & n.18 (same).
For completeness, we note the contrary views set forth by
the dissents in Fitzgerald (4th Circuit) and Benson (6th Cir-
cuit). We do not find these compelling, however, in light of
the plain language of 18 U.S.C. §3147 and the well-settled
rule that the Sentencing Guidelines are, by default, cumula-
tive, absent express language to the contrary. Underpinning
both dissents is Simpson v. United States, 435 U.S. 6 (1978), a
pre-Guidelines case addressing two statutes that together
created cumulative enhancements for the crime of robbery
with a firearm: 18 U.S.C. §§924(c) and 2113(d). Wanting to
avoid double jeopardy concerns, the Court in Simpson ap-
plied the interpretative principle that Congress is presumed
to have intended the specific statute to take precedence over
the general one. In response to Simpson, Congress amended
§924(c) to expressly permit cumulative enhancements for
committing a crime with a firearm. See Fitzgerald, 435 F.3d at
489 (King, J., dissenting) (discussing the Congressional histo-
ry of §924(c)). No such amendments are necessary here,
however, because Congress has already approved cumula-
tive punishments as the “default rule” in the Sentencing
Guidelines through Application Note 4(B) to §1B1.1. Vizcar-
10 Nos. 15-1266 and 15-1271
ra, 668 F.3d at 520. So the motivating concerns in Simpson are
not present here.
The district court did not err in imposing an enhance-
ment under §3C1.3 of the Sentencing Guidelines. 1
III
Today we become the sixth Court of Appeals to hold that
18 U.S.C. §3147, through §3C1.3 of the Sentencing Guide-
lines, can enhance a sentence for the crime of failing to ap-
pear under 18 U.S.C. §3146. Accordingly, the district court’s
sentence is AFFIRMED.
1 Marcotte alternatively argues that the district court failed to
properly apportion on the judgment form the 78-month sentence be-
tween the underlying offense and the enhancement, as required by Ap-
plication Note 1 to §3C1.3 of the Sentencing Guidelines. Not only did
Marcotte fail to develop this argument, thereby waiving it, see United
States v. Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006), but also any error is
harmless. See United States v. Wilson, 966 F.2d 243, 249 (7th Cir. 1992)
(concluding that a remand is not warranted when a mistake does not
affect the district court’s selection of the sentence imposed).