UNITED STATES of America, Plaintiff-Appellee, v. Sean FITZGERALD, Defendant-Appellant, 435 F.3d 484

OPINION SHEDD, Circuit Judge. Sean Fitzgerald appeals the district court’s application of a three-level enhancement to his sentence following a conviction for failing to appear at sentencing. Fitzgerald claims that the enhancement violates the rule of lenity and the prohibition against double jeopardy. Finding no error, we affirm. I In November 2003, a federal grand jury indicted Fitzgerald for mail fraud and wire fraud. The district court released Fitzgerald on a secured bond. Following a guilty plea, a date was set for sentencing.

When Fitzgerald failed to appear at his sentencing, the district court issued an arrest warrant, and Fitzgerald was arrested. A federal grand jury thereafter returned a one-count indictment against Fitzgerald for knowingly failing to appear for sentencing in violation of 18 U.S.C. § 3146, which carried a maximum statutory sentence of ten years imprisonment to run consecutively with any sentence for his initial crimes. Fitzgerald pled guilty.

A presentence report (“PSR”) was prepared, which included a three-level enhancement to Fitzgerald’s offense level, pursuant to United States Sentencing Guidelines § 2J1.7 and 18 U.S.C. § 3147, for committing an offense while on release. Under § 3147, a person who is convicted of committing an offense while on release under

chapter 207 of Title 18 of the United States Code “shall be sentenced, in addition to the sentence prescribed for the offense to (1) a term of imprisonment of not more than ten years imprisonment if the offense is a felony....”

Section 2J1.7 “incorporates this provision into the guidelines by requiring a three-level increase to the base offense level when ... § 3147 is applicable.” United States v. Kincaid, 964 F.2d 325, 327 (4th Cir.1992). At sentencing, Fitzgerald objected to the enhancement, arguing that it amounted to a double punishment and violated the rule of lenity. He also asserted that if Congress had intended enhanced penalties to apply to offenses under § 3146, those penalties would have been included under that statutory provision.

The district court overruled Fitzgerald’s objection, finding § 3147 to be clear and unambiguous. The district court also noted that because Congress enacted §§ 3146 and 3147 at approximately the same time, it should have been aware of the combined impact of the two statutes. Accordingly, the district court sentenced Fitzgerald to 27 months imprisonment, to be served consecutively with his sentence for the unrelated federal charges, and entered judgment. Fitzgerald filed a timely notice of appeal.

II The application of § 3147 to enhance a sentence for the crime of failing.to appear under § 3146 is a question of first impression in this circuit. The only circuit that has addressed this issue is the Sixth Circuit in United States v. Benson, 134 F.3d 787 (6th Cir.1998), a case on which both parties rely. In Benson, the Sixth Circuit rejected the argument that the rule of lenity and the rules of statutory construction foreclose an enhancement under § 3147 for the offense of failing to appear.

The Sixth Circuit noted that although criminal statutes are generally construed in favor of the defendant, courts “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.” Benson, 134 F.3d at 788. Applying this principle, the Sixth Circuit found § 3147 to be unambiguous and to apply to persons convicted of offenses committed while on release under

chapter 207 of Title 18 of the United States Code. Because the jury convicted the defendant under § 3146, the Sixth Circuit found that the district court properly applied the enhancement. In dissent, Judge Nelson argued that the imposition of both a sentence under § 3146 and an enhancement under § 3147 amounted to a double punishment and violated the Double Jeopardy Clause of the Fifth Amendment. Judge Nelson argued that because Congress had not indicated its intent that multiple punishments be imposed for the offense of failing to appear, the more specific statute, § 3146, should take precedence over § 3147.

Benson, 134 F.3d at 789-90 (Nelson, J., dissenting). We agree with the majority’s reasoning in Benson. “In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue[,] judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished.” Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992).

Section 3147 plainly applies, without exception, to offenses committed while on release under

chapter 207 of Title 18. Fitzgerald’s failure to appear, which violates § 3146, is clearly an offense committed while on release under

chapter 207. Given such unambiguous language, there is no need for us to apply the rule of lenity. See Chap man v. United States, 500 U.S. 453, 463, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) (“The rule of lenity ... is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of the Act, such that even after a court has seized every thing from which aid can be derived, it is still left with an ambiguous statute.”) (citations and internal punctuation omitted). Fitzgerald’s argument that § 3147 amounts to a double punishment in violation of the Double Jeopardy Clause also fails.

Section 3147, as promulgated by § 2J1.7, creates a sentence enhancement. See generally United States v. Cooper, 827 F.2d 991, 993 (4th Cir.1987) (noting that § 3147 requires “an enhanced sentence” for crimes committed while on release). The Supreme Court has “[h]istorically ... found double jeopardy protections inapplicable to sentencing proceedings” and has refused to construe sentence enhancements as additional punishments. Monge v. California, 524 U.S. 721, 728, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998).

Therefore, the district court’s enhancement of Fitzgerald’s sentence does not violate the Double Jeopardy Clause. Ill Because the plain language of § 3147 provides for the district court’s enhancement of Fitzgerald’s sentence and there is no Double Jeopardy problem, we affirm the sentence. AFFIRMED. .

Section 2J1.7 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.” . "We review the district court's

interpretation of the applicable sentencing guidelines de novo and its factual findings for clear error.” United States v. Quinn, 359 F.3d 666, 679 (4th Cir.2004). . Since § 3147 is considered an enhancement and not an additional punishment, the dissent's reliance on Simpson v. United States is misplaced.

In Simpson, a pre-Guidelines case addressing multiple punishments and enhancements for the single crime of robbery with a firearm, the Supreme Court avoided the constitutional question of Double Jeopardy by determining that the legislative history of § 924(c) "left us with little more than a guess as to how Congress meant to mesh that statute with the sentencing enhancement provisions scattered throughout the federal criminal code.” United States v. Gonzales, 520 U.S. 1, 10, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (explaining Simpson) (internal punctuation omitted).

Unlike Simpson, Fitzgerald does not face punishments and enhancements under multiple criminal statutes. He has been convicted of the crime of failure to appear and faces a single enhancement under § 3147 as promulgated by U.S.S.G. § 2J1.7. Although the enhancement is based on the conduct in the underlying offense, such double-counting “is generally authorized unless the Guidelines expressly prohibit it.” United States v. Reevey, 364 F.3d 151, 158 (4th Cir.2004). As we have pointed out, the plain, unambiguous language of § 3147 and the Guidelines permit the enhancement.