NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0441n.06
Nos. 10-4447 & 10-4449
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 30, 2011
UNITED STATES OF AMERICA,
LEONARD GREEN, Clerk
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
RAFIC JABER and HANANE JABER, NORTHERN DISTRICT OF OHIO
Defendants-Appellants.
/
BEFORE: CLAY, COLE, and GILMAN, Circuit Judges.
CLAY, Circuit Judge. In this consolidated appeal, Defendants Rafic Jaber and Hanane
Jaber appeal their respective sentences imposed by the district court for failure to appear for service
of sentence in violation of 18 U.S.C. § 3146. For the reasons discussed below, the respective
sentences imposed by the district court are AFFIRMED.
BACKGROUND
In 2005, Defendants Rafic Jaber (“Rafic”) and Hanane Jaber (“Hanane”), husband and wife,
pleaded guilty in the Northern District of Ohio to bankruptcy fraud and bank fraud in violation of
18 U.S.C. §§ 157 and 1344. On June 12, 2006, the district court sentenced Rafic and Hanane to
terms of imprisonment of 14 months and 12 months, respectively. The district court ordered that
Defendants serve their respective sentences consecutively, so that one parent would be available to
take care of Defendants’ minor children.
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The district court permitted Defendants to self-surrender. Rafic was to surrender at Federal
Corrections Institution (“FCI”) Ashland on July 18, 2006, and Hanane was to surrender at FCI
Marianna on July 25, 2007. After their release pending self-surrender, Defendants failed to report
to pretrial services as required on June 28, 2006 and July 5, 2006. Rafic failed to report to FCI
Ashland on July 18, 2006 as required, and Hanane failed to appear in the district court on October
30, 2006 for a show cause hearing.
It was later determined that Defendants and their children fled the United States to Lebanon.
Although Defendants had surrendered their United States passports, Defendants did not disclose the
existence of or surrender their Lebanese passports, which Defendants used to exit the United States.
At some point, the U.S. Embassy in Lebanon learned of Defendants’ presence in Lebanon and their
intention to return to the United States. The Embassy relayed this information to the U.S. Marshals
Service, which arrested Defendants on October 5, 2009, upon their arrival into the United States at
Chicago O’Hare International Airport.
On October 7, 2009, Defendants were charged with failure to appear for service of sentence
in violation of 18 U.S.C. § 3146. On February 16, 2010, Defendants pleaded guilty without a plea
agreement, and separate sentencing hearings were thereafter held on November 1, 2010.
At the sentencing hearings, the district court began by calculating the applicable sentencing
range under the United States Sentencing Guidelines (U.S.S.G. or “Guidelines”). The district court
assigned each Defendant a Total Offense Level of 9, which was calculated by subtracting two points
for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) from a Base Offense Level of 11
for failure to appear pursuant to U.S.S.G. § 2J1.6(a)(1). The district court assigned 3 and 2 criminal
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history points, respectively, to Rafic and Hanane on account of their sentences from the original 2006
fraud case. See U.S.S.G. §§ 4A1.1(a), (b). The district court also assigned 2 additional criminal
history points to each Defendant for being on “escape status” pursuant to U.S.S.G. §§ 4A1.1(d) and
4A1.1.2(n) at the time of the instant offense, which resulted in each Defendant being assigned a
Criminal History Category III.
With a Total Offense Level of 9 and a Criminal History Category III, the district court
calculated each Defendant’s Guidelines range to be 8 to 14 months of incarceration. Neither
Defendant objected to the calculation. After considering the factors set forth in 18 U.S.C. § 3553(a),
the district court sentenced each Defendant to 14 months of incarceration, to be served consecutively
to the sentences previously imposed for bankruptcy and bank fraud.
Each Defendant timely appealed, and the cases were consolidated for purposes of appeal.
DISCUSSION
A. Standard of Review
Defendants challenge their respective sentences based on a claim that the district court
engaged in impermissible double counting, which is a challenge to the procedural reasonableness
of the sentence imposed by the district court. See, e.g., United States v. Lanning, 633 F.3d 469, 477
(6th Cir. 2011). Procedural reasonableness considers “the factors evaluated and the procedures
employed by the district court in reaching its sentencing determination.” United States v. Davis,
Nos. 09-5200/5201, 2011 WL 96513, at *12 (6th Cir. Jan. 12, 2011) (internal quotation marks and
citation omitted). As this Court has explained:
In reviewing sentences for procedural reasonableness[, the Court] must ensure that
the district court: (1) properly calculated the applicable advisory Guidelines range;
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(2) considered the other § 3553(a) factors as well as the parties’ arguments for a
sentence outside the Guidelines range; and (3) adequately articulated its reasoning
for imposing the particular sentence chosen, including any rejection of the parties’
arguments for an outside-Guidelines sentence and any decision to deviate from the
advisory Guidelines range.
United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007).
Before evaluating the procedural reasonableness of Defendants’ sentences, the Court must
“determine what standard of review applies” by “determin[ing] whether [Defendants] preserved
these claims for appeal.” Id. In this case, because neither Defendant raised the issue of double
counting below despite the opportunity to do so, the Court will review only for plain error. See, e.g.,
United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc). Plain error means an “(1) error
(2) that was obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the
fairness, integrity, or public reputation of the judicial proceedings.” Id. at 386 (internal quotation
marks omitted).
B. Application
Defendants challenge their respective sentences on the basis that the district court engaged
in impermissible double counting, arguing that the district court’s addition of two criminal history
points for being on “escape status” pursuant to U.S.S.G. § 4A1.1(d) is duplicative of the underlying
offense of failure to appear for service of sentence.
“Impermissible ‘double counting’ occurs when precisely the same aspect of a defendant’s
conduct factors into his sentence in two separate ways.’” United States v. Levy, 250 F.3d 1015, 1017
(6th Cir. 2001) (quoting United States v. Farrow, 198 F.3d 179, 193 (6th Cir. 1999)). But as we
have recognized, “not all instances of double counting are impermissible.” Farrow, 198 F.3d at 194.
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For instance, “we allow double counting where it appears that Congress or the Sentencing
Commission intended to attach multiple penalties to the same conduct.” Id.; see also United States
v. Thompson, 515 F.3d 556, 563 (6th Cir. 2008).
In United States v. Lewis, we held that the application of U.S.S.G. § 4A1.1(d) in the case of
failure to appear under 18 U.S.C. § 3146 does not amount to impermissible double counting. 900
F.3d 877, 881 (6th Cir.), cert. denied 498 U.S. 840 (1990). The defendant in Lewis pleaded guilty
to failure to appear in violation of 18 U.S.C. § 3146, and the district court subsequently enhanced
his criminal history category for being on “escape status” pursuant to U.S.S.G. § 4A1.1(d). Id. at
878-79. The defendant appealed his sentence on the basis of impermissible double counting, namely
that his “escape status” was counted both in the base offense level pursuant to § 2J1.6(a)(1) as an
element of the crime, and in his criminal history category pursuant to § 4A1.1(d) as an enhancement.
We affirmed the district court’s application of the enhancement for being on “escape status”
pursuant to § 4A1.1(d), even though the defendant’s “escape status” also factored into his base
offense level under § 2J1.6(a)(1). Applying traditional canons of statutory interpretation, we
reasoned that the language of § 4A1.1(d) is clear, and does not preclude application of the
enhancement in cases involving failure to appear. Id. at 881. As a result, we held that the “clear
language of the Guidelines should apply, and it may be presumed that in formulating the base offense
level in § 2J1.6 for the crime of failure to appear, the Sentencing Commission was aware that points
would be added to the defendant’s criminal history score under § 4A1.1D.” Id.
The decision in Lewis is directly on point and appears to foreclose Defendants’ arguments
on appeal. It is well settled that a “prior panel decision remains controlling authority unless an
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inconsistent decision of the [U.S.] Supreme Court requires modification of the decision or this Court
sitting en banc overrules the prior decision.” Skyes v. Anderson, 625 F.3d 294, 319 (6th Cir. 2010).
Recognizing as much, Defendants urge us “to take a fresh look at the issue” in light of United
States v. Booker, 543 U.S. 220 (2005), and its progeny. Defendants provide only limited justification
for overruling Lewis in light of Booker, reasoning as follows in its entirety:
Lewis was decided approximately fifteen years before the sentencing landscape was
drastically changed by the United States Supreme Court in Booker. Lewis, and its
progeny both in and outside this Circuit, includes language at direct odds with
Booker in that the Guidelines were interpreted as if they were a statute or a court rule.
These courts employed principles of statutory interpretation in their respective
analyses, which only underscores that those courts applied the guidelines in a
mandatary manner as they would with statutes and court rules.
(Defs.’ Br. at 11.) Having considered Defendants’ argument, we conclude that Lewis remains
controlling authority. Booker fundamentally altered federal sentencing law, but it did not undermine
our reasoning or holding in Lewis. See, e.g., United States v. Garcia-Carrdenas, 555 F.3d 1049,
1050 (9th Cir. 2009) (reaffirming pre-Booker case law, where Booker and its progeny “do not
undermine or even affect the reasoning on which we relied”).
Lewis held that any double counting under these circumstances was permissible because the
clear language of the Guidelines does not prohibit such double counting. Nothing in Booker would
undercut the viability of this holding, and in fact Lewis’ reasoning continues to fit within the Court’s
post-Booker case law regarding double counting. See, e.g., United States v. Basulto-Pulido, 309 F.
App’x 945, 949 (6th Cir. 2009) (“[W]e allow double counting where it appears that Congress or the
Sentencing Commission intended to attach multiple penalties to the same conduct.”) (internal
quotation marks and citation omitted). Moreover, to the extent Lewis applied traditional principles
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of statutory interpretation to the Guidelines, this practice remains good law after Booker. See, e.g.,
United States v. Jackson, 635 F.3d 205, 209 (6th Cir. 2011) (“In interpreting the Sentencing
Guidelines, the traditional canons of statutory interpretation apply.”).
Accordingly, because Lewis remains controlling law and dictates the result in this case, the
district court did not commit plain error by applying the enhancement for being on “escape status”
pursuant to § 4A1.1(d), even though Defendants were sentenced for failure to surrender for service
of sentence. See Skyes, 625 F.3d at 319 (stating that a panel “is without authority to overrule binding
precedent”).
CONCLUSION
For the reasons discussed above, the respective sentences imposed by the district court are
AFFIRMED.1
1
We briefly note, and reject, Defendants’ additional argument, consisting of one sentence
that states as follows: “[I]t is unclear from the record that the court below knew it was at liberty to
disregard the application of [the Guidelines] to Appellant’s case, or at least to disregard the impact
the enhancement had on Appellate’s advisory guideline range.” (Defs.’ Br. at 11-12.) Without any
citation to the record or case law, and without any elaboration whatsoever, we find the argument to
be waived. Even if it were not waived, it is clear from the sentencing hearing transcripts that the
district court was aware that the Guidelines were advisory in nature. (See, e.g., R. 39 at 12 (Hanane);
R. 37 at 8 (Rafic).)
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