United States v. Robert Clemendor

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-15537 JUNE 13 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 06-00134-CR-T-27-MSS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT CLEMENDOR,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(June 13, 2007)

Before ANDERSON, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

Robert Clemendor appeals his 37-month sentence for failing to appear to

begin service of his sentence, in violation of 18 U.S.C. § 3146(a)(2). On appeal,

Clemendor argues that the district court erred by applying a three-level increase to
his offense level under U.S.S.G. § 2J1.7 when calculating his advisory sentencing

range, pursuant to the U.S. Sentencing Guidelines, because it is unclear whether §

2J1.7 and its related statute, 18 U.S.C. § 3147, apply to the crime of failing to

appear to begin service of a sentence, a violation of § 3146(a)(2). In support of

this argument, Clemendor relies on an amendment to the Guidelines, which

became effective after imposition of Clemendor’s sentence and which Clemendor

says makes the § 2J1.7 three-level enhancement applicable to a defendant

convicted of violating 18 U.S.C. § 3146 only if the defendant obstructed an

investigation or trial. According to Clemendor, application of both § 3146 and §

3147, as well as § 2J1.7, resulted in improper double counting, based on the same

offense conduct, under the Guidelines. He also challenges the reasonableness of

his sentence. After thorough review of the record and careful consideration of the

parties’ briefs, we affirm.

We review the district court’s interpretation and application of the

Sentencing Guidelines de novo. See United States v. Bozza, 132 F.3d 659, 661

(11th Cir. 1998). Our review of a claim of double counting under the Guidelines is

de novo. See United States v. Perez, 366 F.3d 1178, 1183 (11th Cir. 2004). After

United States v. Booker, 543 U.S. 220 (2005), a district court, in determining a

reasonable sentence, must consider the correctly calculated advisory Guidelines

range and the 18 U.S.C. § 3553(a) factors. See United States v. Talley, 431 F.3d

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784, 786 (11th Cir. 2005). On appeal, we review the defendant’s ultimate sentence

for reasonableness in light of the § 3553(a) factors. United States v. Williams, 435

F.3d 1350, 1353 (11th Cir. 2006). “[T]he party who challenges the sentence bears

the burden of establishing that the sentence is unreasonable in the light of both

[the] record and the factors in section 3553(a).” Talley, 431 F.3d at 788.

The relevant facts are straightforward. On April 11, 2006, Clemendor was

indicted on one count of failing to surrender for service of his sentence, in violation

of 18 U.S.C. § 3146(a)(2). He pled guilty to the charge and proceeded to

sentencing. According to the Presentence Investigation Report (“PSI”), in October

2005, Clemendor had pled guilty to conspiracy to commit wire fraud, in violation

of 18 U.S.C. § 1349. On February 2, 2006, he was sentenced on that charge to a

48-month term of imprisonment. At the sentencing hearing for the wire fraud

conviction, Clemendor asked the district court to allow him to voluntarily

surrender for service of his sentence because he needed to arrange for the care of

his daughter. The court granted the request and gave Clemendor five days to self-

surrender. Five days later, on February 7th, Clemendor told his pretrial services

officer that he was driving to Atlanta to self-surrender, but he never appeared at the

pretrial services office. Over two months later, on April 11, 2006, a warrant was

issued for his arrest and the instant indictment issued. Clemendor was arrested in

West Palm Beach on May 1, 2006.

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 The PSI recommended a base offense level of 11, pursuant to U.S.S.G. §

2J1.6(a)(1), which applies to a defendant who has failed to appear if the offense

constituted a failure to report for service of sentence. The PSI also recommended a

three-level increase in the offense level, pursuant to U.S.S.G. § 2J1.7, because

Clemendor had committed the failure-to-appear offense while on release, and a

two-level reduction for acceptance of responsibility, pursuant to U.S.S.G. §

3E1.1(a). With an adjusted offense level of 12 and a criminal history category VI

(based on 19 criminal history points), Clemendor faced an advisory Guidelines

range of 30 to 37 months’ imprisonment.

Clemendor lodged various objections to the PSI, including to the three-level

increase of his offense level under § 2J1.7. At the sentencing hearing, Clemendor

argued that he had not received proper notice that the government was going to

seek the enhancement. He also asserted that application of the enhancement

resulted in improper double counting because he would be penalized for the same

conduct twice, and that the statute underlying § 2J1.7, 18 U.S.C. § 3147, was

ambiguous such that application of the statute would violate the rule of lenity.

The district court overruled Clemendor’s objection, stating that the PSI and

the release form Clemendor signed in connection with the underlying fraud case

provided adequate notice of the possibility of the enhancement and of the fact that

he would be penalized if he failed to appear to serve his sentence. The court also

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rejected Clemendor’s double counting argument. The court adopted the PSI’s

recommendations and then heard Clemendor’s argument in support of mitigation.

Clemendor argued that a Guidelines sentence would be too high, and urged

the court to impose a one-year sentence in light of the fact that he also would be

serving a 4-year term for his original fraud conviction. He also highlighted that he

had turned himself in willingly once he was contacted by authorities, and part of

the reason for his failure to appear was that he had to find adequate care for his

three-year-old daughter. In further support of a below-range sentence, Clemendor

urged that a 30- to 37-month sentence would provide for an unwarranted

sentencing disparity, and that a one-year sentence would adequately deter him and

others.

Clemendor also presented the testimony of his mother and his own

testimony in support of mitigation. His mother stated that her son had turned his

life around, and that even though she was going to be taking care of his child while

he was in prison, she was 74 years old and afraid of what would happen to the

child if she passed away. Clemendor asked the court for mercy and reiterated that

his failure to appear was due to his desire to put his daughter in a better situation.

The government responded Clemendor had been shown leniency in the past

and had been given “the benefit of the doubt” on several occasions. The

government highlighted that a probation officer had contacted Clemendor five days

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after his release and told him to turn himself in at the U.S. Marshal’s office.

Clemendor had claimed that he was on his way to turn himself in, but he never

showed up. The government argued that Clemendor had exhausted all good faith,

and a sentence within the Guidelines range was reasonable.

In imposing sentence, the district court stated that it was considering the

following factors under 18 U.S.C. § 3553(a): (1) the circumstances of the offense;

(2) Clemendor’s background and criminal history; (3) the seriousness of the

offense; (4) the need to deter others; and (4) the need to protect the public. The

court said that Clemendor had violated the court’s trust, and that the public needed

to be protected from him because he could not be trusted. The court stated that

Clemendor deserved a long sentence because he had violated the court’s trust and

put money in front of his freedom and his daughter’s needs. The district court

sentenced Clemendor to a 37-month sentence that would run consecutively to the

term of imprisonment imposed for his original fraud conviction. The court also

indicated to Clemendor’s mother that it had considered her letter and testimony,

and, while it was happy that she was going to be caring for Clemendor’s daughter,

Clemendor had to be punished.

Clemendor renewed his objections and also argued that the sentence was not

reasonable as the court had not adequately considered the factors listed in §

3553(a). The district court responded that it had listed the factors it had considered

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and also stated that it wanted to be “very clear” that it was relying on all of the

sentencing factors set forth in § 3553(a). This appeal followed.

First, Clemendor challenges application of the three-level enhancement to

his offense level, pursuant to § 2J1.7, arguing that amendments to the Guidelines,

which took effect after his sentencing, prohibited application of the enhancement

because he did not obstruct the investigation or trial of the underlying wire fraud

case. He also contends that the related statute, 18 U.S.C. § 3147, is ambiguous

and, accordingly, should not apply to him, pursuant to the rule of lenity. He urges

that application of § 3147 to a § 3146 violation results in improper double counting

at sentencing.

Clemendor was convicted of violating 18 U.S.C. § 3146(a)(2), which

provides that a person who, having been released under Title 18, Chapter 207,

“Release and Detention Pending Judicial Proceedings,” knowingly fails to

surrender for service of his sentence shall be punished by imposition of a fine,

imprisonment for not more than 10 years, or both, when the underlying offense

was punishable by a term of imprisonment of 15 years or more. See 18 U.S.C. §

3146(a)(2). The statutory maximum for Clemendor’s underlying offense,

conspiracy to commit wire fraud, was 20 years’ imprisonment. See 18 U.S.C. §§

1343, 1349. Under the Sentencing Guidelines, the base offense level for a

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defendant who commits the offense of failing to report for service of a sentence is

11. See U.S.S.G. § 2J1.6(a)(1) (Nov. 2005).

Section 3147 of Title 18, in turn, provides in relevant part:

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;

....

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

18 U.S.C. § 3147. The Sentencing Guidelines provide that if an enhancement

under § 3147 applies, a defendant’s offense level is increased by three levels. See

U.S.S.G. § 2J1.7 (Nov. 2005).

The application of § 3147, and consequent assessment of § 2J1.7’s 3-level

increase to the offense level to enhance a sentence, to the crime of failing to appear

under § 3146 is a question of first impression in this Circuit. As we explain, in

light of the unambiguous language of the pertinent statutes and our sister circuits’

consistent treatment of this very issue, we are unpersuaded by Clemendor’s

argument that the applicable statutory provisions are ambiguous and that this Court

should interpret them in a manner favorable to him under the rule of lenity.

See Dunn v. United States 442 U.S. 100, 112 (1979) (discussing the rule of lenity).

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Because we conclude the district court did not err by applying the enhancement

provision of § 3147, we also find that the increase to Clemendor’s offense level

was not error. Nor do we find that the 2006 amendments to the Sentencing

Guidelines change the application of § 2J1.7 to Clemendor’s offense level.

“[I]n the case of statutory construction, our analysis begins with the

language of the statute. And where the statutory language provides a clear answer,

it ends there as well.” Hughes Aircraft Co. v. Jacobson, 535 U.S. 432, 438 (1999)

(citation and quotations marks omitted); see also Estate of Cowart v. Nicklos

Drilling Co., 505 U.S. 469, 475 (1992) (“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.”). Simply put, in the face of an

unambiguous criminal statute, the rule of lenity does not apply. See United States

v. Johnson, 529 U.S. 53, 59 (2000); see also Albernaz v. United States, 450 U.S.

333, 342 (1981) (observing that the rule of lenity “serves only as an aid for

absolving an ambiguity; it is not used to beget one.”).

Here, the language of § 3147 provides a clear answer. The statute

unambiguously applies to defendants, such as Clemendor, who are convicted of an

offense committed while on release. Because Clemendor was convicted of

violating § 3146 while released under Chapter 207, the enhancement under § 3147

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applied for purposes of sentencing. Our conclusion that § 3147 is not ambiguous,

even where the underlying crime is a violation of § 3146, is consistent with the

analysis of this issue by our sister circuits. As the Fourth Circuit has held:

“Section 3147 plainly applies, without exception, to offense committed while on

release under Chapter 207 of Title 18. Fitzgerald’s failure to appear, which

violated § 3146, is clearly an offense committed while on release under chapter

207.” United States v. Fitzgerald, 435 F.3d 484, 486 (4th Cir. 2006).

Speaking to the very same issue, the Sixth Circuit also has rejected a

defendant’s argument that § 3147 was ambiguous. See United States v. Benson,

134 F.3d 787, 788 (6th Cir. 1988) (“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] . . . [and] clearly and unambiguously mandates that

the courts impose additional consecutive sentences on persons convicted of crimes

they committed while released on bond.” (citation omitted)); Accord United States

v. Patterson, 820 F.2d 1524, 1526 (9th Cir. 1987).

Because the plain and unambiguous language of § 3147 makes clear that the

statute applies, without exception, to offenses committed while on release under

Chapter 207 of Title 18, Clemendor’s violation of § 3146 comes within the ambit

of § 3147. Moreover, application of the sentencing enhancement of § 3147 to a §

3146 offense does not amount to double counting, nor does it implicate principles

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of Double Jeopardy. Clemendor suggests that he is being punished twice for the

same conduct. However, for Double Jeopardy purposes, the test is not whether

Congressionally authorized penalties amount to a double counting. Indeed, the

Supreme Court has held, in connection with a challenge to another sentence-

enhancing statutory provision, 18 U.S.C. § 924(c), which enhances a sentence for

using, carrying, or possessing a firearm during and in relation to a crime of

violence or a drug trafficking crime, that the Double Jeopardy Clause is not

implicated when Congress imposes cumulative or multiple penalties. See Whalen

v. United States, 445 U.S. 684, 688-89 (1980).

Rather, a double jeopardy violation occurs when courts impose cumulative

or multiple penalties without Congressional authorization. Id. “[S]imply because

two criminal statutes may be construed to proscribe the same conduct . . . does not

mean that the Double Jeopardy clause precludes the imposition, in a single trial, of

cumulative punishments pursuant to those statutes.” Missouri v. Hunter, 459 U.S.

359, 366 (1983). As we have observed, “[w]here the legislature mandates

cumulative punishments under two statutes, regardless of whether those statutes

proscribe the same course of conduct, the trial court must impose cumulative

punishment.” United States v. Strickland, 261 F.3d 1271, 1274 (11th Cir. 2001)

(emphasis added). Here, because no cumulative or multiple punishment was

imposed, let alone was imposed without Congressional authorization, the district

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court did not err by applying § 3147’s enhancement provision to a § 3146

violation. Indeed, we could reach no other result given the plain and unambiguous

language of Congress on the matter.

Because 18 U.S.C. § 3147 unambiguously applies when, as here, a defendant

has been convicted of an offense under Chapter 207 of Title 18, it is equally clear

that the district court did not err in applying U.S.S.G. § 2J1.7 when calculating

Clemendor’s advisory Guidelines range. Clemendor’s base offense level, before

any adjustments, for failing to report for service of his sentence, a violation of §

3146(a)(2), was 11. See U.S.S.G. § 2J1.6(a)(1) (Nov. 2005). In calculating a

defendant’s offense level, where a defendant has committed an offense while on

release, the applicable version of the Sentencing Guidelines provides: “If an

enhancement under 18 U.S.C. § 3147 applies, add three 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 guidelines for the offense committed while

on release.” U.S.S.G. § 2J1.7 (Nov. 2005). The application notes state that

“[b]ecause 18 U.S.C. § 3147 is an enhancement provision, rather than an offense,

this section provides a specific offense characteristic to increase the offense level

for the offense committed while on release.” U.S.S.G. § 2J1.7 cmt. (n.1) (2005).

Because Clemendor was subject to a § 3147 enhancement, § 2J1.7 applied to

him. Section 2J1.7 gives effect to the unambiguous language of § 3147, which

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mandates that an additional consecutive penalty be imposed when a defendant

commits an offense while on release. The commentary to § 2J1.7 explains that “in

order to comply with [§ 3147], [a court] should divide the sentence on the

judgment form between the sentence attributable to the underlying offense and the

sentence attributable to the enhancement.” U.S.S.G. § 2J1.7 comment. (n.2).

Clemendor urges that application of both § 2J1.6 and § 2J1.7 resulted in improper

double counting under the Sentencing Guidelines. Again, we are unpersuaded by

his argument.

Clemendor’s base offense level for a violation of § 3146 is found in § 2J1.6,

which concerns Clemendor’s offense of conviction. Section 3147, in turn, and the

related Guidelines provision, § 2J1.7, constitutes “an enhancement provision,

rather than an offense [and] provides a specific offense characteristic to increase

the offense level for the offense committed while on release.” § 2J1.7 comment.

(n.1). Because § 2J1.6 sets the base offense level for violations of 18 U.S.C. §

3146, while § 2J1.7 is an enhancement provision related to 18 U.S.C. § 3147, these

two Guidelines sections concern “conceptually separate notions relating to

sentencing.” United States v. Jackson, 276 F.3d 1231, 1235-36 (11th Cir. 2001).

We have held:

Impermissible double counting occurs only when one part of the
Guidelines is applied to increase a defendant’s punishment on account
of a kind of harm that has already been fully accounted for by

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 application of another part of the Guidelines. We presume that the
Sentencing Commission intended separate guidelines sections to
apply cumulatively, unless specifically directed otherwise. Double
counting a factor during sentencing is permitted if the Sentencing
Commission . . . intended that result and each guideline section in
question concerns conceptually separate notions relating to
sentencing.

United States v. Dudley, 463 F.3d 1221, 1226-27 (11th Cir. 2006) (internal

quotations and citations omitted). On the instant record, there was no double

counting under the Guidelines.

We also are unpersuaded by Clemendor’s argument that Amendment 684 to

the Sentencing Guidelines, which had an effective date after Clemendor’s sentence

was imposed on October 11, 2006, changes the result in his case. “When

reviewing the district court’s application of the sentencing guidelines, we apply the

version of the guidelines in effect on the date of the sentencing hearing.” United

States v. Descent, 292 F.3d 703, 707 (11th Cir. 2002). However, we will consider

amendments that clarify the Guidelines regardless of the date of sentencing. Id.

“Clarifying amendments do not effect a substantive change, but provide persuasive

evidence of how the Sentencing Commission originally envisioned application of

the relevant guideline.” Id. Notably, Amendment 684 is not included in the list of

amendments to be applied retroactively. See U.S.S.G. § 1B1.10(c).

On November 1, 2006, pursuant to Amendment 684, section 2J1.7 was

deleted from the Guidelines and a new § 3C1.3 was added. See U.S.S.G. App. C,

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Amendment 684. Like former § 2J1.7, the new § 3C1.3 provides for a 3-level

increase in the offense level if § 3147 applies. Id. Amendment 684 explains that

the enhancement provision was moved from Chapter Two to Chapter Three in

order to “ensure[ ] the enhancement is not overlooked and is consistent with other

enhancements in Chapter Three, all of which apply to a broad range of offenses.”

Id. Amendment 684 also changed the heading to Chapter Three, Part C by adding

“AND RELATED ADJUSTMENTS” to the end. Id. Accordingly, the heading to

Chapter Three, Part C now reads, “PART C - OBSTRUCTION AND RELATED

ADJUSTMENTS.” U.S.S.G. § 3C.

We need not decide whether the amendment that deleted § 2J1.7 and created

a similarly worded section in § 3C1.3 was a clarifying amendment or not because

even if it retroactively applied to Clemendor, it would not change the result. The

commentary to Amendment 684 makes clear that the three-level enhancement

applicable to § 3147 offenses was moved from Chapter Two to Chapter Three to

ensure that the enhancement is not overlooked, and not to narrow its applicability

in § 3146 cases, as Clemendor suggests. Indeed, there is no indication, express or

implied, that the amendment was made to affect § 3146 cases, in particular. In

short, because we find no support for Clemendor’s contention that moving the

provision from § 2J1.7 to § 3C1.3 effected a substantive change on the application

15
of the enhancement to § 3146 offenses, even if he was entitled to retroactive

application of Amendment 684, it would not change the result here.

Finally, Clemendor contends that his 37-month sentence was unreasonable

and that a lesser sentence would have satisfied the 18 U.S.C. § 3553(a) factors. He

also argues that because he would not have received a three-level enhancement if

he had been sentenced after the 2006 Guidelines amendments went into effect, the

district court created an unwarranted sentencing disparity by applying the

enhancement in his case. He also notes that he failed to appear because he had to

find someone to care for his three-year-old daughter.

We have held that “[i]n reviewing the ultimate sentence imposed by the

district court for reasonableness, we consider the final sentence, in its entirety, in

light of the § 3553(a) factors.” United States v. Martin, 455 F.3d 1227, 1237 (11th

Cir. 2006) (brackets in original) (citation omitted). The district court need not

discuss each factor or state on the record that it has explicitly considered each

factor. Talley, 431 F.3d at 786. Rather, an acknowledgment by the district court

that it has considered the defendant’s arguments and the § 3553(a) factors will

suffice. Id.

Review for reasonableness is deferential, and the relevant inquiry is

“whether the sentence imposed by the district court fails to achieve the purposes of

sentencing as stated in section 3553(a).” Id. at 788. Moreover, “[t]here is a range

16
of reasonable sentences from which the district court may choose,” and although a

sentence within the Guidelines range will not be considered to be per se

reasonable, “when the district court imposes a sentence within the advisory

Guidelines range, we will expect the choice to be a reasonable one.” Id. at 787-88.

The burden of proving that the sentence is unreasonable in light of the record and

the § 3553(a) factors rests on the party challenging the sentence. United States v.

Wilks, 464 F.3d 1240, 1245 (11th Cir.), cert. denied, 127 S.Ct. 693 (2006).

Here, the district expressly stated that it had considered the § 3553(a)

factors, and although the court did not discuss each factor on the record, it was not

required to do so, and its acknowledgment that it considered all of the factors is

sufficient. Talley, 431 F.3d at 786. The court heard Clemendor’s argument and

considered his evidence in support of mitigation, including Clemendor’s testimony,

his mother’s testimony and letters from his mother. Moreover, the court

considered and rejected Clemendor’s argument that he failed to appear because he

was concerned about his daughter’s needs.1 In short, Clemendor has not met his

1
As for Clemendor’s contentions that the 37-month sentence was unreasonable because a
lower sentence would have sufficed, and that 2006 amendments to the Guidelines should be
considered in the § 3553(a) calculus, despite that they were effective only after his sentencing, lacks
merit. It is well-settled that as a general matter, there is a range of sentences from which the district
court may choose. Talley, 431 F.3d at 788. On this record, Talley has not shown unreasonableness
based on the 2006 amendments, which did not apply to his sentence.

17
burden of showing that the 37-month sentence was unreasonable, in light of the

advisory Guidelines range and the § 3553(a) factors.

AFFIRMED.

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