PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-4460
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UNITED STATES OF AMERICA
v.
MELVIN LEWIS,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-09-cr-00454-001)
District Judge: Honorable Gene E.K. Pratter
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Argued September 13, 2011
Before: RENDELL, JORDAN and BARRY, Circuit Judges.
(Opinion Filed: October 18, 2011)
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Kai N. Scott, Esq.
Brett G. Sweitzer, Esq. [ARGUED]
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Eric B. Henson, Esq.
Robert A. Zauzmer, Esq. [ARGUED]
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
In this case of first impression we consider whether 18
U.S.C. § 3147, which requires a sentence to be enhanced
when the crime of conviction was committed while on pretrial
release from another federal charge, allows a district court to
impose a sentence that exceeds the statutory maximum
sentence for the underlying crime. While some of our sister
courts of appeals have also considered this issue, none has
squarely decided it. We also consider the defendant’s
argument that the District Court erred in permitting him to be
convicted of an offense under § 3147, rather than having it be
considered as a sentencing enhancement.
2
Background
Defendant Melvin Lewis (“Lewis”) was charged with
one count of carjacking, in violation of 18 U.S.C. § 2119
(“Count One”), one count of possession of ammunition by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (“Count
Two”), and one count of committing an offense while on
pretrial release, in violation of 18 U.S.C. § 3147(1) (“Count
Three”). The offense charged as Count Three reads as
follows:
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; or
(2) a term of imprisonment of not more than
one year if the offense is a misdemeanor.
A term of imprisonment imposed under this
section shall be consecutive to any other
sentence of imprisonment.
18 U.S.C. § 3147. In order to seek an enhancement under §
3147, the government included it as a charged count so that it
could “avoid any possible problem” at sentencing. (App. 27.)
Following a jury trial, Lewis was acquitted on Count
One and convicted of Count Two. After the jury returned its
verdict as to Counts One and Two, the District Court
3
instructed the jury on Count Three. 1 The jury found both of
its elements to be satisfied, and it returned a verdict of guilty
on Count Three.
The statutory maximum sentence for the underlying
offense, possession of ammunition by a felon, was ten years.
See 18 U.S.C. § 924(a)(2) (imposing a ten year maximum
sentence on a conviction under § 922(g)(1)). Thus, if § 3147
is read to permit an additional ten years to be added to a
defendant’s sentence, Lewis could receive a sentence of up to
twenty years for the underlying crime, notwithstanding its ten
year statutory maximum sentence, because he committed the
offense while on release.
1
The District Court instructed on Count Three as follows:
In order to find Mr. Lewis guilty of this offense, you
must find that the Government proved each of the
following two elements beyond a reasonable doubt:
First: That Mr. Lewis was released under Title 18,
United States Code Chapter 207, which means that he
was released on bail after being charged with a federal
crime. And second: That while he was released, Mr.
Lewis committed a federal offense while released.
Because you have already found that Mr. Lewis was
guilty on Count 2, you have found that he committed a
federal offense. However, you must now determine
whether he committed this offense while on released
status. Here, the parties have stipulated that Mr. Lewis
was on release under Title 18, Chapter 207 of the
United States Code on January 9th, 2009.
(App. 33.)
4
Under the Sentencing Guidelines (“Guidelines”),
Lewis’ sentence was calculated as follows: The District Court
applied § 2K2.1(a)(4)(A) (the applicable guideline for an 18
U.S.C. § 922(g)(1) offense) to determine a base offense level
of twenty. Pursuant to § 2K2.1(b)(6), the District Court
added four levels because Lewis possessed ammunition in
connection with another felony offense, i.e. carjacking. Next,
it added two levels pursuant to § 3C1.2 for reckless
endangerment during flight. Finally, the District Court
applied § 3C1.3, the Guideline which implements § 3147, for
the commission of an offense while on release, and added
three levels. Thus, the total offense level was twenty-nine.
Lewis has a criminal history placing him within Category V.
As such, the advisory sentencing range was 140 to 175
months. The District Court sentenced Lewis to 138 months’
imprisonment, comprised of two consecutive terms: 96
months on Count Two and 42 months on Count Three. The
Court also imposed a three-year term of supervised release
and ordered Lewis to pay a $1,000 fine and a $200 special
assessment.
Discussion
The issue before us is unusual in that the Guidelines
range, 140 to 175 months, exceeds the statutory maximum for
the underlying offense, 120 months. We are the first court to
opine on the way in which § 3147 applies in this atypical fact
setting. Lewis contends that the District Court committed
plain error because it imposed a sentence exceeding the
statutory maximum for the underlying crime and treated §
3147 as a separate offense. The government disagrees,
arguing that the plain language of § 3147 increases the
statutory maximum for a felony by ten years if that felony
5
was committed while the defendant was on pretrial release for
another federal charge, and whether treated as an offense of
conviction or a sentencing enhancement, the ultimate effect is
the same at sentencing, so any error in categorizing the statute
as a basis for conviction is harmless. The government
concedes, however, that the special assessment should be
reduced from $200 to $100 because § 3147 does not state a
separate offense, but a sentencing enhancement.
Before the District Court, Lewis raised no objection to
his sentence exceeding the statutory maximum for the
underlying crime, nor to being charged with, and convicted
of, § 3147 as a crime under Count Three. Accordingly, we
review his challenge to the sentencing determination for plain
error. United States v. Couch, 291 F.3d 251, 252-53 (3d Cir.
2002). A sentence that exceeds the statutory maximum
constitutes plain error. United States v. Gunter, 527 F.3d 282,
288 (3d Cir. 2008), vacated on other grounds, 129 S. Ct.
2051 (2009). We also review his challenge to his conviction
on Count Three for plain error. United States v. Tann, 577
F.3d 533, 535 (3d Cir. 2009). 2 A conviction of an offense not
authorized by Congress constitutes plain error. Id. at 539-40.
2
Plain error review requires us to first determine whether the
District Court committed an error that is plain. Second, we
ask whether that error affected the defendant’s substantial
rights. Third, we must decide whether to exercise our
discretion to correct that error, provided that the error
seriously affects the fairness, integrity or public reputation of
judicial proceedings. Tann, 577 F.3d at 535.
6
Regarding the latter issue, it is fairly well established
that § 3147 is a sentencing enhancement, not a crime. See
United States v. Di Pasquale, 864 F.2d 271, 280 (3d Cir.
1988) (holding that § 3147 is a sentencing enhancement and
not a separate offense); see also United States v. Hecht, 212
F.3d 847, 848 (3d Cir. 2000) (treating § 3147 as a sentencing
enhancement); U.S.S.G. § 3C1.3 (referring to § 3147 as a
sentencing enhancement). Thus, as we discuss more fully
below, it was plainly erroneous to convict Lewis on Count
Three. Apart from that, however, calling § 3147 an offense
versus an enhancement may be a distinction without a real
difference in determining its meaning and application, for
those do not turn on the nomenclature. The real issue before
us is whether § 3147 can increase the statutory maximum
sentence by adding ten years to the statutory maximum for
the felony the defendant committed while on release. We
hold that it does, and that here, the 138-month sentence was
properly imposed.
We have previously found, and continue to find, that
the language of § 3147 is clear and unambiguous. See Di
Pasquale, 864 F.2d at 280 (emphasizing that § 3147’s
language is plain, and its meaning is clear). Section 3147
increases the maximum sentence allowed by statute for the
underlying offense by ten years because it requires the
sentencing judge to add a sentence of up to ten years “in
addition to the sentence prescribed for the offense.” Congress
would not have written “in addition to the sentence
prescribed” in the statute if it really meant that the § 3147
enhancement should instead be imposed as a portion of the
sentence of the underlying crime. Furthermore, by specifying
in the statute that the sentence “shall be consecutive to any
other sentence of imprisonment,” Congress intended for the
7
sentencing court to impose an extra sentence on top of the one
imposed for the underlying offense. The statute contains no
qualification or exception where adding up to ten years to the
“sentence prescribed” would exceed the statutory maximum
for the underlying offense. It is difficult for us to read this
language in any other manner; by its own terms, the provision
states that a sentence of up to ten years shall be imposed “in
addition to the sentence prescribed” for the underlying felony.
Lewis points to the legislative history as indicating that
Congress intended § 3147 to authorize adding up to ten years
to a sentence for a felony conviction, as long as the total
sentence remains within the statutory maximum for the
underlying crime. We must, however, begin with the
statutory language and presume that Congress meant exactly
what the language provides. Where the statute is clear and
unambiguous, the judicial inquiry is complete, and we will
not consider statutory purpose or legislative history. In re
Philadelphia Newspapers, LLC, 599 F.3d 298, 304 (3d Cir.
2010); see also Price v. Del. State Police Fed. Credit Union,
370 F.3d 362, 368 (3d Cir. 2004) (“We are to begin with the
text of a provision and, if its meaning is clear, end there.”).
Thus, we find no need to examine § 3147’s legislative
history. 3
3
Even if we did consider it, we would also find that the
legislative history Lewis points to provides little support for
his argument. The Senate Report states that § 3147
“prescribes a penalty in addition to any sentence ordered for
the offense for which the defendant was on release.” S. Rep.
No. 98-225, at 34 (1984), reprinted in 1984 U.S.C.C.A.N.
3182, 3217. This sentence simply confirms what the text of
the statute already provides: § 3147 allows an enhanced
8
Lewis next urges that § 3147 does not affect the
statutory maximum because it is implemented through the
Guidelines in such a way that limits the enhancement to only
a portion of the sentence for the underlying offense. He
refers to § 3C1.3 of the Guidelines, which provides, “If a
statutory sentencing enhancement under 18 U.S.C. § 3147
applies, increase the offense level by 3 levels.” The note to §
3C1.3 explains:
Under 18 U.S.C. 3147, a sentence of
imprisonment must be imposed in addition to
the sentence for the underlying offense, and the
sentence of imprisonment imposed under 18
U.S.C. 3147 must run consecutively to any
other sentence of imprisonment. Therefore, the
court, in order to comply with the statute,
should divide the sentence on the judgment
form between the sentence attributable to the
underlying offense and the sentence attributable
to the enhancement. The court will have to
ensure that the “total punishment” (i.e., the
sentence, in addition to the sentence the defendant may
receive for the underlying offense and for the offense for
which the defendant was on pretrial release. Nor does the
fact that an amendment to § 3147, which took effect after the
Guidelines were promulgated, was intended to “eliminat[e]
the mandatory nature of the penalties in favor of utilizing
sentencing guidelines” make Lewis’ point. Id. at 3369. This
only indicates that Congress wanted courts to take a more
flexible and reasoned approach to sentencing under § 3147
rather than simply applying its statutory maximum.
9
sentence for the offense committed while on
release plus the statutory sentencing
enhancement under 18 U.S.C. 3147) is in
accord with the guideline range for the offense
committed while on release, including, as in any
other case in which a Chapter Three adjustment
applies (see § 1B1.1 (Application Instructions)),
the adjustment provided by the enhancement in
this section.
U.S.S.G. § 3C1.3 app. n.1. Lewis reads this note to indicate
that the § 3147 enhancement can never result in a sentence
exceeding the statutory maximum prescribed for the
underlying offense. But it says no such thing. The
Guidelines’ explanation simply instructs the sentencing judge
as to how to factor the § 3147 enhancement into her
calculation so that she reaches a sentencing determination
which is consistent with the Guidelines and accurately
reflects compliance with § 3147. The Guidelines make no
reference to the statutory maximum sentence or any effect
thereon when applying the enhancement. Here, that statutory
maximum increased from ten years to twenty years. And the
sentence the District Court arrived at, 138 months, is below
the combined statutory maximum and is consistent with the
Guidelines’ recommendation of 140 to 175 months.
Lewis urges us to consider decisions from other courts
of appeals which, he contends, have concluded that when §
3147 is applied, the sentence can never exceed the statutory
maximum allowed for the underlying crime. However, we
view these opinions as either unpersuasive because the
language he relies on is dicta, or, actually, supportive of our
conclusion.
10
United States v. Dison, 573 F.3d 204, 206 (5th Cir.
2009) clearly involves dicta. There, the defendant pleaded
guilty to failure to appear in violation of 18 U.S.C. § 3146, an
offense which carries a five-year maximum sentence. At
sentencing, the judge applied the § 3147 enhancement
pursuant to § 3C1.3 of the Guidelines, and sentenced the
defendant to twenty-one months’ imprisonment. On appeal,
the defendant argued that the § 3147 enhancement should not
apply when the underlying crime is failure to appear, “which
by definition can only be committed while on release.” Id. at
207. The only issue before the court was whether, by its
terms, § 3147 could apply to a § 3146 conviction.
Notwithstanding the fact that the issue of serving a sentence
that exceeded the statutory maximum for § 3146 was not
before the court, after reaching its conclusion that § 3147 was
clear and did apply, the court “continue[d] briefly” and
volunteered that “regardless of the fact that § 3147 calls for
punishment ‘in addition to the sentence prescribed’ for the
underlying offense, the § 3147 enhancement can never result
in a sentence in excess of the statutory maximum prescribed
for the offense committed while on release . . . . ” Id. at 209.
This conclusion by the court was clearly dicta and, we
believe, was simply incorrect.
In United States v. Samuel, 296 F.3d 1169, 1170 (D.C.
Cir. 2002), the sole issue before the court was whether failure
to have a jury decide if the defendant was on release at the
time he committed the underlying crime – the crux of a §
3147 enhancement – ran afoul of Apprendi v. New Jersey,
530 U.S. 466 (2000), and foreclosed application of § 3147.
The court noted that because the defendant never faced a
sentence exceeding the statutory maximum for the underlying
offense, the jury need not make a finding regarding § 3147.
11
Samuel, 296 F.3d at 1175. By stating what the facts did not
present, the court in Samuel actually suggested that if the
defendant did face such a sentence, then a jury would need to
make a finding under § 3147, which is exactly what happened
here. Notably, it did not state that a jury finding would never
be required under § 3147 because it could not result in a
sentence in excess of the statutory maximum for the
underlying offense.
Similarly, Lewis’ reliance on United States v. Randall,
287 F.3d 27 (1st Cir. 2002), is misplaced. In Randall, the
defendant asserted an Apprendi violation because whether he
committed an offense while on release was not submitted to
the jury. Id. at 29. In rejecting the defendant’s claim, the
court concluded that an enhancement under § 3C1.3 (and
thus, § 3147) need not be submitted to the jury when there is
no risk that the total sentence will exceed the statutory
maximum for the underlying crime. Id. at 30. In so deciding,
the court noted that Ҥ 3147 requires that a consecutive
sentence be imposed – which could raise the maximum
sentence by as much as ten years – if a defendant is found to
have committed an offense while on pretrial release.” Id. at
29. It also observed that § 3147 “carried the potential for a
ten-year increase” in the maximum sentence. Id. Thus,
Samuel and Randall actually support the conclusion we reach
by recognizing that § 3147 can add ten years to a defendant’s
statutory maximum sentence.
The court in United States v. Confredo, 528 F.3d 143
(2d Cir. 2008), shared this view, as well. There, the
defendant raised an Apprendi challenge to the application of §
3147. In finding no merit to his contention, the court noted
that § 3147 exposes a defendant “to a higher maximum, i.e.
12
ten more years, than the highest maximum he could have
received on the offense-on-release counts.” Id. at 155.
In short, in all of the cases discussed above, the facts
were such that the defendant never really faced a risk of a
sentence which exceeded the statutory maximum for the
underlying crime. In this case, Lewis does. Given these
circumstances, we conclude that the statutory language of §
3147 is controlling and hold that, according to its plain
language, § 3147 can increase the statutory maximum
sentence for the underlying felony offense committed while
on pretrial release by ten years.
We noted above that the nomenclature – whether a
separate crime versus a sentencing enhancement – makes
little difference in terms of our interpretation of § 3147.
However, one distinction is clear. A jury must decide
whether the elements of a separate crime have been proven
beyond a reasonable doubt, and the jury did so find here in
convicting Lewis of Count Three. With the usual sentencing
enhancement that is not the case: the court is free to enhance
the sentence without any findings from the jury. However,
where the enhancement would result in a sentence that
exceeds the statutory maximum for the crime, as here, it is not
merely the “usual” enhancement. Instead, as Apprendi
teaches, when a sentencing enhancement would increase the
maximum sentence to which a defendant is to be exposed, it
must be submitted to the jury and its elements proven beyond
a reasonable doubt. See Apprendi, 530 U.S. at 490 (“Other
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable
doubt.”). The error in treating § 3147 as an offense, here,
13
turned out to be a wise move from an Apprendi standpoint, as
the jury found that the elements of § 3147 had been proven
beyond a reasonable doubt, thus allowing the judge to impose
a sentence that exceeded the statutory maximum sentence for
the underlying crime. 4 Therefore, the District Court
committed no error in sentencing Lewis to 138 months’
imprisonment.
As we noted above, however, because § 3147 is not a
separate offense, but a sentencing enhancement, Lewis’
conviction on Count Three was plainly erroneous and cannot
stand. See Di Pasquale, 864 F.2d at 280. Furthermore,
Lewis’ conviction on Count Three affected his substantial
rights. It is of no matter that the conviction on Count Three
did not affect the Guidelines calculation; a separate
conviction for a crime that does not exist “has potential
adverse collateral consequences that may not be ignored.”
Ball v. United States, 470 U.S. 856, 865 (1985). Such
collateral consequences may include an increased sentence
4
We have previously suggested ways in which the district
courts can satisfy the requirements of Apprendi. “Since
Apprendi, federal and state courts have relied upon jury
interrogatories or relied upon a bifurcated trial to establish
facts relevant to certain sentencing enhancements under the
advisory Guidelines.” United States v. Grier, 475 F.3d 556,
612 n.58 (3d Cir. 2007). These methods do not call for the
enhancement to be charged in the indictment. However, as
counsel for the government acknowledged at argument in this
case, a common method for putting a defendant on notice of
his exposure to an enhancement is to note the potential
enhancement in the count or counts to which it may apply,
here, the underlying crime.
14
under a recidivist statute, additional societal stigma, and, at
the very least, an additional $100 special assessment. See id.;
see also Tann, 577 F.3d at 539 (viewing an extra $100 special
assessment as an adverse consequence of an unlawful
conviction); United States v. Miller, 527 F.3d 54, 73-74 (3d
Cir. 2008) (same).
Furthermore, the conviction on Count Three “seriously
affected the fairness, integrity, or public reputation of judicial
proceedings,” since, as we concluded in Tann, any additional
unauthorized conviction and its accompanying special
assessment, coupled with potential adverse collateral
consequences, seriously calls into question the fairness and
integrity of judicial proceedings. Tann, 577 F.3d at 543.
We will remand the case to the District Court with
instructions to vacate the conviction and the $100 special
assessment on Count Three, and to revise the judgment
accordingly to reflect two consecutive terms of imprisonment:
a term for Count Two and a term pursuant to § 3147. If the
District Court concludes that it would sentence Lewis to a
different term of imprisonment in light of our holding –
namely, that his conviction should have been for one crime
rather than two, and that § 3147 should be treated as a
sentencing enhancement, not a separate offense – it may do
so. 5 If not, his sentence of 138 months’ imprisonment shall
5
The conviction on Count Three did not, in and of itself, have
an impact on the Guidelines’ calculation because the District
Court started with the base offense level applicable only to
Count Two. Because § 3147 applied, it then added three
levels pursuant to § 3C1.3. Thus, the District Court’s
calculation is consistent with treating § 3147 as an
15
stand. In all other respects, we will affirm the judgment of
the District Court.
enhancement rather than a separate offense. Nonetheless, if
the District Court, in deciding the proper sentence, was
impacted by the fact that Lewis was convicted of two counts
rather than one, and now wishes to impose a different term of
imprisonment, we would permit this on remand.
16