Tuesday, January 17, 2006

2J1.7 Enhancement in Failure to Appear Cases OK'd; Does Not Violate Double Jeopardy

US v. Fitzgerald: Fitzgerald pleaded guilty to mail fraud and wire fraud and was released on bail pending sentencing. He fled prior to sentencing and was arrested and charged with failure to appear under 18 USC 3146. Fitzgerald pleaded guilty to that offense and proceeded to sentencing. The PSR recommended that Fitzgerald's offense level be increased three levels under USSG 2J1.7 and 18 USC 3147 for committing another offense while on release. Fitzgerald objected, arguing that the enhancement amounted to double punishment and violated the rule of lenity. The district court disagreed, applied the enhancement, and imposed a sentence of 27 months, to be served consecutively to the sentence imposed for the fraud charges.

The Fourth Circuit affirmed, 2-1. Noting that this was a question of first impression in the circuit, the court looked to the Sixth Circuit's decision in US v. Benson, 134 F.3d 787 (1998), for guidance. The court followed Benson's logic and concluded that the statutory language at issue was not ambiguous and therefore the rule of lenity was not applicable. The court also rejected Fitzgerald's Double Jeopardy argument, holding that the Supreme Court has never applied Double Jeopardy guarantees to sentencing proceedings, relying on Monge v. California, 524 U.S. 721 (1998).

Judge King dissented, arguing that the majority's Double Jeopardy argument is contrary to the Supreme Court's decision in Simpson v. US, 435 U.S. 6 (1978), and that the statutory language at issue is ambiguous and requires application of the rule of lenity. As Judge King put it, "[t]he end result in this scenario simply makes no sense."

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