February 12, 2016
Appeals from the United States District Court for the
Southern District of Illinois. Nos. 13 CR 30053 and 14 CR
30107 - Michael J. Reagan, Judge.
Wood, Chief Judge, Rovner, Circuit Judge, and Blakey,
District Judge. [*]
Blakey, District Judge.
our sister courts have held that 18 U.S.C. §3147,
through §3C1.3 of the Sentencing Guidelines, can enhance
a sentence for the crime of failing to appear under 18 U.S.C.
§3146. United States v. Duong, 665 F.3d 364
(1st Cir. 2012); United States v. Fitzgerald, 435
F.3d 484 (4th Cir. 2006); United States v. Dison,
573 F.3d 204 (5th Cir. 2009); United States v.
Benson, 134 F.3d 787 (6th Cir. 1998); and United
States v. Rosas, 615 F.3d 1058 (9th Cir. 2010). Two
others have reached the same conclusion, albeit in
unpublished decisions. United States v. Gause, 536
Fed.Appx. 234 (3d Cir. 2013) (unpublished); United States
v. Clemendor, 237 Fed.Appx. 473 (11th Cir. 2007)
(unpublished). None has reached a different conclusion.
Against this consensus, Appellant Destry J. Marcotte seeks to
chart new territory in the Seventh Circuit on an issue of
first impression here. We decline that invitation and AFFIRM
the district court's sentence.
March 19, 2013, a Federal Grand Jury returned a five-count
Indictment charging Marcotte with: (1) four counts of making
a false claim for federal tax refunds, in violation of 18
U.S.C. §287 (Counts 1 to 4); and (2) one count of
falsely pretending to be an officer of the United States to
demand a thing of value, in violation of 18 U.S.C. §912
(Count 5). On August 26, 2013, the district court, acting on
the Government's motion, dismissed Count 5 of the
fraud case went to trial and, on October 8, 2013, the jury
returned a guilty verdict against Marcotte on Counts 1 to 4.
The district court set the sentencing hearing for January 17,
2014, and later reset the hearing for May 1, 2014. In the
interim, on November 7, 2013, the district court allowed
Marcotte to be released on home confinement with electronic
monitoring pending sentencing.
Marcotte failed to show for his May 1, 2014 sentencing
hearing, the district court issued a warrant for his arrest.
On May 21, 2014, Marcotte was indicted for failure to appear
for sentencing, in violation of 18 U.S.C. §3146(a)(1).
Section 3146(a)(1) punishes the failure to appear before a
court as required by a condition of release.
U.S. Marshals Service arrested Marcotte on September 22,
2014. On October 30, 2014, Marcotte pled guilty to the
failure to appear charge. The district court scheduled the
sentencing hearing for February 4, 2015, on both the tax
fraud and failure to appear cases.
November 17, 2014, the probation office submitted an initial
presentence report ("PSR") addressing
Marcotte's two criminal cases. The initial PSR, in
relevant part, recommended a 2-level enhancement under
§3C1.1 of the Sentencing Guidelines, and a 3-level
enhancement under §3C1.3 of the Sentencing Guidelines.
On December 31, 2014, Marcotte filed his objections to the
initial PSR, contesting the 3-level enhancement under
3C1.1 requires a 2-level enhancement when a defendant
"willfully obstructed or impeded … [the]
sentencing of the instant offense of conviction."
Application Note 4 to §3C1.1 of the Sentencing
Guidelines provides examples of covered conduct, including
"willfully failing to appear, as ordered, for a judicial
proceeding." U.S.S.G. §3C1.1 cmt. 4(E).
Section 3C1.3 requires a 3-level enhancement for violations
of 18 U.S.C. §3147. Section 3C1.3 states in full:
If a statutory sentencing enhancement under 18 U.S.C.
§3147 applies, increase the offense level by 3 levels.
§3C1.3. Title 18 U.S.C. §3147, in turn, provides
that a defendant convicted of an offense while released shall
be subject to an additional punishment of no ...