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United States v. Marcotte

United States Court of Appeals, Seventh Circuit

June 16, 2016

United States of America, Plaintiff-Appellee,
v.
Destry J. Marcotte, Defendant-Appellant.

          Argued 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.

          Before Wood, Chief Judge, Rovner, Circuit Judge, and Blakey, District Judge. [*]

          Blakey, District Judge.

         Five of 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 Two others have reached the same conclusion, albeit in unpublished decisions. United States v. Gause, 536 Fed.Appx. 234 (3d Cir. 2013) (unpublished); United States v. Clemendor, 237 Fed.Appx. 473 (11th Cir. 2007) (unpublished).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.

         I

         On 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 Indictment.

         The tax 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.

         When 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.

         The 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.

         On 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 §3C1.3.

         Section 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).

         Additionally, 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.

         U.S.S.G. §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 ...


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