United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
to sentencing, I require input from the government and from
Mr. Peithman regarding the jury's finding, made with
respect to count 14, that Mr. Peithman committed one or more
of the offenses charged in counts 1 and 4-13 while he was
serving a term of supervised release. The jury also found Mr.
Peithman guilty of the offenses charged in counts 8, 9, 10,
11, and 12, but not guilty on the remaining counts
(i.e., counts 1, 4-7, and 13).
charged in the indictment as a separate offense, and
submitted to the jury for a finding of guilt, it now appears
that a violation of 18 U.S.C. § 3147 does not
constitute a separate offense, but rather, results in an
enhanced sentence for the offenses committed while the
defendant was on supervised release. The Eighth Circuit has so
held. See United States v. Feldhacker, 849 F.2d 293,
299 (8th Cir. 1988) (“[W]e now hold that 18 U.S.C.
§ 3147 . . . provides for an enhancement of sentence,
rather than creating a separate offense that must be
separately charged by the grand jury and found by the jury
beyond a reasonable doubt.”); United States v.
Sink, 851 F.2d 1120, 1121 (8th Cir. 1988) (“In
Feldhacker, this Court held that section
3147 merely enhances a sentence imposed for an
underlying offense.”); United States v.
Lincoln, 956 F.2d 1465, 1473 (8th Cir. 1992)
(“§ 3147 does not create an offense, but merely
requires an addition to the sentence for an offense the
defendant committed on release.”); cf. United
States v. Gillon, 348 F.3d 755, 757-58 (8th Cir. 2003)
(recognizing Feldhacker holding while assuming,
without deciding, that indictment should include the factual
basis for a § 3147 enhancement).
3C1.3 of the Sentencing Guidelines implements §
3147's sentencing enhancement. It states:
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. The application note for § 3C1.3
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 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. For example, if the applicable adjusted
guideline range is 30-37 months and the court determines a
“total punishment” of 36 months is appropriate, a
sentence of 30 months for the underlying offense plus 6
months under 18 U.S.C. 3147 would satisfy this requirement.
Similarly, if the applicable adjusted guideline range is
30-37 months and the court determines a “total
punishment” of 30 months is appropriate, a sentence of
24 months for the underlying offense plus 6 months under 18
U.S.C. 3147 would satisfy this requirement.
(Italics by Kopf.)
Eighth Circuit has held that the three-level increase under
section 3C1.3 is to be applied before determining
the combined offense level under section 3D1.4.
See United States v. Wright, 401 F.
App'x 168, 170 (8th Cir. 2010) (“The Application
Instructions to the guidelines indicate that adjustments
under Part C of Chapter 3 are to be applied before
adjustments to the offense level under Part D of Chapter
Eighth Circuit has also held that because the exclusionary
provision of U.S.S.G. § 3D1.1(b) (1) “only applies
to statutory punishments for specific criminal acts, . . . it
does not bar the application of grouping rules to an offense
subject to 18 U.S.C. § 3147 (1988).”
Lincoln, 956 F.2d at 1470. The Court in
Lincoln further indicated that when a defendant is
sentenced for multiple offenses committed on release,
“the guidelines require that consolidated sentences
must run concurrently except for enhancements under [former]
U.S.S.G. § 2J1.7 and for any sentence that must be
consecutively imposed in order to achieve the guidelines'
total punishment figure.” 956 F.2d at 1474 & n. 8.
“ Because an enhancement for an offense committed on
release ‘shall be consecutive to any other sentence of
imprisonment, ' 18 U.S.C. § 3147 (1988), a defendant
may not be permitted to serve the term of such an enhancement
concurrently to any other term of imprisonment. Thus, for
example, a defendant who is convicted of three offenses
committed on release that are combined under one of the
[grouping] rules may serve all three sentences concurrently,
but must serve consecutively each of the three
be clear, Mr. Peithman has suffered no prejudice even if a
violation of 18 U.S.C. § 3147 is not itself a crime.
This is true for two reasons. First, it was part of
Peithman's defense that because he was on supervised
release, he distanced himself from running Island Smokes and
Dirt Cheap. Second, since § 3147 is a sentence
enhancement, under Apprendi and Booker (and
their progeny) it may have been necessary to put this matter
to a jury and require the government to prove the violation
beyond a reasonable doubt.
the foregoing in mind, I would like counsel for the
government and for Mr. Peithman to simultaneously brief the
issues of (1) whether the verdict on Count 14 should be
vacated with the understanding that the enhancement under
§ 3147 has been proven beyond a reasonable doubt
according to the jury; and (2) how 18 U.S.C. § 3147 and
the Sentencing Guidelines should be applied with respect to
the convictions for counts 8, 9, 10, 11, and 12.
or before April 14, 2017, the government and Mr. Peithman
shall file briefs ...