                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-29-2000

United States v. Hecht
Precedential or Non-Precedential:

Docket 99-1543




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Recommended Citation
"United States v. Hecht" (2000). 2000 Decisions. Paper 41.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/41


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Filed February 29, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1543

UNITED STATES OF AMERICA

v.

BARRY HECHT,
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(Dist. Court No. 98-cr-00646)
District Court Judge: Jay C. Waldman

Submitted Under Third Circuit LAR 34.1(a)
January 11, 2000

Before: BECKER, Chief Judge, and ALITO and BARRY,
Circuit Judges.

(Opinion Filed: February 29, 2000)

       BURTON A. ROSE
       Washington West Building
       235 South 8th Street
       Philadelphia, PA 19106-3519

       Counsel for Appellant
       MICHAEL R. STILES
       United States Attorney
       WALTER S. BATTY, JR.
       Chief of Appeals
       KATHERINE L. ECHTERNACH
       Assistant United States Attorney
       Suite 1250
       One Independence Mall
       615 Chestnut Street
       Philadelphia, PA 19106

       Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

Barry Hecht appeals his sentence, contending that the
District Court erred in enhancing his sentence on the
ground that his crime was committed while on release from
another federal offense. Hecht argues that the enhancement
was improper because he was not notified of the possibility
of enhancement at the time of his release on thefirst
offense. We hold that pre-release notice of the possibility of
enhancement is not required, and we accordingly affirm.

I.

From 1988 to 1989, Hecht ran a fraudulent gourmet
cookie distributorship scheme, using false references and
making misrepresentations to buyers to induce them to
invest in the distributorships. In July 1994, he pled guilty
to federal charges of conspiracy and wire fraud arising out
of the scam. After entering his plea, Hecht was released on
bail pending sentencing. He was sentenced to 18 months of
imprisonment on October 25, 1994, and began serving his
sentence on November 28, 1994.

Unbeknownst to the authorities, from 1993 to 1995
Hecht was also running a fraudulent sports merchandise
distributorship operation called Pacesetters of North
America, Inc. ("Pacesetters"). He made misrepresentations

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to potential purchasers about Pacesetters' history and
about the value of the merchandise they would receive.
Pacesetters took in approximately $388,500 over the course
of its operations and caused a loss of $321,000 to its
victims.

In 1998, Hecht pled guilty to one count of criminal
conspiracy to commit wire fraud and mail fraud, in
violation of 18 U.S.C. S 371, in connection with the
Pacesetters scheme. At sentencing, the District Court
applied a three-level enhancement under U.S.S.G.S 2J1.71
because Hecht had committed the offense while on pretrial
release for a prior federal offense--viz., the cookie scam.
The resulting sentencing range was 37 to 46 months; the
District Court sentenced Hecht to the bottom of the range.
Hecht appeals the enhancement.

II.

Hecht grounds his challenge on the Commentary to
S 2J1.7, which states that "[a]n enhancement . . . may be
imposed only after sufficient notice to the defendant by the
government or the court." U.S.S.G. S 2J1.7, comment.
(backg'd). Hecht claims that the enhancement may not be
applied because he was not given notice, at the beginning
of his pretrial release in the prior case, that the commission
of a new federal offense during release would subject him to
an enhanced sentence in the second case. We reject this
argument.

Guideline S 2J1.7 implements 18 U.S.C. S 3147, which
provides in relevant part that "[a] person convicted of an
offense while released under this chapter shall be
sentenced, in addition to the sentence prescribed for the
offense to . . . a term of imprisonment of not more than ten
years." The Guideline provides for a three-level
enhancement for cases within the ambit of S 3147.
_________________________________________________________________

1. The Guideline provides that "[i]f an enhancement under 18 U.S.C.
S 3147 applies, add 3 levels to the offense level for the offense
committed
while on release as if this section were a specific offense characteristic
contained in the offense guideline for the offense committed while on
release." U.S.S.G. S 2J1.7.

                                3
Neither the statute nor the Guideline itself contains any
notice requirement. Indeed, in United States v. DiPasquale,
864 F.2d 271, 280 (3d Cir. 1988), this Court squarely held
that it could not "read the language or the legislative
history of S 3147 as mandating explicit notice to a
defendant of the possibility for sentence enhancement as a
precondition to sentence." Rather, S 3147"is a self-
executing and mandatory provision of law" that applies
even in the absence of pre-release notice. Id . at 281
(quoting United States v. Feldhacker, 849 F.2d 293, 299
(8th Cir. 1988)). Accord United States v. Lewis , 991 F.3d
322, 323-24 (6th Cir. 1993).

The reference to "notice" in the Commentary cannot be
read to overrule the unambiguous text of the statute and
the Guideline, or to modify their mandatory nature. As the
DiPasquale Court noted, Congress, in enacting the
mandatory language of S 3147, could not have meant "that
persons who commit the very crimes that the act intended
to deter, should avoid punishment for those crimes because
of the judicial officer's failure explicitly to remind the
defendant of the consequences of his or her acts" before
release. DiPasquale, 864 F.2d at 281.

We read the Commentary to mandate, not pre-release
notice in the first case, but simply pre-sentencing notice in
the second case. This reading accords with DiPasquale and
is bolstered by the history of the Commentary. Before its
amendment in 1989, the Commentary to S 2J1.7 provided
that "[a]n enhancement under 18 U.S.C. S 3147 may be
imposed only upon application of the government; it cannot
be imposed on the court's own motion." See United States
v. Vasquez, 113 F.3d 383, 388 (2d Cir. 1997). The note to
the 1989 amendment stated that the amendment merely
"corrects the description in the Background Commentary of
the operation of the statute to which this guideline applies."
U.S.S.G. App. C, amend. 431. This note suggests that the
amendment's language simply clarified that a defendant
should be provided pre-sentencing notice of the possibility
of an enhancement; pre-release notice is nowhere
mentioned. See Vasquez, 113 F.3d at 388.

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III.

Hecht does not deny that he received pre-sentence notice
of the potential enhancement both in his Presentence
Report and during plea negotiations. Accordingly, we affirm.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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