                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4996


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KARYNA YOLANDA ORDONEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:07-cr-00056-JBF)


Argued:   October 30, 2008               Decided:   January 9, 2009


Before MICHAEL and AGEE, Circuit Judges, and Martin K.
REIDINGER, United States District Judge for the Western District
of North Carolina, sitting by designation.


Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.


ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.     Stephen Westley Haynie,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.    ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender,   Keith  Loren   Kimball,   Assistant  Federal    Public
Defender, Norfolk, Virginia, for Appellant.     Chuck Rosenberg,
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                             2
PER CURIAM:


                                             I.

      Karyna      Yolanda      Ordonez       pled   guilty     to   two    counts   of

violating 18 U.S.C. § 1029(a)(2) (2008) and was sentenced to a

term of 21 months’ imprisonment by the United States District

Court for the Eastern District of Virginia.                     That court granted

her request to self-surrender and ordered that Ordonez surrender

on   December     18,   2006    for   service       of   her   sentence.      Ordonez

failed to do so and was later arrested in New York.

      Upon being indicted for violating 18 U.S.C. § 3146(a)(2)

(2008) (failure "to surrender for service of sentence pursuant

to   a    court   order")      and    18     U.S.C.      §   3147   (2008)   (offense

committed while on release), Ordonez pled guilty, without a plea

agreement, on June 6, 2007.

      In preparing the presentence report, the probation officer

relied on U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2J1.6

(2007) 1 to assess an offense level of 9 which, with a criminal

history category of IV, resulted in a Guidelines range of 12 to

18 months.        U.S.S.G. § 2J1.6, entitled “Failure to Appear by

Defendant,” is the Guidelines provision applicable to violations


      1
       This opinion references both statutes and provisions of
the United States Sentencing Guidelines.    To avoid confusion,
references to statutes will be by section number while
references to provisions of the Sentencing Guidelines will be by
U.S.S.G. and the relevant section number.


                                         3
of § 3146. The Government objected to the presentence report by

contending that Ordonez should receive a three-level enhancement

of    the    offense    level    pursuant    to   U.S.S.G.     §   3C1.3.      The

Government argued that § 3147 “plainly applies,” and cited this

Court's decision in United States v. Fitzgerald, 435 F.3d 484

(4th Cir. 2006) as controlling authority for imposition of the

enhancement. Ordonez objected to the proposed enhancement on the

basis of Application Note 2 to § 2J1.6 ("Application Note 2"),

which provides in relevant part: “[f]or offenses covered under

this    section,     Chapter     Three,    Part   C   (Obstruction)     does   not

apply,      unless   the   defendant      obstructed    the   investigation     or

trial of the failure to appear count.”                 U.S.S.G. § 2J1.6 n.2.

U.S.S.G § 3C1.3 is contained in Chapter Three, Part C of the

Sentencing Guidelines.

       In the final presentence report submitted to the district

court, the probation officer adopted the Government’s position

and    added   the     U.S.S.G   § 3C1.3     enhancement      to   determine   the

applicable Guideline range.               Based on this change, an offense

level of 12 was attributed to Ordonez, which resulted in an

increased Guidelines range of 21 to 27 months.                      The district

court determined the U.S.S.G. § 3C1.3 enhancement should apply

because “even though there is an application note in a different

place, that the Fitzgerald case would still apply.”                 J.A. 50.




                                     4
       The       district      court   sentenced         Ordonez    to   a   term    of       21

months’ imprisonment, three months longer than the high point of

her Guidelines range without the U.S.S.G. § 3C1.3 enhancement.

In addition, the court imposed a three year term of supervised

release.          Ordonez requested that the sentencing order specify

that       the    term    of    supervised        release     run    concurrent          to    a

previously-imposed term, but the district court refused to do so

and indicated from the bench that the term would run consecutive

to any previously imposed term of supervised release.                               Ordonez

timely      filed    an     appeal     of   the       sentencing    order    and    we    have

jurisdiction pursuant to 28 U.S.C. § 1291 (2008).



                                                II.

       Ordonez presents two issues on appeal. 2                     First, she asserts

the district court erred when it ordered the three year term of

supervised release to run consecutive to a previously imposed

term of supervised release instead of concurrently.                           Second, she


       2
       Ordonez raises a third issue by asserting the sentencing
enhancement under § 3147 cannot apply in sentencing upon
conviction of violating § 3146.         That issue is directly
controlled by the decision of this Court in Fitzgerald, which
this panel has no authority to revisit.       “[A] panel of this
court cannot overrule, explicitly or implicitly, the precedent
set by a prior panel of this court. Only the Supreme Court or
this court sitting en banc can do that.”     Scotts Co. v. United
Indus. Corp., 315 F.3d 264, 272 n.2 (4th Cir. 2002) (quoting
Mentavlos v. Anderson, 249 F.3d 301, 312 n.4 (4th Cir. 2001)).
Accordingly, we do not address this issue further.



                                            5
argues    the        district      court     erred       in     its     calculation    of     the

Guidelines range by applying the enhancement under U.S.S.G. §

3C1.3.    We address each issue in turn.



                            A. Term of Supervised Release

     Ordonez and the Government agree that the district court

erred     in        ordering      the     term     of     supervised        release    to     run

consecutive to the previously-imposed term of supervised release

instead of concurrently.                  We agree the district court erred in

doing so.

     “‘In       a     statutory        construction        case,      the    beginning      point

must be the language of the statute, and when a statute speaks

with clarity to an issue[,] judicial inquiry into the statute's

meaning,       in     all   but    the     most     extraordinary           circumstance,      is

finished.’”            Fitzgerald,        435    F.3d     at    486     (quoting     Estate    of

Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992)).                                     18

U.S.C. § 3624(e) provides that a “term of supervised release . .

. runs concurrently with any Federal, State, or local term of .

. . supervised release . . . for another offense to which the

person     is        subject      or     becomes        subject       during   the    term     of

supervised release.”               The language of the statute unequivocally

states    that        multiple     terms     of     supervised          release,     even    when

imposed        at     different         times,     are     to     run    concurrently,        not

consecutively.


                                             6
       In the case at bar, the district court's written sentencing

order did not specifically state that the term of supervised

release for the § 3146 conviction would run consecutive to or

concurrent     with    any    previously-imposed         term.      However,      the

record     shows   that   the    district     court   explicitly     refused      the

defendant's oral request at the sentencing hearing for the term

of    supervised    release     to    run   concurrent    with    the   previously

imposed term.         While a court speaks through its judgments and

orders, Murdaugh Volkswagen, Inc. v. First Nat’l Bank, 741 F.2d

41, 44 (4th Cir. 1984), in criminal cases the general rule is

that the oral pronouncement of the sentence governs.                       Rakes v.

United States, 309 F.2d 686, 687-88 (4th Cir. 1962).                       Thus, we

view the district court's imposition of the term of supervised

release as running consecutive to any other term by virtue of

the bench ruling.

       In light of the plain language of § 3624(e), that ruling

was   in   error   because      the   statute   mandates    that     the   term    of

supervised release for the present offense run concurrent with

the term imposed for any previous offense.                       Accordingly, the

judgment of the district court imposing a consecutive term of

supervised release is reversed and the case remanded for the

entry of a corrected order in conformity with § 3624(e).




                                       7
                       B. U.S.S.G. § 3C1.3 Enhancement

       “We    review    the    district           court's          interpretation             of    the

applicable      sentencing          guidelines           de    novo        and        its     factual

findings for clear error.”                    United States v. Quinn, 359 F.3d

666, 679 (4th Cir. 2004).                Our interpretation of a statute, as a

matter of law, is de novo. United States v. NJB, 104 F.3d 630,

632-33 (4th Cir. 1997).

       In this case, no issue is raised as to the calculation

under U.S.S.G. § 2J1.6, which yielded a Guidelines range of 12

to 18 months.          The issue before us comes from the addition of

the three-level enhancement under U.S.S.G. § 3C1.3, which set

the Guidelines range at 21 to 27 months.                                 Ordonez contends the

district      court    erred        in    doing         so     because,          in     her        view,

Application Note 2 bars the enhancement.

       We    begin    with    the    terms        of     the       applicable         statute,       18

U.S.C. § 3147, which plainly states that “[a] person convicted

of an offense committed while released . . . shall be sentenced,

in addition to the sentence prescribed for the offense to (1) a

term   of     imprisonment      .     .   .       .”         The    applicable          Sentencing

Guideline to implement the statutory sentencing requirement of §

3147   was     formerly      U.S.S.G.         §    2J1.7,          but    in   2006         the    U.S.

Sentencing      Commission      amended            the       Guidelines          to     move       this

provision to U.S.S.G. § 3C1.3.                    See     U.S.S.G. App. C, Amend. 684




                                          8
(effective       November      1,       2006).        As       noted     earlier,       U.S.S.G.

§ 3C1.3 is contained in Chapter Three, Part C of the Guidelines.

       Application Note 2 provides that “[f]or offenses covered

under this section, [a failure to appear conviction] Chapter

Three, Part C (Obstruction) does not apply, unless the defendant

obstructed the investigation or trial of the failure to appear

count.”      Ordonez      contends         Application          Note        2,    on   its    face,

limits the application of a Chapter Three, Part C adjustment,

including     U.S.S.G.         §    3C1.3,       to    those       instances           when     the

defendant obstructed the investigation or trial of the failure

to appear count.          She argues that the fortuitous move of the §

3147 enhancement under the Guidelines from U.S.S.G. § 2J1.7 to §

3C1.3 now bars that enhancement in her case.                           We disagree.

       In Fitzgerald, this Court held that the plain language of §

3147    requires        the    imposition         of       a    consecutive            additional

sentence     for    any       crime      committed         while       on        release.      See

Fitzgerald,      435    F.3d       at    486   (“Section          3147      plainly     applies,

without exception, to offenses committed while on release under

Chapter    207     of    Title      18.”).        As       this    Court          recognized     in

Fitzgerald, § 3147 applies even in a situation where having been

on release was a necessary component of the crime committed.

The defendant in Fitzgerald, for instance, failed to appear for

his sentencing.          He could not have failed to appear had he not




                                           9
been    on   release,     yet    §    3147    was    held       to   apply    where   the

underlying crime was a violation of § 3146.                     See id.

       In    Fitzgerald,        the    defendant       did       not    obstruct      the

investigation      or    the    trial,       yet    this    Court      held   that    the

sentencing enhancement applied because § 3147 dictated that it

must.       Section 3147 has not changed in any respect since our

decision in Fitzgerald.           To adopt the view propounded by Ordonez

would necessarily mean that a defendant in a position identical

to that of the defendant in Fitzgerald would now not be subject

to the same statutory enhancement.

       The    Supreme    Court        has    held    that       “commentary     in    the

Guidelines Manual that interprets or explains a guideline is

authoritative unless it violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous reading

of, that guideline.” Stinson v. United States, 508 U.S. 36, 38

(1993)      (emphasis    added).        Indeed,      the    Sentencing        Commission

explicitly      recognized      this    limitation         on    the   effect    of   the

Application Notes by incorporating this language from Stinson

into its commentary to U.S.S.G. § 1B1.7, entitled “Significance

of Commentary.”         Application Note 2 is simply inconsistent with

§ 3147 because it would limit the statutory enhancement only to

cases where there is obstruction of the investigation or the

trial.




                                        10
     The plain language of new Guideline § 3C1.3 dictates that a

three-level         enhancement        shall    be    added     “[i]f     a     statutory

sentencing enhancement under 18 U.S.C. § 3147 applies.” U.S.S.G.

§ 3C1.3       (emphasis      added).      Application        Note    2   is    thus   also

inconsistent with the plain language of U.S.S.G. § 3C1.3 in that

there is nothing in that Guideline indicating that it is to be

limited to only certain offenses committed while on release.

Thus, to read Application Note 2 as limiting the application of

§ 3C1.3 would be inconsistent with the plain terms of § 3147 and

the Guideline.          Accordingly, Application Note 2 must yield to

the statute and U.S.S.G. § 3C1.3.

     There is nothing in Amendment 684, which moved U.S.S.G. §

2J1.7    to    §    3C1.3,    indicating       that   the     Sentencing       Commission

intended to limit U.S.S.G. § 3C1.3 by the previously-existing 3

Application Note 2 to § 2J1.6.                  In adopting Amendment 684, the

Sentencing         Commission   provided       a   “Reason     for   Amendment”       that

reads, in pertinent part:

     [T]he amendment creates a new guideline at § 3C1.3
     (Commission of Offense While on Release), which
     provides a three-level adjustment in cases in which
     the statutory sentencing enhancement at 18 U.S.C. §
     3147 (Penalty for an offense committed while on
     release) applies.  The Amendment also deletes § 2J1.7
     (Commission of Offense While on Release), the Chapter
     Two guideline to which the statutory enhancement at 18

     3
       The Application Note was adopted                         with     the    original
Sentencing Guidelines, effective in 1987.



                                         11
       U.S.C. § 3147 had been referenced prior to the
       amendment.    Despite its reference in Appendix A
       (Statutory Index), 18 U.S.C. §3147 is not an offense
       of conviction and thus does not require reference in
       Appendix A.   Creating a Chapter Three adjustment for
       18 U.S.C. § 3147 cases ensures the enhancement is not
       overlooked and is consistent with other adjustments in
       Chapter Three, all of which apply to a broad range of
       offenses.

United States Sentencing Guidelines Manual, Supp. App. C at 158

(2006) (Amendment 684) (emphasis added).                            This passage reflects

no intent on the part of the Sentencing Commission to limit the

application       of    the       Guideline         implementing       §   3147.        On    the

contrary,       by     moving       this      Guideline        to    Chapter      Three,      the

Commission intended to insure that a court would not “miss” the

three-level enhancement for offenses committed while on release,

such    as     Ordonez’s      failure         to    surrender        for   her    service      of

sentence.        We    note       that     the     Eleventh      Circuit    has    reached      a

similar conclusion in United States v. Clemendor, 237 Fed. Appx.

473    (11th    Cir.    2007)       (unpublished),             regarding    the    effect      of

Amendment       684    on     a    §     3147      enhancement        in   sentencing        upon

conviction of violating § 3146: “Indeed, there is no indication,

express or implied, that the amendment was made to affect § 3146

cases.”      Id. at 480.

       In    summary,       this       Court       held   in    Fitzgerald       that   § 3147

requires a sentencing enhancement in all cases where the offense

was     committed           while        on        release,         “without      exception.”

Fitzgerald, 435 F.3d at 486.                     Guideline § 3C1.3 is the Guideline


                                              12
that has been adopted to implement that mandatory sentencing

enhancement.     Any Guidelines calculation that fails to include

this    enhancement     where     the    offense       was   committed   while    on

release    would,     therefore,    be       in   error.     Application   Note    2

cannot      override      these         clear        statutory     and   Guideline

requirements.       For these reasons, we hold that the three-level

enhancement of U.S.S.G. § 3C1.3 was correctly applied in this

case.



                                         III.

       Accordingly, we affirm the district court’s calculation of

the      applicable     Guideline            range     and   the     sentence     of

incarceration, but reverse and remand the case for entry of a

proper judgment regarding the term of supervised release.



                                                                 AFFIRMED IN PART,
                                                                 REVERSED IN PART,
                                                                      AND REMANDED




                                        13
