           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0035P (6th Cir.)
                    File Name: 00a0035p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                             ;
                              
 UNITED STATES OF AMERICA,
                              
           Plaintiff-Appellee,
                              
                              
                                            No. 98-5447
          v.
                              
                               >
 DAVID W. LANIER,             
        Defendant-Appellant. 
                             1

           Appeal from the United States District Court
        for the Western District of Tennessee at Memphis.
          No. 97-20223—Jerome Turner, District Judge.
                  Argued: September 15, 1999
              Decided and Filed: January 24, 2000
Before: SUHRHEINRICH, COLE, and GIBSON,* Circuit
                   Judges.




    *
    The Honorable John R. Gibson, Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.

                                 1
2    United States v. Lanier                      No. 98-5447      No. 98-5447                      United States v. Lanier     11

                    _________________                              part of the en banc court considering the motion.” United
                                                                   States v. Lanier, 120 F.3d 640, 644 (6th Cir. 1997) (en banc)
                         COUNSEL                                   (Boggs, J., concurring). Accordingly, this matter has been
                                                                   settled and we thus adhere to our original ruling: the en banc
ARGUED: Stephen B. Shankman, OFFICE OF THE                         panel that vacated Lanier’s release order had jurisdiction to do
FEDERAL PUBLIC DEFENDER FOR THE WESTERN                            so.
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Stephen C. Parker, OFFICE OF THE U.S.                                                 IV.
ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Stephen B. Shankman, OFFICE OF THE                         For the foregoing reasons, we AFFIRM Lanier’s
FEDERAL PUBLIC DEFENDER FOR THE WESTERN                            conviction and sentence.
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Stephen C. Parker, OFFICE OF THE U.S.
ATTORNEY, Memphis, Tennessee, for Appellee. David W.
Lanier, Lexington, Kentucky, pro se.
                    _________________
                        OPINION
                    _________________
  R. GUY COLE, JR., Circuit Judge. In December 1997,
David W. Lanier entered a plea of guilty to one count of
failure to appear, in violation of 18 U.S.C. § 3146. The
district court sentenced him to twelve months’ imprisonment,
applying a three-level enhancement to his sentence pursuant
to U.S.S.G. § 2J1.7, which applies to a defendant who
commits an offense while on release. Lanier appeals the
application of the enhancement, arguing that it constitutes
impermissible double counting. In pro se briefing, Lanier
also attacks his conviction, arguing that the en banc court
lacked jurisdiction to vacate this court’s earlier release order
because two senior judges impermissibly served on the en
banc court. Lanier thus contends that because we lacked
authority to vacate his release order, he could not have been
guilty of the offense of failure to appear. For the reasons that
follow, we AFFIRM Lanier’s conviction and sentence.
10       United States v. Lanier                           No. 98-5447        No. 98-5447                        United States v. Lanier   3

  Here, the indictment charged that Lanier:                                                                 I.
  having been directed by the United States Court of                            Lanier was formerly the sole state Chancery Court judge for
  Appeals, Sixth Circuit to surrender to the United States                    two counties in rural Tennessee. Between 1989 and 1991,
  Marshal at Memphis, Tennessee in the Western District                       while still a judge, Lanier sexually assaulted several women
  of Tennessee, did knowingly and wilfully fail to                            in his judicial chambers. After the women reported the
  surrender for service of sentence as ordered by the Court,                  assaults, Lanier was charged with violating 18 U.S.C. § 242,
  in violation5 of Title 18, United States Code, Section                      which prohibits a person acting under color of state law from
  1346(a)(2).                                                                 violating the rights and privileges secured by the Constitution
                                                                              and laws of the United States, including the right to be free
(footnote added). Considering the above language, Lanier has                  from willful sexual assault. Following a jury trial, Lanier was
no argument that the indictment failed to set forth the                       convicted and sentenced to a term of imprisonment of 300
elements of the charged offense or that he lacked notice of the               months.
charge he faced. Lanier was fully cognizant that he was
charged with the failure to appear as directed and entered a                    On appeal, a panel of this court affirmed his conviction and
knowing and voluntary plea of guilty to that offense. In fact,                sentence, see United States v. Lanier, 33 F.3d 639 (6th Cir.
it is undisputed that Lanier deliberately defied a court order.               1994), but the full court vacated the decision and granted
Accordingly, to any extent that Lanier is arguing that his                    rehearing en banc, see United States v. Lanier, 43 F.3d 1033
indictment was insufficient, that argument fails. Because                     (6th Cir. 1995). During the en banc proceedings, we released
Lanier’s argument regarding the composition of the en banc                    Lanier on his own recognizance and set aside his conviction
court that vacated his release order was not a jurisdictional                 for “lack of any notice to the public that this ambiguous
challenge to his voluntary guilty plea in the district court for              criminal statute [§ 242] includes simple or sexual assault
failure to appear, he has waived that argument and it is not                  crimes within its coverage.” United States v. Lanier, 73 F.3d
viable on appeal.                                                             1380, 1384 (6th Cir. 1996) (en banc). The government
                                                                              successfully petitioned the United States Supreme Court for
  Even if we were to reach the merits of Lanier’s argument,                   a writ of certiorari. See United States v. Lanier, 518 U.S.
the two senior judges who served, Judge Keith and Judge                       1004 (1996).
Jones, did so appropriately. Judge Keith was a member of the
original panel that heard Lanier’s appeal and, therefore, as                    The Supreme Court vacated this court’s en banc judgment
counsel for Lanier conceded at oral argument, properly served                 and remanded the case to us. See United States v. Lanier, 520
on the en banc court. See 28 U.S.C. § 46(c)(1). As for Judge                  U.S. 259 (1997). The Court held that we committed error by
Jones, “[a] majority of the judges in regular active service [in              holding that due process under § 242 requires more than the
this circuit] voted that the correct interpretation of the various            “clearly established” qualified immunity test pursuant to 42
applicable statutes, rules of appellate procedure, and local                  U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403
rules of our circuit indicated that [Judge Jones] should be a                 U.S. 388 (1971). See Lanier, 520 U.S. at 269-70. On
                                                                              remand, before reconsidering the merits of Lanier’s original
                                                                              appeal, this court, sitting en banc, entered an order requiring
     5
      The indictment contained a typographical error in that it referred to
                                                                              Lanier to surrender to the United States Marshal for the
the statute as 18 U.S.C. § 1346 rather than 18 U.S.C. § 3146. This type       Western District of Tennessee by August 22, 1997. See
of typographical error does not render the indictment insufficient. See
United States v. Lake, 985 F.2d 265, 271 (6th Cir. 1993).
4     United States v. Lanier                      No. 98-5447      No. 98-5447                       United States v. Lanier        9

United States v. Lanier, 120 F.3d 640 (6th Cir. 1997) (en           fact guilty of the offense with which he is charged, he may not
banc).                                                              thereafter raise independent claims relating to the deprivation
                                                                    of constitutional rights that occurred prior to the entry of the
  At that time, Lanier was living in San Diego. Lanier’s            guilty plea.” 411 U.S. at 267. Accordingly, a defendant
daughter received the order and faxed a copy to Lanier’s            waives “all subsequent non-jurisdictional appeals to his
nephew, Tommy Mills, who lived near San Diego in El                 conviction by pleading guilty.” United States v. Pickett, 941
Centro, California. Lanier’s daughter also personally               F.2d 411, 416 (1991) (citation omitted). Thus, Lanier has
informed Lanier that he had been ordered to surrender. Mills        waived his challenge to his conviction for failure to appear
gave the copy of the order to Lanier; however, rather than          unless he can show that his challenge is jurisdictional in
preparing to surrender, Lanier fled to Mexico. Mills asked          nature.
one of his employees to bring Lanier back to the San Diego
area, but the employee and Lanier instead went to Tijuana,             Lanier does not contest the jurisdiction of the district court
Mexico, where they visited topless clubs for several hours.         in which he was convicted of failure to appear; rather, Lanier
They then traveled to Ensenada, Mexico, where Lanier                alleges that this court lacked jurisdiction to vacate his release
remained, thereby failing to surrender by August 22, 1997, as       order because the composition of the en banc court was
ordered. After Lanier’s failure to appear, this court, sitting en   improper. In effect, Lanier is arguing that our alleged lack of
banc, dismissed Lanier’s pending appeal of his underlying           jurisdiction to vacate his release order caused a corresponding
conviction. See United States v. Lanier, 123 F.3d 945 (6th          lack of jurisdiction in the district court. This argument fails.
Cir. 1997) (en banc).
                                                                      More specifically, Lanier appears to contend that his
  In late August 1997, United States deputy marshals                indictment for failure to appear was insufficient, based upon
discovered Lanier’s apartment in San Diego and determined           our alleged lack of jurisdiction to vacate his release order. An
that he was using an alias: Aubrey Lane Thompson. The               argument that an indictment was insufficient would be viable
investigation eventually led the deputy marshals to Ideal           on appeal, because the sufficiency of an indictment is a
Studios, located in Chicago, Illinois. Ideal Studios advertised     jurisdictional challenge. See United States v. Vanover, 888
the sale of fake identity documents and kits in several national    F.2d 1117, 1120 (6th Cir. 1989) (stating that defendant does
publications, such as the National Enquirer. The owner of the       not waive right to challenge sufficiency of the indictment by
company remembered an order from Aubrey Lane Thompson,              pleading guilty). Here, however, Lanier cannot show that his
which was shipped to Ensenada. The deputy marshals                  indictment was insufficient.
notified Mexican authorities, who were present on October
13, 1997 when Lanier picked up the Ideal Studios package at            Fed. R. Crim. P. 7(c)(1) provides, in part, that “[t]he
the Ensenada post office. The Mexican authorities then              indictment . . . shall be a plain, concise and definite written
arrested and deported Lanier.                                       statement of the essential facts constituting the offense
                                                                    charged.” In addition, the Supreme Court held that “an
   Upon his return to the United States, Lanier gave a              indictment is sufficient if it, first, contains the elements of the
statement to Deputy Marshal Tommy Thompson admitting                offense charged and fairly informs a defendant of the charge
that he intentionally failed to appear although he knew he had      against which he must defend, and, second, enables him to
been ordered to surrender. He also admitted that he                 plead an acquittal or conviction in bar of future prosecutions
established the alias of Aubrey Lane Thompson and resided           for the same offense.” Hamling v. United States, 418 U.S. 87,
in Mexico for the purpose of eluding capture.                       117 (1974).
8        United States v. Lanier                             No. 98-5447    No. 98-5447                             United States v. Lanier         5

                                     III.                                      A federal grand jury handed down a one-count indictment
                                                                            charging Lanier1 with failure to appear, in violation of 18
  Lanier further argues, pro se, that the en banc court lacked              U.S.C. § 3146. On December 30, 1997, Lanier entered a
jurisdiction to vacate this court’s earlier release order because           plea of guilty to the offense charged in the indictment. A plea
two senior judges – Judge Keith and Judge Jones –                           colloquy was held and the district court accepted Lanier’s
impermissibly served    on the en banc court, in violation of 28            plea. On March 6, 1998, the district court sentenced Lanier,
U.S.C. § 46(c).4 Lanier contends that because his release                   finding that Lanier’s offenses warranted2 a sentencing
order was erroneously vacated, he could not have been                       enhancement pursuant to 18 U.S.C. § 3147 and U.S.S.G.
convicted for failure to appear and, thus, his conviction for
that offense is a nullity. Lanier further contends that this
court should reinstate the direct appeal of his conviction for                  1
violating 18 U.S.C. § 242. We disagree.                                             Title 18 U.S.C. § 3146. Penalty for failure to appear

  Lanier’s argument challenging the composition of our en                       (a) Offense. – Whoever, having been released under this
                                                                                    chapter knowingly –
banc court is essentially a challenge to his conviction for                         (1) fails to appear before a court as required by the
failure to appear, a conviction that occurred as a result of a                          conditions of release; or
guilty plea. Thus, we must first determine whether Lanier has                       (2) fails to surrender for service of sentence pursuant to a
waived his argument by his plea of guilty. See Tollett v.                               court order; shall be punished as provided in subsection
Henderson, 411 U.S. 258, 267 (1973). “A voluntary and                                   (b) of this section.
intelligent guilty plea usually forecloses later attempts to                    (b) Punishment. – (1) The punishment for an offense under this
challenge the resulting judgment; the plea serves not only to                       section is –
admit the conduct charged in the indictment[,] but also to                          (A) if the person was released in connection with a charge
concede guilt of the substantive crime.” In re Hanserd, 123                              of, or while awaiting sentence, surrender for service of
F.3d 922, 926 (6th Cir. 1997) (citing United States v. Broce,                            sentence, or appeal or certiorari after conviction for –
488 U.S. 563, 570 (1989)). Or, as stated in Tollett, “a guilty                           (i) an offense punishable by death, life imprisonment,
                                                                                               or imprisonment for a term of 15 years or more, a
plea represents a break in the chain of events which has                                       fine under this title or imprisonment for not more
preceded it in the criminal process. When a criminal                                           than ten years, or both;
defendant has solemnly admitted in open court that he is in                              (ii) an offense punishable by imprisonment for a term
                                                                                               of five years or more, a fine under this title or
                                                                                               imprisonment for not more than five years, or
                                                                                               both;
    4                                                                                    (iii) any other felony, a fine under this title or
        Title 28 U.S.C. 46(c) provides in part that:
                                                                                               imprisonment for not more than two years, or both;
    A court in banc shall consist of all circuit judges of the circuit                         ...
    who are in regular active service . . . except that any senior
    circuit judge of the circuit shall be eligible (1) to participate, at              (2) A term of imprisonment imposed under this section
    his election and upon designation and assignment pursuant to                           shall be consecutive to the sentence of imprisonment
    section 294(c) of this title and the rules of the circuit, as a                        for any other offense.
    member of an in banc court reviewing a decision of a panel of               2
    which such judge was a member, or (2) to continue to participate              Title 18 U.S.C. § 3147. Penalty for an offense committed while on
    in the decision of a case or controversy that was heard or reheard      release
    by the court in banc at a time when such judge was in regular
    active service.                                                                    A person convicted of an offense committed while released
6       United States v. Lanier                            No. 98-5447   No. 98-5447                      United States v. Lanier      7

2J1.7,3 which provide for a three-level increase to a                      In raising this argument, Lanier acknowledges that in
defendant’s offense level for committing an offense while on             Benson, this court faced the precise issue he now raises. See
release pending trial, sentencing, or appeal. The district court         134 F.3d at 787-88. Defendant Benson was indicted and
imposed the minimum guideline sentence of twelve months,                 arrested on charges of mail theft and released on a $20,000
designating nine months as punishment for violating § 3146               unsecured bond. See id. at 787. After he failed to appear for
and three months attributable to § 3147, to run consecutive to           a court appearance, he was indicted for failure to appear in
Lanier’s existing sentence for his violation of 18 U.S.C.                violation of 18 U.S.C. § 3146. See id. At sentencing, the
§ 242. Lanier filed a timely notice of appeal.                           district court applied 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7
                                                                         to enhance Benson’s base offense level. See id. Benson
                                    II.                                  appealed to this court.
  Lanier first argues that the district court erred by applying             We affirmed Benson’s sentence, applying the rules of
18 U.S.C. § 3147 and U.S.S.G. § 2J1.7 to enhance his base                statutory construction to conclude that 18 U.S.C. § 3147 is
offense level.       Lanier contends that the three-level                not ambiguous and applies to “[a] person convicted of an
enhancement set forth in these sections – applicable when an             offense committed while released under this chapter. . . . ” Id.
offense is committed while a defendant is on release – should            at 788. Because Benson was convicted of an offense – failure
not apply when the offense of conviction is failure to appear,           to appear – the § 3147 enhancement applied. See id. We
an offense that is necessarily committed while on release.               stated that “[s]ection 3147 clearly and unambiguously
Lanier asserts that the enhancement constitutes impermissible            mandates that the courts impose additional consecutive
double counting in these circumstances. We review de novo                sentences on persons convicted of crimes they commit while
a sentencing court’s interpretation of the guidelines. See               released. . . . If Congress finds this result unpalatable, it is
United States v. Benson, 134 F.3d 787, 788 (6th Cir.), cert.             within its power to rewrite the existing statute.” Id. at 788-89
denied, 119 S. Ct. 343 (1998).                                           (quotation and citation omitted). Dissenting from the majority
                                                                         opinion, however, Judge Nelson opined that the application
                                                                         of the sentencing enhancement for the offense of failure to
           under this chapter shall be sentenced, in addition to the     appear constituted multiple punishments for the same crime.
           sentence prescribed for the offense to –                      See id. at 789 (Nelson, J., dissenting). Judge Nelson noted
                                                                         that he was “aware of nothing in the legislative history
           (1) a term of imprisonment of not more than ten years if      suggesting that Congress intended to impose multiple
               the offense is a felony; or
           (2) a term of imprisonment of not more than one year if the   punishments in a case such as this, and I do not read the
               offense is a misdemeanor.                                 statutory language as clearly manifesting such an intent.” Id.
           A term of imprisonment imposed under this section shall be      Even if we were persuaded by Lanier’s argument and Judge
           consecutive to any other sentence of imprisonment.            Nelson’s rationale, we are bound by the Benson decision. It
    3
                                                                         is firmly established that one panel of this court cannot
        U.S.S.G. § 2J1.7. Commission of Offense While on Release         overturn a decision of another panel; only the court sitting en
                                                                         banc can overturn such a decision. See United States v.
           If an enhancement under 18 U.S.C. § 3147 applies, add 3
           levels to the offense level for the offense committed while   Smith, 73 F.3d 1414, 1418 (6th Cir. 1996). Accordingly,
           on release as if this section were a specific offense         following Benson, we reject Lanier’s argument and affirm the
           characteristic contained in the offense guideline for the     district court’s enhancement of his sentence.
           offense committed while on release.
