                        REVISED JULY 24, 2009

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit

                                                                   FILED
                                  No. 08-30786                     June 23, 2009

                                                             Charles R. Fulbruge III
                                                                     Clerk
UNITED STATES OF AMERICA

                                            Plaintiff - Appellee
v.

ALICIA A DISON

                                            Defendant - Appellant



                 Appeal from the United States District Court
                    for the Western District of Louisiana


Before WIENER, DENNIS, and CLEMENT, Circuit Judges.
JACQUES L. WIENER, JR.:
      Defendant-Appellant Alicia Dison pleaded guilty to one count of failure to
surrender for service of sentence in violation of 18 U.S.C. § 3146. She now
appeals her sentence, claiming that the district court erred in imposing a
sentence enhancement pursuant to 18 U.S.C. § 3147 and section 3C1.3 of the
United States Sentencing Guidelines (the “Guidelines”) for committing an
offense while on release.    Concluding that the sentencing court correctly
interpreted the Guidelines to permit the application of this enhancement to a
§ 3146 conviction — a res nova issue in this circuit — we affirm Dison’s sentence.
                                           No. 08-30786

                                      I. BACKGROUND
      Alicia Dison pleaded guilty to a one-count indictment for failure to
surrender for service of sentence (“failure to appear”) in violation of 18 U.S.C.
§ 3146. The district court had ordered her to surrender to the Bureau of Prisons
on February 11, 2008 to begin serving her sentence on a previous conviction for
conspiracy to commit an offense or to defraud the United States, a violation of
18 U.S.C. § 371. After Dison failed to appear, she was arrested and charged with
violating § 3146, which states:
      (a) Offense. — Whoever, having been released under this chapter1
      knowingly —

                (1) fails to appear before a court as required by the conditions of
                release; or

                (2) fails to surrender for service of sentence pursuant to a court
                order;

      shall be punished as provided in subsection (b) of this section.2
Because Dison’s original conviction — the violation of § 371 — was punishable
by imprisonment for five or more years, subsection (b) of § 3146 sets the
maximum penalty for Dison’s failure to appear at a fine and five years
imprisonment, consecutive to the sentence for any other offense.3
      The U.S. Probation Officer’s pre-sentence report computed Dison’s offense
level to include an enhancement pursuant to section 3C1.3 of the Guidelines.
That section mandates a three-level increase in the offense level “[i]f a statutory

      1
          Chapter 207, Release and Detention Pending Judicial Proceedings.
      2
          18 U.S.C. § 3146(a) (2008) (emphasis added).
      3
          See id. §§ 3146(b)(1)(A)(ii), (b)(2).

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                                      No. 08-30786

sentencing enhancement under 18 U.S.C. § 3147 applies.”4 In turn, § 3147 states
that “[a] person convicted of an offense committed 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 if the offense is a
felony . . . .”5 The sole offense for which Dison was convicted while on release
was the felony of failure to appear in violation of § 3146.6
       Dison objected to the § 3147 enhancement on the same grounds she raises
in this appeal.7 The sentencing court rejected the objection and sentenced Dison
to serve a total of 21 months for the failure to appear, five of which were on
account of the § 3147 enhancement.8 The 21-month total sentence was at the
low end of the calculated Guidelines range of 21 to 27 months and below the five-
year statutory maximum penalty that Dison faced for violating § 3146.
       On appeal, Dison contends that the § 3147 enhancement should not apply
when the sole offense committed while on release is failure to appear, which by
definition can only be committed while on release. She argues that the § 3147
enhancement as applied to a § 3146 offense (1) is ambiguous and should thus be
interpreted in favor of lenity, and (2) constitutes improper double-counting,
thereby violating the Double Jeopardy Clause.

       4
           U.S. SENTENCING GUIDELINES MANUAL § 3C1.3 (2008).
       5
           18 U.S.C. § 3147(1).
       6
        See 18 U.S.C. § 3559(a) (defining a felony as any offense punishable by more than one
year imprisonment).
       7
         In the interest of simplicity, this opinion refers to the subject enhancement as the
“§ 3147 enhancement.” More precisely, it is an enhancement pursuant to section 3C1.3 of the
Guidelines, which effectuates the mandate of § 3147. See United States v. Benson, 134 F.3d
787, 788 (6th Cir. 1998) (discussing former section 2J1.7, the predecessor of section 3C1.3).
       8
        The Guidelines require that the sentencing court divide the sentence between that
attributable to the underlying offense and that attributable to the § 3147 enhancement. U.S.
SENTENCING GUIDELINES MANUAL § 3C1.3 cmt. n.1.

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                                        No. 08-30786

                                       II. ANALYSIS
A.     Standard of Review
       We review de novo a district court’s interpretation and application of the
Guidelines.9
B.     Claimed Sentencing Error
       Although Dison presents an issue of first impression in this circuit, three
other circuits — two in published decisions and one in an unpublished, non-
precedential opinion — have held that the plain language of the relevant
statutes mandates application of the § 3147 enhancement to the offense of
failure to appear in violation of § 3146.10 Like each of the other circuits that has
confronted this issue, we too are persuaded by Congress’s unambiguous
language to conclude that a defendant who commits the offense of failure to
appear is subject to the § 3147 enhancement for committing that offense while
on release. Here is why.
       When the plain language of a statute is unambiguous and does not “lead[]
to an absurd result,”11 “our inquiry begins and ends with the plain meaning of
that language.”12 The plain language of § 3147 is unambiguous in mandating a



       9
           United States v. Gould, 529 F.3d 274, 276 (5th Cir. 2008).
       10
         United States v. Clemendor, 237 F. App’x 473 (11th Cir. 2007) (per curiam)
(unpublished); United States v. Fitzgerald, 435 F.3d 484 (4th Cir. 2006); Benson, 134 F.3d 787;
see 11TH CIR. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.”).
       11
          United States v. Rabanal, 508 F.3d 741, 743 (5th Cir. 2007) (quotation marks and
citation omitted).
       12
          United States v. Crittenden, 372 F.3d 706, 708 (5th Cir. 2004) (citation omitted); see
Tidewater Inc. v. United States, 565 F.3d 299, 303 (5th Cir. 2009) (refusing to resort to
legislative history); see also Garcia v. United States, 469 U.S. 70, 75 (1984) (“When we find the
terms of a statute unambiguous, judicial inquiry is complete, except in ‘rare and exceptional
circumstances.’” (quoting TVA v. Hill, 437 U.S. 153, 187 n.33 (1978))).

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                                          No. 08-30786

sentence enhancement to “[a] person convicted of an offense committed while
released under [] chapter [207].”13 In the instant case, Dison was convicted of an
offense — failure to appear in violation of § 3146 — that she committed while
she was on release under chapter 207 of Title 18. The § 3147 enhancement thus
unambiguously applies to Dison.14 The rule of lenity has no traction in such
cases.15
       Dison contends that even if the § 3147 enhancement could be read as
extending to the § 3146 offense of failure to appear, the enhancement as applied
to her violates the Fifth Amendment’s Double Jeopardy Clause because it
“exposes Ms. Dison to multiple punishments for the same offense.” It is true
that Dison is subject to the § 3147 enhancement for having failed to appear while
on release even though she committed that offense in the only manner possible,
viz., while on release.16 Yet, assuming arguendo that the enhancement subjects
Dison to double counting, “such an application would not necessarily violate the
double jeopardy clause.”17 “The [Supreme] Court has . . . defined the nature of
double jeopardy protection by stating: ‘[w]ith respect to cumulative sentences
imposed in a single trial, the Double Jeopardy Clause does no more than prevent




       13
            18 U.S.C. § 3147.
       14
            See Fitzgerald, 435 F.3d at 486 (applying this logic); Benson, 134 F.3d at 788 (same).
       15
           Burgess v. United States, 128 S. Ct. 1572, 1580 (2008) (“‘[T]he touchstone of the rule
of lenity is statutory ambiguity.’” (quoting Bifulco v. United States, 447 U.S. 381, 387 (1980)));
United States v. Salazar, 542 F.3d 139, 147 (5th Cir. 2008) (requiring “‘grievous ambiguity or
uncertainty’” in a statute to invoke the rule of lenity (quoting Muscarello v. United States, 524
U.S. 125, 138–39 (1998))).
       16
            18 U.S.C. § 3146(a) (“Whoever, having been released under this chapter . . .”).
       17
            United States v. Gonzales, 996 F.2d 88, 93 (5th Cir. 1993).

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                                         No. 08-30786

the sentencing court from prescribing greater punishment than the legislature
intended.’”18
       Here, there was a single prosecution for Dison’s offense of failure to
appear. And, we know that cumulative punishment, to the extent any exists, is
within the intent of Congress because the “Guidelines are explicit when double
counting is forbidden.”19 Under the doctrine of inclusio unius est exclusio
alterius, “only if the guideline in question expressly forbids double counting,
would such double counting be impermissible.”20 Section 3147 contains no
prohibition against cumulative punishment.                   We presume, therefore, that
Congress intended to impose it; there is thus no double jeopardy violation.21
       We continue briefly to emphasize that the instant case is not one in which
we must determine whether Congress intended to permit a defendant to be
convicted of, and sentenced for, two offenses that penalize the same underlying
conduct.22     If that were the case, we would require a “clear and definite


       18
         United States v. Bigelow, 897 F.2d 160, 161 (5th Cir. 1990) (quoting Missouri v.
Hunter, 459 U.S. 359, 365–66 (1983)); see Gonzales, 996 F.2d at 93 (stating that in a single
prosecution, “cumulative punishment is always consistent with the double jeopardy clause” if
the sentence is within legislatively intended limits) (citation omitted).
       19
         Gonzales, 996 F.2d at 94 (citation omitted); see United States v. Jones, 145 F.3d 736,
737 (5th Cir. 1998).
       20
       Gonzales, 996 F.2d at 94 (finding no error when the district court applied multiple
enhancements “for essentially the same conduct”).
       21
          See id.; see also United States v. Fitzgerald, 435 F.3d 484, 486 (4th Cir. 2006) (stating
that the “Supreme Court has ‘[h]istorically . . . found double jeopardy protections inapplicable
to sentencing proceedings’ and has refused to construe sentence enhancements as additional
punishments” (quoting Monge v. California, 524 U.S. 721, 728 (1998))).
       22
          Specifically this case is unlike the inquiry of Simpson v. United States in which the
Supreme Court asked whether Congress intended to permit cumulative sentences on
convictions for the offenses of both aggravated robbery, i.e., committed with a dangerous
weapon, and use of a firearm to commit a felony. 435 U.S. 6, 9–12 (1978), superceded by
statute, Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 1005(a), 98 Stat.

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                                          No. 08-30786

legislative directive” indicating that Congress intended both punishments.23
Instead, our precedent establishes that § 3147 provides only a sentence
enhancement and does not constitute an independent offense or an element
thereof.24 This analysis is consistent with the Supreme Court’s decision in
Apprendi, which held that “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.”25 Apprendi
is inapplicable to “a fact used in sentencing that does not increase a penalty
beyond the statutory maximum.”26 And, regardless of the fact that § 3147 calls
for punishment “in addition to the sentence prescribed” for the underlying
offense, the § 3147 enhancement can never result in a sentence in excess of the
statutory maximum prescribed for the offense committed while on release, here




1976, 2138–39 (1984); see Busic v. United States, 446 U.S. 398, 404–05 (1980), superceded by
statute, Comprehensive Crime Control Act § 1005(a) (re-affirming Simpson); see also United
States v. Harris, 420 F.3d 467, 478 (5th Cir. 2005) (treating 18 U.S.C. § 924(c)(1) — use of a
firearm during a crime of violence — as an independent offense that requires conviction by a
jury).
       23
            Simpson, 435 U.S. at 15–16.
       24
          United States v. Jackson, 891 F.2d 1151, 1153 (5th Cir. 1989) (per curiam); see United
States v. Patterson, 820 F.2d 1524, 1526 (9th Cir. 1987) (holding that § 3147 is a sentence
enhancement and that the statute is not vague or ambiguous, but rather plain and clear).
       25
            Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
       26
          United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000) (per curiam); see United
States v. McWaine, 290 F.3d 269, 276 (5th Cir. 2002) (adopting the reasoning that “Apprendi
poses no obstacle to guideline calculations that do not result in a sentence exceeding the
statutory maximum on any single count”).

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                                       No. 08-30786

failure to appear.27 Our foregoing analysis of the subject sentencing scheme
therefore stands without the need for any additional scrutiny.
       Given the unambiguous statutory language — which does not lead to an
“absurd” result28 — we presume Congress intended the § 3146 offense and the
§ 3147 enhancement to interact in the manner that the plain text mandates. If,
hereafter, Congress “finds this result unpalatable, it is within its power to
rewrite the existing statute.”29
                                  III. CONCLUSION
       We conclude that, under 18 U.S.C. § 3147 and section 3C1.3 of the
Guidelines, a defendant is subject to the enhancement for committing an offense
while on release even if the defendant, while on release, commits only the offense
of failure to appear in violation of 18 U.S.C. § 3146. Accordingly, the district
court did not err in sentencing Dison.
AFFIRMED.




       27
         U.S. SENTENCING GUIDELINES MANUAL § 5G1.1(a) (“Where the statutorily authorized
maximum sentence is less than the minimum of the applicable guideline range, the statutorily
authorized maximum sentence shall be the guideline sentence.”); see United States v. Samuel,
296 F.3d 1169, 1175 (D.C. Cir. 2002) (concluding that despite the § 3147 language indicating
that the enhancement requires a sentence “in addition to the sentence” for the underlying
offense, “application of § 2J1.7 [the former version of § 3C1.3] can neither increase a
defendant’s sentence above the statutory maximum for the offense of conviction, nor expose
him to the possibility of such an increase” (emphasis in original)); see also U.S. SENTENCING
GUIDELINES MANUAL § 3C1.3, historical note, Reason for Amendment (2006) (indicating that
the Commission relocated the § 3147 enhancement from section 2J1.7 to section 3C1.3 to
“ensure[] the enhancement is not overlooked”).
       28
           See Crooks v. Harrelson, 282 U.S. 55, 60 (1930) (“[T]o justify a departure from the
letter of the law upon th[e] ground [of absurdity], the absurdity must be so gross as to shock
the general moral or common sense.”).
       29
          United States v. Benson, 134 F.3d 787, 788–89 (6th Cir. 1998); see Jacobs v. Nat’l
Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“Congress is presumed to be aware
of court decisions construing statutes and may, of course, amend a statute as a result.”).

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