                                                     NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                           ________

                          No. 12-2326
                          _________


               UNITED STATES OF AMERICA

                               v.

                       LEVON GAUSE,
                                         Appellant
                           ________

         On Appeal from the United States District Court
            for the Western District of Pennsylvania
                  (D.C. No. 3-11-cr-00006-001)
           District Judge: Honorable Kim R. Gibson

                            _______

           Submitted Under Third Circuit LAR 34.1(a)
                      September 10, 2013

     Before: SMITH, GARTH, and SLOVITER, Circuit Judges

              (Opinion Filed: September 12, 2013)

                          __________

                           OPINION
                          __________
SLOVITER, Circuit Judge.


       Levon Gause appeals the sentence imposed following his plea of guilty to failure

to appear for a court proceeding, in violation of 18 U.S.C. § 3146. For the reasons that

follow, we will affirm the judgment of sentence. 1

                                            I.

       Gause was released with electronic monitoring after pleading guilty to one count

of drug distribution in violation of 21 U.S.C. § 841. When he failed to appear for

sentencing, a grand jury indicted him for violating 18 U.S.C. § 3146(a)(1), which

punishes “[w]hoever, having been released under this chapter knowingly [ ] fails to

appear before a court as required by the conditions of release.” Gause was apprehended

soon thereafter. He pled guilty to the § 3146 charge as well, and the two convictions

were consolidated for sentencing.

       To determine Gause’s sentencing range under the 2011 Sentencing Guidelines

(“Guidelines”), the District Court grouped the two counts, determined the base offense

level of the drug charge, and applied an obstruction-of-justice enhancement to account

for the failure to appear. The Court then applied a separate enhancement pursuant to 18

U.S.C. § 3147 and U.S.S.G. § 3C1.3 for conviction of an offense committed during

release. The Court ultimately sentenced Gause to ninety months’ imprisonment, of which




1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                             2
twelve were attributable to the § 3146 offense and another twelve to the § 3147

enhancement.

         This appeal relates solely to the portion of the sentence attributable to the failure-

to-appear offense and § 3147 enhancement.

                                                II.

         Gause first claims that the District Court erred in applying § 3147. He argues that

a § 3147 enhancement for commission of an offense while released does not apply when

the only offense a defendant has committed is a § 3146 failure to appear. We exercise

plenary review of the District Court’s interpretation of the law and Guidelines. See

United States v. Richards, 674 F.3d 215, 218 (3d Cir. 2012). 2

         Section 3147 provides:

         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—

                (1) a term of imprisonment of not more than ten years if the offense is a

                felony; or

                (2) a term of imprisonment of not more than one year if the offense is a

                misdemeanor.

         A term of imprisonment imposed under this section shall be consecutive to any

         other sentence of imprisonment.

18 U.S.C. § 3147.



2
    This objection was raised below, contrary to the parties’ representations in briefing.
                                                3
       Gause contends that failure to appear is not the kind of “offense” that § 3147 is

meant to punish. Whether § 3147 applies to violations of § 3146 is a question of first

impression in our circuit. Seven of our sister circuits have held that it does. See United

States v. Duong, 665 F.3d 364, 367 (1st Cir. 2012); United States v. Rosas, 615 F.3d

1058, 1064-65 (9th Cir. 2010); United States v. Dison, 573 F.3d 204, 207-09 (5th Cir.

2009); United States v. Clemendor, 237 F. App’x 473, 478 (11th Cir. 2007); United

States v. Fitzgerald, 435 F.3d 484, 486-87 (4th Cir. 2006); United States v. Benson, 134

F.3d 787, 788 (6th Cir. 1998). In general, they have reasoned that the terms of the statute

are unambiguous. Section 3147 applies to defendants convicted of any “offense

committed while released,” and violation of § 3146 is an offense that “is—and can only

be—‘committed while released.’” Duong, 665 F.3d at 367. These decisions have held

that, by its plain terms, § 3147 encompasses violations of § 3146 and must be enforced as

written.

       In the particular circumstances of this case, we agree. It is undisputed that Gause

was “convicted of an offense committed while released.” We have repeatedly found

“that the language of § 3147 is clear and unambiguous,” United States v. Lewis, 660 F.3d

189, 192 (3d Cir. 2011) (citing United States v. Di Pasquale, 864 F.2d 271, 280 (3d Cir.

1988)), and Gause gives us no basis for reaching a different conclusion. His only

argument is that § 3147 could be read to apply either to offenses “under this chapter

[207]” or to persons released “under this chapter [207].” It is patently clear, however,

that § 3147 is not limited to Chapter 207 offenses, but rather applies to persons released



                                             4
under Chapter 207 (“Release and Detention Pending Judicial Proceedings”). 18 U.S.C.

Part II, Ch. 207. The ambiguity that Gause asserts does not exist.

       “Where the statute is clear and unambiguous, the judicial inquiry is complete. . . .”

Lewis, 660 F.3d at 193. Given the limited argument that Gause has presented, we cannot

say that the District Court erred in applying § 3147 in this case. 3

                                             III.

       Secondly, Gause claims that the District Court erred in failing to consider whether

the portion of his final sentence imposed for the § 3146 offense (including the § 3147

enhancement) fell within the guideline range for that offense. Because he did not raise

this objection below, we review for plain error. See Puckett v. United States, 556 U.S.

129, 135 (2009); Fed. R. Crim. P. 52(b).

       Gause is correct that the Guidelines commentary for § 3C1.3 – the provision that

implements § 3147 – directs the sentencing court to ensure that the “total punishment” for

the offense committed on release plus the § 3147 enhancement “is in accord with the


3
  It is troubling that § 3147 imposes an additional penalty for a fact that is already an
element of the § 3146 offense (that the offense is committed during release). While
duplicative sentencing enhancements are presumptively valid, see United States v. Wong,
3 F.3d 667, 670-71 (3d Cir. 1993), duplicative offenses raise double-jeopardy concerns
and are presumed to be mutually exclusive, see Simpson v. United States, 435 U.S. 6, 15-
16 (1978) (refusing to apply duplicative offense statute “absent a clear and definite
legislative directive”), superceded on other grounds by statute, Comprehensive Crime
Control Act of 1984, Pub. L. No. 98-473, § 1005(a), 98 Stat. 2138-39. For constitutional
purposes, any fact that increases statutory punishment constitutes an offense element
rather than a mere enhancement. See, e.g., Alleyne v. United States, 133 S. Ct. 2151,
2155 (2013). Section 3147 would thus pose a double-jeopardy problem if it resulted in
punishment beyond the statutory maximum for § 3146. In Gause’s case, however, it did
not. Furthermore, he has waived any argument on this front. See United States v.
Pelullo, 399 F.3d 197, 222 (3d Cir. 2005).
                                              5
[adjusted] guideline range for the offense committed while on release.” Id. cmt. n.1.

This does not, however, require an explicit finding on the record. Even if it did, any error

the District Court committed would be harmless because the portion of Gause’s sentence

attributable to the § 3146 offense and § 3147 enhancement – twenty-four months – is

actually below the applicable range for the offense. 4

                                            IV.

       For the foregoing reasons, we will affirm the judgment of sentence.




4
 When the underlying charge is punishable by more than fifteen years, as was the drug
charge here, the offense level for 18 U.S.C. § 3146 is 15. See U.S.S.G. § 2J1.6. The §
3C1.3 adjustment brings it to 18. Gause’s criminal history level is III. The applicable
adjusted range is 33-41 months. See id. § 5A. Even without the adjustment, the range
would be 24-30 months. Id.
                                             6
