10-4073-cr(L)
United States v. Gowing



                           UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT


                                      August Term, 2011

     (Submitted: May 17, 2012        Decided: June 6, 2012      Amended: June 18, 2012)

                          Docket Nos. 10-4073-cr(L), 11-683-cr (Con)


                                 UNITED STATES OF AMERICA,

                                                                 Appellee,

                                           — v. —

                           DELMER GOWING and EMIL SCHERINGER,

                                                                 Defendants-Appellants.


B e f o r e:

                          WINTER, STRAUB, and LYNCH, Circuit Judges.

                                    __________________



          Defendants-appellants were convicted at trial on charges arising from an elaborate,

years-long financial fraud. Defendant Delmer Gowing continued to take actions in

furtherance of the conspiracy to defraud even after he was arrested and released awaiting

trial for that same charge. Gowing principally argues that the district court’s application

of 18 U.S.C. § 3147, which enhances the sentence of “[a] person convicted of an offense
committed while released,” was error because Gowing did not commit a separate or

additional offense while on release, but only continued to commit the conspiracy.

Because the statute does not make such a distinction, and because Gowing’s other

sentencing arguments are without merit, we affirm the convictions and sentences.

      AFFIRMED.



              Marsha R. Taubenhaus, New York, New York, for Delmer Gowing.

              Kim P. Bonstrom, Bonstrom & Murphy, Shelter Island, New York, for Emil
                    Scheringer.

              Lee Renzin, Assistant United States Attorney, Brent S. Wible, Assistant United
                     States Attorney, for Preet Bharara, United States Attorney for the Southern
                     District of New York, New York, New York.


PER CURIAM:

      Defendants-appellants Delmer Gowing and Emil Scheringer were convicted by

jury on charges arising from their years-long, multimillion-dollar fraudulent investment

scheme. In a separate summary order filed along with this opinion, we address various

arguments challenging Gowing’s conviction and both defendants’ sentences. This

opinion addresses Gowing’s arguments about his sentence under 18 U.S.C. § 3147.1


      1
        Pursuant to Federal Rule of Appellate Procedure 28(i), Scheringer joins all of
Gowing’s arguments to the extent they are not inconsistent with his own. It is unclear
whether Scheringer would be able to raise an analogous § 3147 argument, because whereas
Gowing was convicted only of conspiracy, Scheringer was convicted of several additional
counts of substantive wire fraud and failure to appear, which may have also supported an
enhancement under § 3147. However, because we hold Gowing’s argument to be without

                                              2
First, he argues that the statute, which creates an additional penalty for “[a] person

convicted of an offense committed while released,” id., applies only when a person on

release pending adjudication of one offense commits a different offense. Because

Gowing’s sentence was enhanced for continuing to engage in the charged conspiracy

while on release awaiting trial for that same conspiracy, he argues that § 3147 cannot be

applied to him. Second, he challenges the district court’s jury instructions, which he

argues may have misstated the applicability of the § 3147 enhancement. Third, he argues

that the district court incorrectly allocated his sentence between the underlying conspiracy

charge and the § 3147 charge. We reject all three arguments.

                                     BACKGROUND

       As defendants were convicted after trial, we recite the facts taking the evidence in

the light most favorable to the verdict. E.g., United States v. Hsu, 669 F.3d 112, 114 (2d

Cir. 2012).

       Scheringer orchestrated a massive fraudulent scheme encompassing more than a

decade in time and tens of millions of dollars in losses. Scheringer claimed to operate

companies named Adlex Bent and Supreme Oil and Energy that had purchased African

oil contracts. In the typical case, Scheringer told his victim that the contracts would pay

off as soon as certain administrative requirements or financial obligations were satisfied.

Because his company supposedly already owned the contracts, Scheringer claimed there


merit, we need not consider the precise extent of Scheringer’s argument. For simplicity, we
will refer only to Gowing’s argument.

                                              3
was no risk involved in investing with him. The victims’ payments would purportedly be

used to help resolve these administrative requirements.

       Gowing learned of the investment scheme when he represented Scheringer in a

fraud suit. Although initially he refused to invest personally or refer others to the scheme,

eventually he helped solicit funds from victims, knowing that the scheme was fraudulent.

At sentencing, the court determined that Gowing’s involvement as a co-conspirator had

begun at the latest in January of 2004, when he brought a particular victim into the case.

       Scheringer was arrested in 2005 and was later released pending trial. Gowing was

indicted in June of 2006 and was arrested and released on bail. In calls recorded by the

government in 2008, Gowing and Scheringer spoke about obtaining more money from

victims. As trial approached, Gowing continued to engage in acts to further the

fraudulent scheme. The co-defendants also spoke to each other on the phone after

Scheringer’s release was revoked and he was detained in June 2009. In the calls,

recorded by the government just weeks before the September 2009 trial, Gowing detailed

to Scheringer his efforts to continue to raise money from victims.

                                      DISCUSSION

       Because the applicability of § 3147 is a legal determination to which Gowing

objected below, this Court reviews the district court’s conclusion de novo. E.g., United

States v. Weingarten, 632 F.3d 60, 63-64 (2d Cir. 2011).

       Gowing argues principally that 18 U.S.C. § 3147 applies only when a defendant on

release for one crime commits a second, distinct crime. The section cannot apply, he

                                             4
contends, when a defendant is arrested and released pending trial for a crime and then

continues to commit that same crime while on release. Gowing’s argument is based

primarily on background commentary to United States Sentencing Guidelines § 3C1.3,

which states that “[a]n enhancement under 18 U.S.C. § 3147 applies . . . when a defendant

is sentenced for an offense committed while released in connection with another Federal

offense” (emphasis added). Gowing also points out that, in a parenthetical in a footnote

in an unpublished order, this Court stated that § 3147 requires “an additional, consecutive

term of imprisonment for a defendant who commits the crime of conviction while on

release from another federal charge.” United States v. Bezmalinovic, 76 F. App’x 375,

376 n.2 (2d Cir. 2003). He also cites similar language in out-of-Circuit cases. See United

States v. Dadi, 235 F.3d 945, 955 (5th Cir. 2000); United States v. Harward, 94 F. App’x

998, 999 (4th Cir. 2004) (unpublished).

        Our interpretation begins, however, not with secondary authority, but with the text

of § 3147. That provision, titled “Penalty for an offense committed while on release,”

states, in full,

                   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.



                                                 5
18 U.S.C. § 3147. The text makes clear that § 3147 is applicable whenever “[a] person”

is “convicted of an offense committed while released” within the meaning of Chapter 207

of Part II of Title 18. (Chapter 207 includes 18 U.S.C. §§ 3141-3160; relevant here are

§§ 3141-3143, which govern release pending trial, sentence, or appeal.) The statute in no

way indicates that the offense committed while on release must be a separate or second

offense. Thus, the plain text of the statute is contrary to Gowing’s reading.

       The legislative history – which in any event could not trump the plain meaning of

the text, see Garcia v. United States, 469 U.S. 70, 75 (1984) (“[O]nly the most

extraordinary showing of contrary intentions from [legislative history] would justify a

limitation on the ‘plain meaning’ of the statutory language.”) – does not indicate that

Congress did not intend the enhanced punishment under § 3147 when the offender has

continued to commit the same crime. As noted in the Senate Report,

              Section 3147 is designed to deter those who would pose a risk
              to community safety by committing another offense when
              released under the provisions of this title and to punish those
              who indeed are convicted of another offense. This section
              enforces the self-evident requirement that any release ordered
              by the courts include a condition that the defendant not
              commit another crime while on release. Given the problem of
              crime committed by those on pretrial release this requirement
              needs enforcement.

S. Rep. No. 98-225, at 34 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3217. Though it

is of course true that the Senate Report refers to “committing another offense” and “a

condition that the defendant not commit another crime,” Gowing offers no reason to

believe that Congress meant this language in a narrow or technical way. A defendant

                                             6
who continues to engage in an ongoing conspiracy has committed another criminal act,

even if he is not chargeable with a second offense for the continuation of the conspiracy.

The goals announced in the Report – deterring and punishing further criminal actions by

those on release, which both protects the public and reinforces the rule of law and the

authority of courts – are equally applicable when a defendant on pretrial release continues

the same criminal offense for which he was arrested.

       Gowing’s citations to cases do not alter our analysis. He points us to no case,

within this Circuit or without, in which a court rejected the application of § 3147 when a

defendant continued to commit the same offense. The stray remarks that Gowing does

cite are properly considered dictum. For example, in Bezmalinovic, the defendant

“committed his offenses while on release pending adjudication of another charge,” as we

made clear in an earlier appeal in the case. United States v. Bezmalinovic, 14 F. App’x

61, 63 (2d Cir. 2001) (unpublished). Similarly, in Dadi, the Fifth Circuit expressly noted

that it was “not controverted” that “Dadi committed this offense while on release on

another federal charge.” 235 F.3d at 955. Equally inapposite is Gowing’s citation to

United States v. Lara, 975 F.2d 1120, 1128 (5th Cir. 1992), in which the court considered

whether the sentencing enhancement that implements § 3147 should be applied to the

charge on which the defendant had been released or to the new crime. In that case, the

defendant had committed a new, separate crime, id., and that court was not asked to

decide the instant issue.




                                             7
       Similar analysis disposes of Gowing’s argument based on the Guidelines

commentary. As an initial matter, we doubt that the Sentencing Commission’s remarks in

the “Background” section of an application note constitute an attempt to interpret the full

scope of § 3147. More likely, the Commission was simply attempting to explain in

straightforward language the usual application of § 3147 and the Guideline sections that

implement it. It is surely true that the great majority of § 3147 applications are premised

on “another federal charge,” U.S.S.G. § 3C1.3 cmt. background, in the sense of a separate

and distinct charge. But this does not mean the section cannot apply when the defendant

continues to commit the crime for which he has been charged and released pending trial.

       But whatever the Commission intended, the background commentary has no legal

authority in this case. To the extent that the Guidelines or an application note or

commentary interpreting them conflict with a statute, we must follow the statute. The

Sentencing Commission, which promulgates the Guidelines, is entitled to no deference

when it interprets criminal statutes. See, e.g., DePierre v. United States, 131 S. Ct. 2225,

2236 (2011) (“We have never held that, when interpreting a term in a criminal statute,

deference is warranted to the Sentencing Commission’s definition of the same term in the

Guidelines.”); United States v. Palacio, 4 F.3d 150, 155 (2d Cir. 1993) (“[U]nless the

Sentencing Commission is construing its own authority as an agency, its view of the

substantive meaning of a criminal statute is unlikely to be entitled to any deference.”

(internal citations omitted)).




                                             8
       We thus conclude that § 3147 does apply to enhance the sentence of a person who

continues to commit, while on release, the same crime for which he is awaiting trial.

Such a person, in the plain language of the statute, has been “convicted of an offense

committed while released” pending trial. The district therefore court properly applied

§ 3147 to enhance Gowing’s sentence.

       Having found § 3147 applicable to Gowing’s case, we turn to two related

arguments.2 First, Gowing argues that the jury did not find that he continued to commit

the conspiracy while on “release[],” the term used in § 3147, but rather that it only found

that he committed the conspiracy after he was charged. Gowing was briefly incarcerated

for civil contempt in an unrelated case after the charge in this case,3 and Gowing argues

that based on the jury questions, the jury might have found that he continued to commit

the conspiracy only during this window, which (he argues) was not a period of

“release[].” Thus, according to Gowing, the jury charge violates the rule of Apprendi v.

New Jersey, 530 U.S. 466 (2000).

       Gowing’s argument, however, is not in the ordinary sense a claim of Apprendi

error. The district court submitted the § 3147 charge to the jury, and properly required

the jury to find all of the elements of that offense, as it was required to do. See United

States v. Confredo, 528 F.3d 143, 153-56 (2d Cir. 2008) (recognizing that § 3147 is

       2
         To the extent that Scheringer joins in either of Gowing’s remaining arguments, we
find his claims meritless for the same reasons we reject Gowing’s.
       3
         Further factual background on these proceedings, which is relevant to an
evidentiary argument that Gowing also makes on this appeal, is presented in our
accompanying summary order.

                                              9
subject to Apprendi because it “exposes the defendant to the risk of a sentence that

exceeds the statutory maximum”). Gowing’s claim is really an argument – never made to

the district court – that the court should have instructed the jury that Gowing should not

be considered “released” for purposes of § 3147 during a period when he was jailed for

contempt by a different court in an unrelated civil case. The claim is without merit.

       Because he did not raise this objection before the district court, it is reviewable

only for plain error. E.g., Hsu, 669 F.3d at 118. Assuming for the sake of argument that

Gowing could show error,4 he has offered no further argument or evidence that the error

affected his substantial rights – that is, that the jury might have reached a different

conclusion based on the evidence presented at trial. See Fed. R. Crim. P. 52(b) (“A plain

error that affects substantial rights may be considered even though it was not brought to

the court’s attention.”); United States v. Olano, 507 U.S. 725, 734 (1993) (“In most cases,

a court of appeals cannot correct the forfeited error unless the defendant shows that the

error was prejudicial.”). Neither Gowing’s nor the government’s summation made any

mention of Gowing’s brief civil confinement as a basis for finding or rejecting the § 3147

enhancement, or addressed whether any of the evidence of Gowing’s continued

involvement in the charged conspiracy concerned acts committed while Gowing was

jailed for contempt. And the government offered ample evidence of Gowing’s continuing

involvement in the scheme after his arrest but outside of the three-month period of


       4
       Although Gowing’s brief does not mention the point, it appears that his bail in this
case was indeed revoked during the period of his unrelated civil confinement.

                                              10
confinement – for example, the flows of money into his account later in 2008, and

recorded incriminating calls between Gowing and Scheringer in the weeks before trial.

Gowing’s claim of error amounts to unsupported speculation, and we therefore reject it.

       Second, Gowing attacks the allocation of his sentence between the underlying

conspiracy offense and § 3147. After applying the 3-level enhancement found at U.S.

Sentencing Guidelines § 3C1.3, which implements § 3147, the district court calculated

Gowing’s Guidelines range as 235 to 293 months. The court selected 264 months as the

total sentence, and then apportioned the sentence as follows: 240 months to the

conspiracy, and an additional consecutive 24 months for § 3147. Gowing argues that this

allocation violates the procedure set forth in United States v. Stevens, 66 F.3d 431, 436

(2d Cir. 1995), which would require allocating less of the sentence to the conspiracy

charge and more to § 3147, without changing the overall sentence. Gowing, however, did

not make this argument below, and it is therefore reviewable only for plain error.

       As an initial matter, Gowing’s claim of error is dubious (and hardly “plain”) given

two developments since Stevens: the end of mandatory Guideline sentencing after United

States v. Booker, 543 U.S. 220 (2005), and the Commission’s apparent rejection, in 2009

amendments, of our holding in Stevens. See U.S Sentencing Guideline Manual app. C,

amend. 734 (2009) (mentioning Stevens, but rejecting its holding because “only one

guideline range applies” to a defendant). But even assuming for the sake of argument that

Gowing could show error, he has once again not articulated how that error affected his




                                            11
substantial rights, given that his overall sentence is unaffected by the asserted error. See

Olano, 507 U.S. at 734-35. We therefore decline to consider this claim of error.

                                         CONCLUSION

       We have considered all of Gowing’s and Scheringer’s arguments and found them

to be without merit. The judgments of the district court are therefore AFFIRMED.




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