                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0808n.06

                                           No. 13-6554
                                                                                        FILED
                                                                                    Oct 24, 2014
                          UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                                ON APPEAL FROM THE
                                                         )
                                                                UNITED STATES DISTRICT
v.                                                       )
                                                                COURT FOR THE
                                                         )
                                                                WESTERN DISTRICT OF
RANDELL ROBERTS,                                         )
                                                                TENNESSEE
                                                         )
       Defendant-Appellant.                              )

BEFORE: GIBBONS, McKEAGUE, Circuit Judges; and Lawson,* District Judge.

       JULIA SMITH GIBBONS, Circuit Judge. Randell Roberts pled guilty to failure to

surrender for service of sentence in violation of 18 U.S.C. § 3146(a)(2). The district court

applied a three-level enhancement under U.S.S.G. § 3C1.3. That enhancement implements

18 U.S.C. § 3147, which provides that a person convicted of an offense committed while on

release shall be sentenced to a term of imprisonment of not more than ten years if the offense is a

felony. Roberts asserts that the application of the § 3C1.3 enhancement conflicts with Alleyne v.

United States, 133 S. Ct. 2151 (2013). For the following reasons, we affirm.

                                                I.

       In March 2012, after being arrested on federal fraud and conspiracy charges, Roberts was

released on bond and ordered to submit to pretrial supervision with electronic location

monitoring.   In October of that year, Roberts pled guilty to possession of device-making



       *The Honorable David M. Lawson, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 13-6554
United States v. Roberts

equipment (a credit card “skimming” machine) in violation of 18 U.S.C. § 1029(a)(4) and

identity theft in violation of 18 U.S.C. § 1028A(a)(1).         He was sentenced to 58 months’

imprisonment but was permitted to remain on bond and self-report when he was designated to a

federal facility. Roberts was ordered to surrender to the Bureau of Prisons facility in Forrest

City, Arkansas, on March 21, 2013. Following his failure to report, Roberts was arrested and he

eventually pled guilty to failure to surrender for service of sentence.

       The Presentence Report (PSR) calculated a base offense level of 11. The PSR then

applied a three-level enhancement pursuant to § 3C1.3 because Roberts committed the offense

(failure to surrender for service of sentence) while on release for another federal offense

(possession of device-making equipment and identity theft). It also applied a two-level reduction

for acceptance of responsibility for a total offense level of 12. His criminal history category was

VI, which yielded an advisory guidelines range of 30 to 37 months. Roberts objected that the

application of the § 3C1.3 enhancement violated his Sixth Amendment rights under Alleyne. The

district court overruled Roberts’s objection, concluding that there was no “increase in the

statutory punishment range.” The district court sentenced Roberts to 30 months’ imprisonment

and divided the sentence between 24 months on the failure-to-surrender offense and 6 months

pursuant to § 3147, to be served consecutively to Roberts’s undischarged sentence.

                                                 II.

       Roberts makes one argument on appeal: The application of the § 3C1.3 sentencing

enhancement violated his Sixth Amendment rights because he was never formally charged in the

indictment with a violation of § 3147. Roberts’s challenge to the constitutionality of his sentence

is reviewed de novo. United States v. Anderson, 695 F.3d 390, 398 (6th Cir. 2012).




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United States v. Roberts

       U.S.S.G. § 3C1.3 and 18 U.S.C. § 3147 operate in tandem to deter the commission of

additional offenses by a defendant on release. 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.

       U.S.S.G § 3C1.3 implements this statutory directive by instructing district courts: “If a

statutory sentencing enhancement under 18 U.S.C. § 3147 applies, increase the offense level by

3 levels.” The note to § 3C1.3 further explains:

       Under 18 U.S.C. 3147, a sentence of imprisonment must be imposed in addition
       to the sentence for the underlying offense, and the sentence of imprisonment
       imposed under 18 U.S.C. 3147 must run consecutively to any other sentence of
       imprisonment. Therefore, the court, in order to comply with the statute, should
       divide the sentence on the judgment form between the sentence attributable to the
       underlying offense and the sentence attributable to the enhancement. The court
       will have to ensure that the “total punishment” (i.e., the sentence for the offense
       committed while on release plus the statutory sentencing enhancement under
       18 U.S.C. 3147) is in accord with the guideline range for the offense committed
       while on release, including, as in any other case in which a Chapter Three
       adjustment applies (see § 1B1.1 (Application Instructions)), the adjustment
       provided by the enhancement in this section.

U.S.S.G. § 3C1.3, cmt. n.1. The purpose of this Guideline is to enable the district court “to

determine and implement a combined ‘total punishment’ consistent with the overall structure of

the guidelines, while at the same time complying with the statutory requirement.” Id., cmt.

(backg’d).

       Roberts’s challenge is directed at a particular Guidelines enhancement, but it is implicitly

based on a particular interpretation of § 3147. As the government points out, that interpretation

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No. 13-6554
United States v. Roberts

is that § 3147 requires a mandatory minimum sentence of at least one day. Whether § 3147 does

so is debatable. It states that a person “shall be sentenced . . . to . . . a term of imprisonment of

not more than ten years,” which in other contexts has been determined not to impose a statutory

minimum. See, e.g., United States v. Israel, 230 F. App’x 572, 574 (6th Cir. 2007); United

States v. Vaughn, 430 F.3d 518, 521 (2d Cir. 2005) (Sotomayor, J.); United States v. Saikaly,

75 F. App’x 387, 390 (6th Cir. 2003). Its mandatory aspect appears to be in requiring that any

sentence under § 3147 be consecutive to any sentence for the crime for which the defendant

failed to surrender. On the other hand, in United v. Lewis, our court in dicta indicated that

§ 3147 “mandates . . . additional consecutive sentences on persons convicted of crimes while

released on bond.” 991 F.3d 322, 324 (6th Cir. 1993) (emphasis added). And application note

1 to § 3C1.3 concludes that a term of imprisonment must be imposed.

       But whatever interpretation of § 3147 might be adopted, the result here is unchanged.

Roberts pled guilty to the offense of failing to surrender to serve his sentence for violating

18 U.S.C. §§ 1029(a)(4) and 1028(A)(a)(1).         His underlying offense “committed while on

release” is the same conduct for which the enhancement is imposed and the same conduct

addressed in § 3147. In pleading guilty, Roberts admitted that conduct. Roberts’s guilty plea

likely waived any challenge to the indictment, see United States v. Martin, 526 F.3d 926, 932

(6th Cir. 2008), but if it did not, it is indisputable that any alleged error was harmless, cf. United

States v. Yancy, 725 F.3d 596, 602 (6th Cir. 2013). The precise facts underlying the potential

application of § 3147 were charged in the indictment and Roberts admitted the veracity of those

facts. Likewise, Alleyne’s restriction on judge-found facts simply does not apply where the

defendant has admitted those facts. See, e.g., id. at 601–02.




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United States v. Roberts

       Moreover, Alleyne does not apply to facts that increase a defendant’s advisory Guidelines

range. See, e.g., United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014) (“Alleyne dealt with

judge-found facts that raised the mandatory minimum sentence under a statute, not judge-found

facts that trigger an increased guidelines range . . . .”); United States v. Johnson, 732 F.3d 577,

584 (6th Cir. 2013).

       For these reasons, we affirm.




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