                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0019n.06

                                            No. 14-5365
                                                                                           FILED
                           UNITED STATES COURT OF APPEALS                            Jan 07, 2015
                                FOR THE SIXTH CIRCUIT                            DEBORAH S. HUNT, Clerk


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



       BEFORE: SILER, GRIFFIN, and WHITE, Circuit Judges.

       PER CURIAM. In February 2013, Dewayne Danyelle Douglas was indicted on six

counts of manufacturing, possessing, and dealing in counterfeit U.S. currency, and related aiding

and abetting offenses. (2:13-cr-20049-1 (W.D. Tenn.), R. 1) While released on bond (see R.

11), Douglas passed two counterfeit U.S. twenty dollar bills. (2:13-cr-20336 (W.D. Tenn.), R. 1;

PSR ¶ 4) As a result, Douglas was indicted in this case with one count of passing counterfeit

U.S. currency in violation of 18 U.S.C. § 472. He pleaded guilty, and now challenges his

sentence.

       The district court determined that Douglas’s base offense level was nine (R.29 at 4). The

court added three levels under U.S.S.G. § 3C1.3 because the statutory sentencing enhancement

under 18 U.S.C. § 3147 applied, given that Douglas committed the instant offense while on

release in the other case (id. at 5, 9). The district court subtracted two levels for acceptance of

responsibility, resulting in a total offense level of ten (id. at 10). In addition, the court added two
No. 14-5365
United States v. Douglas


points to Douglas’s criminal history category determination, pursuant to § 4A1.1(d), for

committing the instant offense while under a “criminal justice sentence,” resulting in a criminal

history category of V.

       Douglas objected to the enhancement under § 3C1.3, and, alternatively, Douglas objected

to the two-point increase in his criminal history category determination. (R. 21, PID 23) The

court rejected both objections. Based on the total offense level of ten and a criminal history

category of V, the court calculated the Guidelines imprisonment range at 21 to 27 months (id. at

12). The district court sentenced him to 12 months in prison for the substantive offense and to a

consecutive 6-month term under § 3147, for a total of 18 months’ imprisonment.

       On appeal, Douglas raises two arguments: (1) the district court erred by applying the

three-level increase under § 3C1.3 because, citing Apprendi v. New Jersey, 530 U.S. 466 (2000),

the prosecution was required to allege in the indictment that he violated § 3147 and to prove the

charge beyond a reasonable doubt; and (2) the district court engaged in impermissible double

counting by using the same facts to increase both his total offense level under § 3C1.3 and his

criminal history score under § 4A1.1(d).      We review a district court’s interpretation and

application of the Guidelines de novo and its factual findings for clear error. United States v.

Jeross, 521 F.3d 562, 569 (6th Cir. 2008).

       Before turning to Douglas’s arguments, we note that the district court imposed a below-

Guidelines sentence of 18 months’ imprisonment, which is consistent with Douglas’s arguments.

Had the district court sustained Douglas’s objection to the three-point enhancement under

§ 3C1.3, the Guidelines range would have been 12 to 18 months’ imprisonment. And had the

court rejected his § 3C1.3 challenge but agreed with his alternative argument that the two



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No. 14-5365
United States v. Douglas


criminal history point increase was inappropriate, the Guidelines prison range would have been

15 to 21 months.

         Douglas’s first claim fails. In United States v. Roberts, No. 13-6554, 2014 WL 5394287

(6th Cir. Oct. 24, 2014), we rejected the same argument Douglas makes here. See id. at *1–3. In

particular, we note that the “precise facts underlying the potential application of § 3147 were

charged in the indictment and [Douglas] admitted the veracity of those facts” when he pleaded

guilty and declined to object to the presentence report’s factual findings. Id. at *3. (R.29 at 4;

PSR at ¶¶ 4, 6).     Apprendi’s prohibition on judicial factfinding does not apply where the

defendant has admitted those facts. See United States v. Yancy, 725 F.3d 596, 602 (6th Cir.

2013). In addition, Douglas’s sentence is well below the maximum sentence authorized by

§ 472.

         Douglas, moreover, had sufficient notice to justify § 3147’s application. A defendant

who signs bond papers that contain § 3147’s language receives sufficient notice that the

enhancement under the statute may be imposed. United States v. Ray, 20 F. App’x 340, 342 (6th

Cir. 2001) (citing United States v. Lewis, 991 F.2d 322, 323 (6th Cir. 1993)). Douglas’s signed

bond papers included the following statement:

         While on release, if you commit a federal felony offense the punishment is an
         additional prison term of not more than ten years and for a federal misdemeanor
         offense the punishment is an additional prison term of not more than one year.
         This sentence will be consecutive (i.e., in addition to) any other sentence you
         receive.

(2:13-cr-20049, PID 30). In addition, Douglas received notice through the presentence report.

See United States v. Stovall, 337 F.3d 570, 573 (6th Cir. 2003).

         Douglas’s alternative claim that the district court engaged in impermissible double

counting likewise fails. Because a defendant’s offense level and criminal history category are

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United States v. Douglas


intended to reflect different concerns, a district court may use the same facts to increase both the

offense level and the criminal history score. See United States v. Crace, 207 F.3d 833, 838 (6th

Cir. 2000).

       Accordingly, we AFFIRM Douglas’s sentence.




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