US v. Karyna Ordonez

Filing 920090109

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4996

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KARYNA YOLANDA ORDONEZ, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:07-cr-00056-JBF)

Argued:

October 30, 2008

Decided:

January 9, 2009

Before MICHAEL and AGEE, Circuit Judges, and Martin K. REIDINGER, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.

ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Stephen Westley Haynie, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Keith Loren Kimball, Assistant Federal Public Defender, Norfolk, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:

I. Karyna Yolanda Ordonez pled guilty to two counts of

violating 18 U.S.C. § 1029(a)(2) (2008) and was sentenced to a term of 21 months' imprisonment by the United States District Court for the Eastern District of Virginia. That court granted

her request to self-surrender and ordered that Ordonez surrender on December 18, 2006 for service of her sentence. Ordonez

failed to do so and was later arrested in New York. Upon being indicted for violating 18 U.S.C. § 3146(a)(2) (2008) (failure "to surrender for service of sentence pursuant to a court order") and 18 U.S.C. § 3147 (2008) (offense

committed while on release), Ordonez pled guilty, without a plea agreement, on June 6, 2007. In preparing the presentence report, the probation officer relied on U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 2J1.6 (2007) 1 to assess an offense level of 9 which, with a criminal history category of IV, resulted in a Guidelines range of 12 to 18 months. U.S.S.G. § 2J1.6, entitled "Failure to Appear by

Defendant," is the Guidelines provision applicable to violations

This opinion references both statutes and provisions of the United States Sentencing Guidelines. To avoid confusion, references to statutes will be by section number while references to provisions of the Sentencing Guidelines will be by U.S.S.G. and the relevant section number. 3

1

of § 3146. The Government objected to the presentence report by contending that Ordonez should receive a three-level enhancement of the offense level pursuant to U.S.S.G. § 3C1.3. The

Government argued that § 3147 "plainly applies," and cited this Court's decision in United States v. Fitzgerald, 435 F.3d 484 (4th Cir. 2006) as controlling authority for imposition of the enhancement. Ordonez objected to the proposed enhancement on the basis of Application Note 2 to § 2J1.6 ("Application Note 2"), which provides in relevant part: "[f]or offenses covered under this section, unless Chapter the Three, Part C (Obstruction) the does not or

apply,

defendant

obstructed

investigation

trial of the failure to appear count."

U.S.S.G. § 2J1.6 n.2.

U.S.S.G § 3C1.3 is contained in Chapter Three, Part C of the Sentencing Guidelines. In the final presentence report submitted to the district court, the probation officer adopted the Government's position and added the U.S.S.G § 3C1.3 enhancement to determine the

applicable Guideline range.

Based on this change, an offense

level of 12 was attributed to Ordonez, which resulted in an increased Guidelines range of 21 to 27 months. The district

court determined the U.S.S.G. § 3C1.3 enhancement should apply because "even though there is an application note in a different place, that the Fitzgerald case would still apply." J.A. 50.

4

The

district

court

sentenced

Ordonez

to

a

term

of

21

months' imprisonment, three months longer than the high point of her Guidelines range without the U.S.S.G. § 3C1.3 enhancement. In addition, the court imposed a three year term of supervised release. that the Ordonez requested that the sentencing order specify term of supervised release run concurrent to a

previously-imposed term, but the district court refused to do so and indicated from the bench that the term would run consecutive to any previously imposed term of supervised release. timely filed an appeal of the sentencing order and Ordonez we have

jurisdiction pursuant to 28 U.S.C. § 1291 (2008).

II. Ordonez presents two issues on appeal. 2 First, she asserts

the district court erred when it ordered the three year term of supervised release to run consecutive to a previously imposed term of supervised release instead of concurrently. Second, she

Ordonez raises a third issue by asserting the sentencing enhancement under § 3147 cannot apply in sentencing upon conviction of violating § 3146. That issue is directly controlled by the decision of this Court in Fitzgerald, which this panel has no authority to revisit. "[A] panel of this court cannot overrule, explicitly or implicitly, the precedent set by a prior panel of this court. Only the Supreme Court or Scotts Co. v. United this court sitting en banc can do that." Indus. Corp., 315 F.3d 264, 272 n.2 (4th Cir. 2002) (quoting Mentavlos v. Anderson, 249 F.3d 301, 312 n.4 (4th Cir. 2001)). Accordingly, we do not address this issue further.

2

5

argues

the

district

court

erred

in

its

calculation

of

the

Guidelines range by applying the enhancement under U.S.S.G. § 3C1.3. We address each issue in turn.

A. Term of Supervised Release Ordonez and the Government agree that the district court erred in ordering the term of supervised release to run

consecutive to the previously-imposed term of supervised release instead of concurrently. doing so. "`In a statutory construction case, the beginning point We agree the district court erred in

must be the language of the statute, and when a statute speaks with clarity to an issue[,] judicial inquiry into the statute's meaning, in all but the most 435 extraordinary at 486 circumstance, Estate is of 18

finished.'"

Fitzgerald,

F.3d

(quoting

Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992)).

U.S.C. § 3624(e) provides that a "term of supervised release . . . runs concurrently with any Federal, State, or local term of . . . supervised release . . . for another offense to which the person is subject or becomes subject during the term of

supervised release." states imposed that at multiple different

The language of the statute unequivocally terms of supervised are to run release, even when not

times,

concurrently,

consecutively.

6

In the case at bar, the district court's written sentencing order did not specifically state that the term of supervised release for the § 3146 conviction would run consecutive to or concurrent record with any previously-imposed district court term. explicitly However, refused the the

shows

that

the

defendant's oral request at the sentencing hearing for the term of supervised release to run concurrent with the previously

imposed term.

While a court speaks through its judgments and

orders, Murdaugh Volkswagen, Inc. v. First Nat'l Bank, 741 F.2d 41, 44 (4th Cir. 1984), in criminal cases the general rule is that the oral pronouncement of the sentence governs. United States, 309 F.2d 686, 687-88 (4th Cir. 1962). Rakes v. Thus, we

view the district court's imposition of the term of supervised release as running consecutive to any other term by virtue of the bench ruling. In light of the plain language of § 3624(e), that ruling was in error because the statute mandates that the term of

supervised release for the present offense run concurrent with the term imposed for any previous offense. Accordingly, the

judgment of the district court imposing a consecutive term of supervised release is reversed and the case remanded for the entry of a corrected order in conformity with § 3624(e).

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B. U.S.S.G. § 3C1.3 Enhancement "We applicable review the district court's de interpretation novo and its of the

sentencing

guidelines

factual

findings for clear error." 666, 679 (4th Cir. 2004).

United States v. Quinn, 359 F.3d Our interpretation of a statute, as a

matter of law, is de novo. United States v. NJB, 104 F.3d 630, 632-33 (4th Cir. 1997). In this case, no issue is raised as to the calculation under U.S.S.G. § 2J1.6, which yielded a Guidelines range of 12 to 18 months. The issue before us comes from the addition of

the three-level enhancement under U.S.S.G. § 3C1.3, which set the Guidelines range at 21 to 27 months. district court erred in doing so Ordonez contends the in her view,

because,

Application Note 2 bars the enhancement. We begin with the terms of the applicable statute, 18

U.S.C. § 3147, which plainly states that "[a] person convicted of an offense committed while released . . . shall be sentenced, in addition to the sentence prescribed for the offense to (1) a term of imprisonment . . . ." The applicable Sentencing

Guideline to implement the statutory sentencing requirement of § 3147 was formerly U.S.S.G. § 2J1.7, the See but in 2006 to the move U.S. this

Sentencing

Commission

amended

Guidelines

provision to U.S.S.G. § 3C1.3.

U.S.S.G. App. C, Amend. 684

8

(effective

November

1,

2006).

As

noted

earlier,

U.S.S.G.

§ 3C1.3 is contained in Chapter Three, Part C of the Guidelines. Application Note 2 provides that "[f]or offenses covered under this section, [a failure to appear conviction] Chapter Three, Part C (Obstruction) does not apply, unless the defendant obstructed the investigation or trial of the failure to appear count." Ordonez contends Application Note 2, on its face,

limits the application of a Chapter Three, Part C adjustment, including U.S.S.G. § 3C1.3, to those instances when the

defendant obstructed the investigation or trial of the failure to appear count. She argues that the fortuitous move of the §

3147 enhancement under the Guidelines from U.S.S.G. § 2J1.7 to § 3C1.3 now bars that enhancement in her case. We disagree.

In Fitzgerald, this Court held that the plain language of § 3147 requires for the any imposition crime at of a consecutive on additional See

sentence

committed 486

while

release. plainly

Fitzgerald,

435

F.3d

("Section

3147

applies,

without exception, to offenses committed while on release under Chapter 207 of Title 18."). As this Court recognized in

Fitzgerald, § 3147 applies even in a situation where having been on release was a necessary component of the crime committed. The defendant in Fitzgerald, for instance, failed to appear for his sentencing. He could not have failed to appear had he not

9

been

on

release,

yet

§

3147

was

held

to

apply

where

the

underlying crime was a violation of § 3146. In Fitzgerald, or the the defendant yet did

See id. not obstruct held that the the

investigation

trial,

this

Court

sentencing enhancement applied because § 3147 dictated that it must. Section 3147 has not changed in any respect since our To adopt the view propounded by Ordonez

decision in Fitzgerald.

would necessarily mean that a defendant in a position identical to that of the defendant in Fitzgerald would now not be subject to the same statutory enhancement. The Supreme Court has held that "commentary in the

Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States, 508 U.S. 36, 38 (1993) (emphasis added). this Indeed, the Sentencing on the Commission of the

explicitly

recognized

limitation

effect

Application Notes by incorporating this language from Stinson into its commentary to U.S.S.G. § 1B1.7, entitled "Significance of Commentary." Application Note 2 is simply inconsistent with

§ 3147 because it would limit the statutory enhancement only to cases where there is obstruction of the investigation or the trial.

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The plain language of new Guideline § 3C1.3 dictates that a three-level enhancement shall be added "[i]f a statutory

sentencing enhancement under 18 U.S.C. § 3147 applies." U.S.S.G. § 3C1.3 (emphasis added). Application Note 2 is thus also

inconsistent with the plain language of U.S.S.G. § 3C1.3 in that there is nothing in that Guideline indicating that it is to be limited to only certain offenses committed while on release. Thus, to read Application Note 2 as limiting the application of § 3C1.3 would be inconsistent with the plain terms of § 3147 and the Guideline. Accordingly, Application Note 2 must yield to

the statute and U.S.S.G. § 3C1.3. There is nothing in Amendment 684, which moved U.S.S.G. § 2J1.7 to § 3C1.3, indicating that the Sentencing Commission

intended to limit U.S.S.G. § 3C1.3 by the previously-existing 3 Application Note 2 to § 2J1.6. Sentencing Commission provided In adopting Amendment 684, the a "Reason for Amendment" that

reads, in pertinent part: [T]he amendment creates a new guideline at § 3C1.3 (Commission of Offense While on Release), which provides a three-level adjustment in cases in which the statutory sentencing enhancement at 18 U.S.C. § 3147 (Penalty for an offense committed while on release) applies. The Amendment also deletes § 2J1.7 (Commission of Offense While on Release), the Chapter Two guideline to which the statutory enhancement at 18
3

The Application Note was adopted Sentencing Guidelines, effective in 1987.

with

the

original

11

U.S.C. § 3147 had been referenced prior to the amendment. Despite its reference in Appendix A (Statutory Index), 18 U.S.C. §3147 is not an offense of conviction and thus does not require reference in Appendix A. Creating a Chapter Three adjustment for 18 U.S.C. § 3147 cases ensures the enhancement is not overlooked and is consistent with other adjustments in Chapter Three, all of which apply to a broad range of offenses. United States Sentencing Guidelines Manual, Supp. App. C at 158 (2006) (Amendment 684) (emphasis added). This passage reflects

no intent on the part of the Sentencing Commission to limit the application contrary, of by the moving Guideline this implementing to § 3147. On the the

Guideline

Chapter

Three,

Commission intended to insure that a court would not "miss" the three-level enhancement for offenses committed while on release, such as Ordonez's We note failure that to surrender Eleventh for her has service reached of a

sentence.

the

Circuit

similar conclusion in United States v. Clemendor, 237 Fed. Appx. 473 (11th Cir. 684 2007) on a (unpublished), § 3147 regarding in the effect of

Amendment

enhancement

sentencing

upon

conviction of violating § 3146: "Indeed, there is no indication, express or implied, that the amendment was made to affect § 3146 cases." In Id. at 480. summary, this Court held in Fitzgerald that § 3147

requires a sentencing enhancement in all cases where the offense was committed while on release, "without exception."

Fitzgerald, 435 F.3d at 486.

Guideline § 3C1.3 is the Guideline

12

that has been adopted to implement that mandatory sentencing enhancement. this Any Guidelines calculation that fails to include where the be offense in was committed while Note on 2

enhancement would,

release cannot

therefore, these

error.

Application and

override

clear

statutory

Guideline

requirements.

For these reasons, we hold that the three-level

enhancement of U.S.S.G. § 3C1.3 was correctly applied in this case.

III. Accordingly, we affirm the district court's calculation of the applicable Guideline range and the sentence of

incarceration, but reverse and remand the case for entry of a proper judgment regarding the term of supervised release.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

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