USA v. Randell Robert
OPINION filed : AFFIRMED, decision not for publication. Julia Smith Gibbons and David W. McKeague, Circuit Judges; and David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0808n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Oct 24, 2014
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
WESTERN DISTRICT OF
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.
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
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.
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.
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).
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
(2) a term of imprisonment of not more than one year if the offense is a
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.
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
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.
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.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?