### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ Nos. 15

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- 1271

U NITED S TATES OF A MERICA , Plaintiff

- Appellee ,

v.

D ESTRY J. M ARCOTTE , Defendant

- Appellant

.

____________________ Appeal s from the United States District Court for the Southern District of Illinois. Nos. 13 CR 30053 and 14 CR 30107

— Michael J. Reagan , Judge

.

____________________
A RGUED F EBRUARY 12, 2016

— D ECIDED J UNE 13 , 2016

____________________

Before W OOD , Chief Judge , R OVNER , Circuit Judge , and B LAKEY , District Judge

. ∗
B LAKEY , District Judge

. Five of our sister courts have held that 18 U.S.C. §3147, through §3C1.3 of the Sentencing Guidelines, can enhance a sentence fo r the crime of failing to

∗ Of the Northern District of Illinois, sitting by designation.2 No s

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appear under 18 U.S.C. §3146

. United States v. Duong , 665 F.3d 364 (1st Cir. 2012) ; United States v. Fitzgerald , 435 F.3d 484 (4th Cir. 2006) ; United States v. Dison , 573 F.3d 204 (5th Cir. 2009) ; United States v. Benson , 134 F.3d 787 (6th Cir. 1998) ; and United States v. Rosas , 615 F.3d 1058 (9th Cir. 2010) . Two others have reached the same conclusion, albeit in unpublished decisions. United States v. Gause , 536 Fed. Appx. 234 (3d Cir. 2013) (unpublished); United States v. Clemend or , 237 Fed. Appx. 473 (11th Cir. 2007) (unpublished). None has r eache d a different conclusion. Against this consensus, Appellant Destry J. Marcotte seeks to chart new territory in the Seventh Circuit on an issue of first impression here. We decline that invitation and AFFIRM the district court’s sentence.

I On March 19, 2013, a Federal Grand Jury returned a five

count Indictment charging Marcotte with: (1) four counts of making a false claim for federal tax refunds , in violation of 18 U.S.C. §287 (Counts 1 to 4); and (2) one count of falsely pretending to be an officer of the United States to demand a thing of value , in violation of 18 U.S.C. § 912 (Count 5). On August 26, 2013, the district court , acting on the Gove rnment’s motion , dismissed Count 5 of the Indictment.

The tax fraud case went to trial and, on October 8, 2013, the jury returned a guilty verdict against Marcotte on Counts 1 to 4. T he district court set the sentencing hearing for January 17, 2014, and la ter reset the hearing for May 1, 2014. In the interim, on November 7, 2014 , the district court allowed Marcotte to be released on home confinement with electronic monitoring pending sentencing.No s

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When Marcotte failed to show for his May 1, 2014 sentencing hearing, the district court issued a warrant for his arrest. On May 21, 2014, Marcotte was indicted for failure to appear for sentencing , in viola tion of 18 U.S.C. §3146(a)(1). Section 3146(a)(1) punishes the failure to appear before a court as required b y a condition of release.

The U.S. Marshals Service arrested Marcotte on September 22, 2014. On October 30, 2014, Marcotte pled guilty to the failure to appear charge. The district court scheduled the sentencing hearing for February 4, 2015, on both the t ax fraud and failure to appear cases. On November 17, 2014, the probation office submitted an initial presentence report (“ PSR ” ) addressing Marcotte ’ s two criminal cases. The initial PSR , in relevant part, recommended a 2

- level enhancement under §3C1.1 of the Sentencing Guidelines, and a 3

- level enhancement under §3C1.3 of the Sentencing Guidelines. On December 31, 2014, Marcotte filed his objections to the initial PSR, contesting the 3

- level enhancement under §3C1.3

. Section 3C1.1 requires a 2

- level enhancement when a defendant “ w illfully obstructed or impeded ... [the] sentencing of the instant offense of conviction. ” Application Note 4 to §3C1.1 of the Sentencing Guidelines provides examples of covered conduct, including “ willfully failing to appear, as ordered, for a judicial proceeding. ” U.S.S.G. §3C1.1 cmt. 4(E). Additionally, Section 3C1.3 requires a 3

- level enha ncement for violations of 18 U.S.C. §3147. Section 3C1.3 states in full:4 No s

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If a statutory sentencing enhancement under 18 U.S.C. § 3147 applies, increase the offense level by 3 levels.

U.S.S.G. §3C1.3. Title 18 U.S.C. §3147 , in turn, provides that a defen dant convicted of an offense while released shall be subject to an additional punishment of no more than 10 years. Section 3147 states in relevant part:A person convicted of an offense committed while released under this chapter [Chapter 207] shall be sentenced, in addition to the sentence prescribed for the offense to

— (1) a term of imprisonment of not more than ten ye ars if the offense is a felony[.] On January 13, 2015, the Probation Office issued the final PSR. The final PSR ’s recommendations set fort h a criminal history category of I for Marcotte

. Applying §§3D1.2(c) and (d) of the Sentencing Guidelines, the final PSR grouped the four counts from the tax fraud case with the single count from the failure to appear case , and calculated a total offense l evel of 27. The final PSR broke down the total offense level as follows:

Category Description Level

Base Level Tax fraud in violation of 18 U.S.C. § 287. U.S.S.G. §§ 2T1.1 and 2T4.1. 20

Specific Offense Characteristics Marcotte failed to report a source of income exceeding $ 10,000 from criminal activity. U.S.S.G. § 2T1.1(b)(1). + 2No s

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Obstructing or Impeding the Administration of Justice Marcotte willfully obstructed orimpeded the administration of justice by failing to appear for his May 1, 2014 sentencing hearing. U.S.S.G. § 3C1.1. + 2

Commission of Offense While on Release Marcotte committed a new offense, that is, failure to appear under 18 U.S.C. § 3146(a)(1), while on release for four counts of tax fraud. 18 U.S.C. § 3147; U.S.S.G. § 3C1.3. + 3

On February 4, 2015, the district court held the consolidated sentencing hearing. Following the final PSR ’ s recommendation, the district court accepted the criminal history category of I and the total offense level of 27, resulting in an advisor y guideline sentence range of 70 to 87 months. The district court then imposed a 78

- month sentence, which fell within the advisory guideline range. The district court divided the sentence into: (1) concurrent 50

- month sentences for each of Counts 1 t hrough 4 of the tax fraud case; and (2) a consecutive 28

- month sentence f or the failure to appear case.The district court entered judgment on the failure to appear case on February 9, 2015 , and on the tax fraud case the next day. This timely appeal followed.

IIMarcotte raises a limited objection to his sentence, arguing that the district court erred by imposing the 3

- level enhancement under §3C1.3 of the Sentencing Guidelines. Had the district court struck the enhancement, Marcotte ’ s total offense level would have been 24 , resulting in a lower advisory guideline sentence range: 51 to 63 months. We review6 No s

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the district court’s legal interpretation and application of the Sentencing Guidelines de novo

. United States v. Jackson , 410 F.3d 939, 941 (7th Cir. 2005). Marcotte first argues that 18 U.S.C. §3147 (and §3C1.3 of the Sentencing Guidelines, in turn) do es not apply to him. When addressing questions of statutory interpretation, we begin with the text of the statute. Precision Industries, Inc. v. Qualitech Stee l SBQ, LLC , 327 F.3 d 537, 543

- 44 (7th Cir. 2003). When a statute is unambiguous, our inquiry “ starts and stops ” with the text. United States v. All Funds on Deposit with R.J. O’Brien & Associates , 783 F.3d 607, 622 (7th Cir. 2005) ; Precision Industries , 32 7 F.3d at 544

. Here, the statutory lang uage is plain and unambiguous. Section 3147 provides, without exception, that a defendant such as Marcotte “ convicted of an offense committed while released under this chapter [Chapter 207] shall ” be subject to

an additional punish ment of no more than 10 years. Not appearing for sentencing in violation of 18 U.S.C. §3146, of course, is an “offense” under Chapter 207 of Title 18, and it is “committed while released.” We see nothing unreasonable about this interpreta tion. Nor have any of our sister courts. Duong , 665 F.3d at 366

- 67; Rosas , 615 F.3d at 1064

- 65; Dison , 573 F.3d at 207

- 08; Fitzgerald , 435 F.3d at 486

- 87; Benson , 134 F.3d at 788 ; see also Gause , 536 Fed. Appx. at 236

- 37; Clemendor , 237 Fed. Appx. at 477

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. W e , in fact, credited three of these decisions in United States v. Rigsby , 501 Fed. Appx. 545, 550 (7th Cir. 2013) (unpublished). The plain and unambiguous language of the statute prevents us from proceeding to consider other canons of construction. I n re Baker , 430 F.3d 858, 860 (7th Cir. 2005). WeNo s

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need not consider the canon that a more specific statute receives precedence over a more general one. Likewise, we need not consider the rule of lenity , which requires that an ambiguous criminal statute be construed in favor of the defendant because criminal statutes must provide fair warning concerning conduct rendered illegal

. United States v. Patel , 778 F.3d 607, 618 (7th Cir. 2015)

. When a statute remains ambiguous even after considering its text, context, structure, history and purpose, then

— and only then

— the rule of lenity may apply. Barber v. Thomas , 560 U.S. 474, 488 (2010); Patel ,778 F.3d at 618. But that is not the case here. The rule of lenity is designed to help resolve ambiguities, not cr eate them. In sum, there is no need to venture beyond the text of §3147 in this case. Marcotte’s two remaining arguments also lack merit.Marcotte argues that the district court engaged in impermissible double counting by imposing two enhancements for the same mi sconduct

— his failure to appear. The Sentencing Guidelines, however, expressly permitcumulative guideline enhancements for the same misconduct. Under Application Note 4(B) to §1B1.1 of the Sentencing Guidelines, enhancements under Section 3 (and elsewhere) are applied “cumulatively” even when “triggered bythe same conduct.” Consider a defendant who shoots a police officer during the commission of a robbery. Such conduct, according to Application Note 4(B), may warrant both an injury enhancement u nder §2B3.1(b)(3) and an officialvictim adjustment under §3A1.2 of the Sentencing Guidelines. Thus, cumulative application of enhancements is the “default rule ... unless a specific guideline instructs other-8 No s

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wise.” United States v. Vizcarra , 668 F.3d 516, 52 0 (7th Cir. 2012).Here, the Sentencing Guidelines do not prohibit cumulative application of §3C1.1 and §3C1.3 (indeed, Marcotte cannot identify any contrary guideline), so the district court did not err in applying both. For the same reason, the Fifth a nd Ninth Circuits also have rejected the same double counting argument. Dison , 573 F.3d at 208; Rosas , 615 F.3d at 1065. Marcotte, believing that he has been twice punished for the same offense, last argues that imposing an enhancement under §3147 and §3 C1.3 of the Sentencing Guidelines violates the Double Jeopardy Clause of the Fifth Amendment. But Marcotte mistakes the sc ope of the Clause in two ways. First, the Supreme Court has historically found double jeopardy protections inapplicable to sentenci ng proceedings, refusing to construe sentence enhancements as additional punishments. Monge v. California , 524 U.S. 721, 728 (1998); see also Fitzgerald , 435 F.3d at 487 (analyzing Monge in the context of §3C1.3 of the Sentencing Guidelines). Here, §3147, as promulgated under §3C1.3 of the Sentencing Guidelines, creates a sentence enhancement. Dison , 573 F.3d at 209 ; Fitzgerald , 435 F.3d at 487; see generally United States v. Sturman , 49 F.3d 1275, 1283 (7th Cir. 1995) (describing what is now §3C1.3 as an “ enhancement”). Section 3C1.3 of the Sentencing Guidelines thus falls outside the purview of the Double Jeopardy Clause.
Second, even if §3147 can be construed as an additional punishment, the Double Jeopardy Clause only forbids the sentencing court from pr escribing greater punishment than Congress intended. Missouri v. Hunter , 459 U.S. 359, 365

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(1983); Boyd v. Boughton , 798 F.3d 490, 497

- 98 (7th Cir. 2015). It does not forbid, as Marcotte assumes, Congress from authorizing multiple punishments for the s ame conduct in the same proceeding

. Boyd , 798 F.3d at 497

- 98, 501 . As explainedabove, Congress, through §3147 and §3C1.3 of the Sentencing Guidelines, permits cumulative punishment s ba se d on a defendant’s failure to appear while released. See Rosas , 615 F.3d at 1065 (analyzing Missouri in the context of §3C1.3 ofthe Sentencing Guidelines, and reaching the same conclusion); Dison , 573 F.3d at 208 & n.18 (same). For completeness, we note the contrary views set forth by the dissents in Fitzgerald (4t h Circuit) and Benson (6th Circuit). We do not find the se compelling , however, in light of the plain language of 18 U.S.C. §3147 and the well

- settled rule that the Sentencing Guidelines are , by default, cumulative , absent express language to the contrary

. Underpinning both dissents is Simpson v. United States , 435 U.S. 6 (1978), a pre

- Guidelines case addressing two statutes that together created cumulative enhancements for the crime of robbery with a firearm: 18 U.S.C. §§924(c) and 2113(d). Wanting to avoid double jeopardy concerns, the Court in Simpson applied the interpretative principle that Congress is presumed to have intended the specific statute to take p recedence over the general one. In response to Simpson , Congress amended §924(c) to expressly per mit cumulative enhancements for committing a crime with a firearm. See Fitzgerald , 435 F.3d at489 (King, J., dissenting) (discussing the Congressional history of §924(c) ). No such amendments are necessary here , however, because Congress has already approv ed cumulative punishments as the “default rule” in the Sentencing Guidelines through Application Note 4(B) to §1B1.1. Vizcar-10 No s

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ra , 668 F.3d at 520. So the motivating concerns in Simpson are not present here.

T he district court did not err in imposing an enhancement under §3C1.3 of the Sentencing Guidelines. 1

III Today we become the sixth Court of Appeals to hold that18 U.S.C. §3147, through §3C1.3 of the Sentencing Guidelines, can enhance a sentence for the crime of failing to appear under 18 U.S.C. §314 6 . Accordingly, the district court’s sentence is AFFIRMED

.

1 Marcotte alternatively argues that the district court failed to properly apportion on the judgment form the 78

- month sentence between the underlying offense and the enhancement , as required by Application Note 1 to §3C1.3 of the Sentenc ing Guidelines. Not only did Marcotte fail to develop this argument, thereby waiving it, see United States v. Alhalabi , 443 F.3d 605, 611 (7th Cir. 2006), but also any error is harmless. See United States v. Wilson , 966 F.2d 243, 249 (7th Cir. 1992) (concl uding that a remand is not warranted when a mistake does not affect the district court’s selection of the sentence imposed).