NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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No. 12-2326

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UNITED STATES OF AMERICA

v.

LEVON GAUSE,

 Appellant

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 3-11-cr-00006-001)

District Judge: Honorable Kim R. Gibson

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Submitted Under Third Circuit LAR 34.1(a)

September 10, 2013

Before: SMITH, GARTH, and SLOVITER, Circuit Judges

(Opinion Filed: September 12, 2013) 

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OPINION

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2

SLOVITER, Circuit Judge.

Levon Gause appeals the sentence imposed following his plea of guilty to failure 

to appear for a court proceeding, in violation of 18 U.S.C. § 3146. For the reasons that 

follow, we will affirm the judgment of sentence.1

I. 

Gause was released with electronic monitoring after pleading guilty to one count 

of drug distribution in violation of 21 U.S.C. § 841. When he failed to appear for 

sentencing, a grand jury indicted him for violating 18 U.S.C. § 3146(a)(1), which 

punishes “[w]hoever, having been released under this chapter knowingly [ ] fails to 

appear before a court as required by the conditions of release.” Gause was apprehended 

soon thereafter. He pled guilty to the § 3146 charge as well, and the two convictions 

were consolidated for sentencing. 

To determine Gause’s sentencing range under the 2011 Sentencing Guidelines 

(“Guidelines”), the District Court grouped the two counts, determined the base offense

level of the drug charge, and applied an obstruction-of-justice enhancement to account 

for the failure to appear. The Court then applied a separate enhancement pursuant to 18 

U.S.C. § 3147 and U.S.S.G. § 3C1.3 for conviction of an offense committed during 

release. The Court ultimately sentenced Gause to ninety months’ imprisonment, of which 

 1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate 

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3

twelve were attributable to the § 3146 offense and another twelve to the § 3147 

enhancement. 

This appeal relates solely to the portion of the sentence attributable to the failureto-appear offense and § 3147 enhancement. 

II.

Gause first claims that the District Court erred in applying § 3147. He argues that 

a § 3147 enhancement for commission of an offense while released does not apply when 

the only offense a defendant has committed is a § 3146 failure to appear. We exercise 

plenary review of the District Court’s interpretation of the law and Guidelines. See 

United States v. Richards, 674 F.3d 215, 218 (3d Cir. 2012). 2

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.

18 U.S.C. § 3147.

 2 This objection was raised below, contrary to the parties’ representations in briefing. 
4

Gause contends that failure to appear is not the kind of “offense” that § 3147 is 

meant to punish. Whether § 3147 applies to violations of § 3146 is a question of first

impression in our circuit. Seven of our sister circuits have held that it does. See United 

States v. Duong, 665 F.3d 364, 367 (1st Cir. 2012); United States v. Rosas, 615 F.3d 

1058, 1064-65 (9th Cir. 2010); United States v. Dison, 573 F.3d 204, 207-09 (5th Cir.

2009); United States v. Clemendor, 237 F. App’x 473, 478 (11th Cir. 2007); United

States v. Fitzgerald, 435 F.3d 484, 486-87 (4th Cir. 2006); United States v. Benson, 134 

F.3d 787, 788 (6th Cir. 1998). In general, they have reasoned that the terms of the statute 

are unambiguous. Section 3147 applies to defendants convicted of any “offense 

committed while released,” and violation of § 3146 is an offense that “is—and can only 

be—‘committed while released.’” Duong, 665 F.3d at 367. These decisions have held 

that, by its plain terms, § 3147 encompasses violations of § 3146 and must be enforced as 

written.

In the particular circumstances of this case, we agree. It is undisputed that Gause 

was “convicted of an offense committed while released.” We have repeatedly found

“that the language of § 3147 is clear and unambiguous,” United States v. Lewis, 660 F.3d 

189, 192 (3d Cir. 2011) (citing United States v. Di Pasquale, 864 F.2d 271, 280 (3d Cir. 

1988)), and Gause gives us no basis for reaching a different conclusion. His only 

argument is that § 3147 could be read to apply either to offenses “under this chapter 

[207]” or to persons released “under this chapter [207].” It is patently clear, however, 

that § 3147 is not limited to Chapter 207 offenses, but rather applies to persons released 
5

under Chapter 207 (“Release and Detention Pending Judicial Proceedings”). 18 U.S.C. 

Part II, Ch. 207. The ambiguity that Gause asserts does not exist.

“Where the statute is clear and unambiguous, the judicial inquiry is complete. . . .” 

Lewis, 660 F.3d at 193. Given the limited argument that Gause has presented, we cannot 

say that the District Court erred in applying § 3147 in this case.

3

III.

Secondly, Gause claims that the District Court erred in failing to consider whether 

the portion of his final sentence imposed for the § 3146 offense (including the § 3147 

enhancement) fell within the guideline range for that offense. Because he did not raise 

this objection below, we review for plain error. See Puckett v. United States, 556 U.S. 

129, 135 (2009); Fed. R. Crim. P. 52(b).

Gause is correct that the Guidelines commentary for § 3C1.3 – the provision that 

implements § 3147 – directs the sentencing court to ensure that the “total punishment” for 

the offense committed on release plus the § 3147 enhancement “is in accord with the 

 3 It is troubling that § 3147 imposes an additional penalty for a fact that is already an 

element of the § 3146 offense (that the offense is committed during release). While 

duplicative sentencing enhancements are presumptively valid, see United States v. Wong, 

3 F.3d 667, 670-71 (3d Cir. 1993), duplicative offenses raise double-jeopardy concerns 

and are presumed to be mutually exclusive, see Simpson v. United States, 435 U.S. 6, 15-

16 (1978) (refusing to apply duplicative offense statute “absent a clear and definite 

legislative directive”), superceded on other grounds by statute, Comprehensive Crime 

Control Act of 1984, Pub. L. No. 98-473, § 1005(a), 98 Stat. 2138-39. For constitutional 

purposes, any fact that increases statutory punishment constitutes an offense element 

rather than a mere enhancement. See, e.g., Alleyne v. United States, 133 S. Ct. 2151, 

2155 (2013). Section 3147 would thus pose a double-jeopardy problem if it resulted in 

punishment beyond the statutory maximum for § 3146. In Gause’s case, however, it did 

not. Furthermore, he has waived any argument on this front. See United States v. 

Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). 
6

[adjusted] guideline range for the offense committed while on release.” Id. cmt. n.1. 

This does not, however, require an explicit finding on the record. Even if it did, any error 

the District Court committed would be harmless because the portion of Gause’s sentence 

attributable to the § 3146 offense and § 3147 enhancement – twenty-four months – is 

actually below the applicable range for the offense.

4

IV.

 

For the foregoing reasons, we will affirm the judgment of sentence.

 4 When the underlying charge is punishable by more than fifteen years, as was the drug 

charge here, the offense level for 18 U.S.C. § 3146 is 15. See U.S.S.G. § 2J1.6. The § 

3C1.3 adjustment brings it to 18. Gause’s criminal history level is III. The applicable 

adjusted range is 33-41 months. See id. § 5A. Even without the adjustment, the range 

would be 24-30 months. Id.