The Lawletter Vol 36 No 5
The Third Circuit Court of Appeals recently became the first federal appellate court to consider whether 18 U.S.C. § 3147 allows a federal district court to impose a sentence that exceeds the statutory maximum sentence for the underlying crime. Section 3147 requires a sentence to be enhanced when the crime of conviction was committed while the defendant was on pretrial release from another federal charge. In United States v. Lewis, 660 F.3d 189 (3d Cir. 2011), the court also addressed whether the district court had erred in permitting the defendant to be convicted of an offense under § 3147, rather than having § 3147 be considered as a sentencing enhancement.
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. The statute is implemented through § 3C1.3 of the Federal Sentencing Guidelines, which states: "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.
In Lewis, the defendant had been charged with one count of carjacking in violation of 18 U.S.C. § 2119, one count of possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and one count of committing an offense while on pretrial release in violation of 18 U.S.C. § 3147(1). The defendant was convicted of being a felon in possession of ammunition and committing a felony while on pretrial release. Although the maximum sentence for being a felon in possession of ammunition is 10 years, with the addition of the three offense levels under U.S.S.G. § 3C1.3, the advisory sentencing range was 140 to 175 months, and the court sentenced the defendant to 138 months. On appeal, the defendant challenged the sentence on the grounds that it exceeded the statutory maximum for being a felon in possession of ammunition and that § 3147 was an enhancement statute, not an offense. The court reviewed the sentence for plain error.
The court of appeals concluded that the clear and unambiguous language of § 3147 expressed the intent of Congress to increase the maximum sentence for the underlying offense by adding up to 10 years "in addition to the sentence prescribed for the offense." Although it was unnecessary to look to the legislative history, the court opined that, given the clarity of the statutory language, were it to consider the history, it would find little support for the defendant's argument that Congress had intended to add up to 10 years to a sentence as long as the total sentence remained within the statutory maximum for the underlying crime. The note to U.S.S.G. § 3C1.3 did not support the defendant's position either. The court found that cases from other circuits, relied on by the defendant, were dicta or supportive of its holding.
Nonetheless, the Third Circuit found that the district court had committed plain error in treating § 3147 as a separate offense instead of a sentence enhancement statute. Accordingly, the court remanded the case to the district court with instructions to vacate the conviction for the § 3147 violation and then to revise the judgment to reflect two consecutive terms of imprisonment, one for the felon-in-possession count and one under § 3147. The court also authorized the district court to sentence the defendant to a different term of imprisonment if deemed appropriate. Otherwise, the 138-month sentence would stand.
18 U.S.C. § 3147, Third Circuit, sentence exceeding statutory maxiumum for underlying crime, implemented through U.S.S.G. § 3C1.3, § 3147 not a separate offense