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It Is Not Good To Commit New Crimes While On Pretrial Release

Congress is odd. In 1984 it made a law so urgent that some of its language was only just now interpreted.

As a starting point, Congress thinks (or, more accurately, thought) that it’s really bad to commit a crime while on pretrial release for another crime. So it passed 18 U.S.C. § 3147.

Here’s what section 3147 says:

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.

As I read that, it isn’t clear – to me at least – whether section 3147 is a new crime that someone commits when they commit some other crime while on pretrial release* or whether it just enhances the penalty for the crime that was committed.

Capital Building.jpgThough, admittedly, the title of section is “Penalty for an offense committed while on release” which is kind of a big hint.

How to read section 3147 was at issue in the Third Circuit’s recent opinion in United States v. Melvin Lewis.

Mr. Lewis was on pretrial release, when he came to be charged with carjacking, possession of a firearm by a convicted felon, and a violation of section 3147. The indictment listed three counts, and a violation of section 3147 was one of the counts.

Mr. Lewis went to trial. He was acquitted of the carjacking offense, but convicted of the felon-in-possession charge. He was also found guilty by the jury of the charge under section 3147.

His guidelines range put him above the statutory maximum for the felon in possession charge. So, the question was, does Mr. Lewis’s statutory maximum increase under section 3147(1), or does Mr. Lewis’s felon in possession conviction top out at the statutory maximum of 10 years, then he gets whatever he gets for the violation of 3147.

The Third Circuit held that section 3147 is a sentencing enhancement, not a separate crime. It increases the statutory maximum by the amount set out in the section. So, for Mr. Lewis, it increases his statutory maximum to 20 years, instead of the 10 he should have faced on the felon-in-possession offense.

But, because Mr. Lewis was “convicted” of violation 3147, his case was remanded, so that the district court could remove the $100 special assessment – a way of collecting court costs that is levied on every conviction – for Mr. Lewis’s conviction for a section 3147 violation.

* Crimes that depend on other crimes being committed may sound odd, but they exist in federal law. There’s 18 U.S.C. § 924(c) that makes it a felony with a five-year mandatory minimum for possessing a gun in connection with drug dealing or a violent crime. There’s also 18 U.S.C. § 1028A that creates a charge with a two-year mandatory minimum for having anyone’s identity information – like a social security number – in connection with any other federal felony. For both a 924(c) and a 1028A, the mandatory minimum sentence is consecutive to the sentence on the underlying crime. These things are vicious.

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