United States of America v. Karyna Yolanda Ordonez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4996
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KARYNA YOLANDA ORDONEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:07-cr-00056-JBF)
Argued: October 30, 2008 Decided: January 9, 2009
Before MICHAEL and AGEE, Circuit Judges, and Martin K.
REIDINGER, United States District Judge for the Western District
of North Carolina, sitting by designation.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Stephen Westley Haynie,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Keith Loren Kimball, Assistant Federal Public
Defender, Norfolk, Virginia, for Appellant. Chuck Rosenberg,
United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
I.
Karyna Yolanda Ordonez pled guilty to two counts of
violating 18 U.S.C. § 1029(a)(2) (2008) and was sentenced to a
term of 21 months’ imprisonment by the United States District
Court for the Eastern District of Virginia. That court granted
her request to self-surrender and ordered that Ordonez surrender
on December 18, 2006 for service of her sentence. Ordonez
failed to do so and was later arrested in New York.
Upon being indicted for violating 18 U.S.C. § 3146(a)(2)
(2008) (failure "to surrender for service of sentence pursuant
to a court order") and 18 U.S.C. § 3147 (2008) (offense
committed while on release), Ordonez pled guilty, without a plea
agreement, on June 6, 2007.
In preparing the presentence report, the probation officer
relied on U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2J1.6
(2007)1 to assess an offense level of 9 which, with a criminal
history category of IV, resulted in a Guidelines range of 12 to
18 months. U.S.S.G. § 2J1.6, entitled “Failure to Appear by
Defendant,” is the Guidelines provision applicable to violations
1 This opinion references both statutes and provisions of
the United States Sentencing Guidelines. To avoid confusion,
references to statutes will be by section number while
references to provisions of the Sentencing Guidelines will be by
U.S.S.G. and the relevant section number.
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of § 3146. The Government objected to the presentence report by
contending that Ordonez should receive a three-level enhancement
of the offense level pursuant to U.S.S.G. § 3C1.3. The
Government argued that § 3147 “plainly applies,” and cited this
Court's decision in United States v. Fitzgerald, 435 F.3d 484
(4th Cir. 2006) as controlling authority for imposition of the
enhancement. Ordonez objected to the proposed enhancement on the
basis of Application Note 2 to § 2J1.6 ("Application Note 2"),
which provides in relevant part: “[f]or offenses covered under
this section, Chapter Three, Part C (Obstruction) does not
apply, unless the defendant obstructed the investigation or
trial of the failure to appear count.” U.S.S.G. § 2J1.6 n.2.
U.S.S.G § 3C1.3 is contained in Chapter Three, Part C of the
Sentencing Guidelines.
In the final presentence report submitted to the district
court, the probation officer adopted the Government’s position
and added the U.S.S.G § 3C1.3 enhancement to determine the
applicable Guideline range. Based on this change, an offense
level of 12 was attributed to Ordonez, which resulted in an
increased Guidelines range of 21 to 27 months. The district
court determined the U.S.S.G. § 3C1.3 enhancement should apply
because “even though there is an application note in a different
place, that the Fitzgerald case would still apply.” J.A. 50.
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The district court sentenced Ordonez to a term of 21
months’ imprisonment, three months longer than the high point of
her Guidelines range without the U.S.S.G. § 3C1.3 enhancement.
In addition, the court imposed a three year term of supervised
release. Ordonez requested that the sentencing order specify
that the term of supervised release run concurrent to a
previously-imposed term, but the district court refused to do so
and indicated from the bench that the term would run consecutive
to any previously imposed term of supervised release. Ordonez
timely filed an appeal of the sentencing order and we have
jurisdiction pursuant to 28 U.S.C. § 1291 (2008).
II.
Ordonez presents two issues on appeal.2 First, she asserts
the district court erred when it ordered the three year term of
supervised release to run consecutive to a previously imposed
term of supervised release instead of concurrently. Second, she
2 Ordonez raises a third issue by asserting the sentencing
enhancement under § 3147 cannot apply in sentencing upon
conviction of violating § 3146. That issue is directly
controlled by the decision of this Court in Fitzgerald, which
this panel has no authority to revisit. “[A] panel of this
court cannot overrule, explicitly or implicitly, the precedent
set by a prior panel of this court. Only the Supreme Court or
this court sitting en banc can do that.” Scotts Co. v. United
Indus. Corp., 315 F.3d 264, 272 n.2 (4th Cir. 2002) (quoting
Mentavlos v. Anderson, 249 F.3d 301, 312 n.4 (4th Cir. 2001)).
Accordingly, we do not address this issue further.
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argues the district court erred in its calculation of the
Guidelines range by applying the enhancement under U.S.S.G. §
3C1.3. We address each issue in turn.
A. Term of Supervised Release
Ordonez and the Government agree that the district court
erred in ordering the term of supervised release to run
consecutive to the previously-imposed term of supervised release
instead of concurrently. We agree the district court erred in
doing so.
“‘In a statutory construction case, the beginning point
must be the language of the statute, and when a statute speaks
with clarity to an issue[,] judicial inquiry into the statute's
meaning, in all but the most extraordinary circumstance, is
finished.’” Fitzgerald, 435 F.3d at 486 (quoting Estate of
Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992)). 18
U.S.C. § 3624(e) provides that a “term of supervised release . .
. runs concurrently with any Federal, State, or local term of .
. . supervised release . . . for another offense to which the
person is subject or becomes subject during the term of
supervised release.” The language of the statute unequivocally
states that multiple terms of supervised release, even when
imposed at different times, are to run concurrently, not
consecutively.
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In the case at bar, the district court's written sentencing
order did not specifically state that the term of supervised
release for the § 3146 conviction would run consecutive to or
concurrent with any previously-imposed term. However, the
record shows that the district court explicitly refused the
defendant's oral request at the sentencing hearing for the term
of supervised release to run concurrent with the previously
imposed term. While a court speaks through its judgments and
orders, Murdaugh Volkswagen, Inc. v. First Nat’l Bank, 741 F.2d
41, 44 (4th Cir. 1984), in criminal cases the general rule is
that the oral pronouncement of the sentence governs. Rakes v.
United States, 309 F.2d 686, 687-88 (4th Cir. 1962). Thus, we
view the district court's imposition of the term of supervised
release as running consecutive to any other term by virtue of
the bench ruling.
In light of the plain language of § 3624(e), that ruling
was in error because the statute mandates that the term of
supervised release for the present offense run concurrent with
the term imposed for any previous offense. Accordingly, the
judgment of the district court imposing a consecutive term of
supervised release is reversed and the case remanded for the
entry of a corrected order in conformity with § 3624(e).
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B. U.S.S.G. § 3C1.3 Enhancement
“We review the district court's interpretation of the
applicable sentencing guidelines de novo and its factual
findings for clear error.” United States v. Quinn, 359 F.3d
666, 679 (4th Cir. 2004). Our interpretation of a statute, as a
matter of law, is de novo. United States v. NJB, 104 F.3d 630,
632-33 (4th Cir. 1997).
In this case, no issue is raised as to the calculation
under U.S.S.G. § 2J1.6, which yielded a Guidelines range of 12
to 18 months. The issue before us comes from the addition of
the three-level enhancement under U.S.S.G. § 3C1.3, which set
the Guidelines range at 21 to 27 months. Ordonez contends the
district court erred in doing so because, in her view,
Application Note 2 bars the enhancement.
We begin with the terms of the applicable statute, 18
U.S.C. § 3147, which plainly states that “[a] person convicted
of an offense committed while released . . . shall be sentenced,
in addition to the sentence prescribed for the offense to (1) a
term of imprisonment . . . .” The applicable Sentencing
Guideline to implement the statutory sentencing requirement of §
3147 was formerly U.S.S.G. § 2J1.7, but in 2006 the U.S.
Sentencing Commission amended the Guidelines to move this
provision to U.S.S.G. § 3C1.3. See U.S.S.G. App. C, Amend. 684
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(effective November 1, 2006). As noted earlier, U.S.S.G.
§ 3C1.3 is contained in Chapter Three, Part C of the Guidelines.
Application Note 2 provides that “[f]or offenses covered
under this section, [a failure to appear conviction] Chapter
Three, Part C (Obstruction) does not apply, unless the defendant
obstructed the investigation or trial of the failure to appear
count.” Ordonez contends Application Note 2, on its face,
limits the application of a Chapter Three, Part C adjustment,
including U.S.S.G. § 3C1.3, to those instances when the
defendant obstructed the investigation or trial of the failure
to appear count. She argues that the fortuitous move of the §
3147 enhancement under the Guidelines from U.S.S.G. § 2J1.7 to §
3C1.3 now bars that enhancement in her case. We disagree.
In Fitzgerald, this Court held that the plain language of §
3147 requires the imposition of a consecutive additional
sentence for any crime committed while on release. See
Fitzgerald, 435 F.3d at 486 (“Section 3147 plainly applies,
without exception, to offenses committed while on release under
Chapter 207 of Title 18.”). As this Court recognized in
Fitzgerald, § 3147 applies even in a situation where having been
on release was a necessary component of the crime committed.
The defendant in Fitzgerald, for instance, failed to appear for
his sentencing. He could not have failed to appear had he not
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been on release, yet § 3147 was held to apply where the
underlying crime was a violation of § 3146. See id.
In Fitzgerald, the defendant did not obstruct the
investigation or the trial, yet this Court held that the
sentencing enhancement applied because § 3147 dictated that it
must. Section 3147 has not changed in any respect since our
decision in Fitzgerald. To adopt the view propounded by Ordonez
would necessarily mean that a defendant in a position identical
to that of the defendant in Fitzgerald would now not be subject
to the same statutory enhancement.
The Supreme Court has held that “commentary in the
Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading
of, that guideline.” Stinson v. United States, 508 U.S. 36, 38
(1993) (emphasis added). Indeed, the Sentencing Commission
explicitly recognized this limitation on the effect of the
Application Notes by incorporating this language from Stinson
into its commentary to U.S.S.G. § 1B1.7, entitled “Significance
of Commentary.” Application Note 2 is simply inconsistent with
§ 3147 because it would limit the statutory enhancement only to
cases where there is obstruction of the investigation or the
trial.
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The plain language of new Guideline § 3C1.3 dictates that a
three-level enhancement shall be added “[i]f a statutory
sentencing enhancement under 18 U.S.C. § 3147 applies.” U.S.S.G.
§ 3C1.3 (emphasis added). Application Note 2 is thus also
inconsistent with the plain language of U.S.S.G. § 3C1.3 in that
there is nothing in that Guideline indicating that it is to be
limited to only certain offenses committed while on release.
Thus, to read Application Note 2 as limiting the application of
§ 3C1.3 would be inconsistent with the plain terms of § 3147 and
the Guideline. Accordingly, Application Note 2 must yield to
the statute and U.S.S.G. § 3C1.3.
There is nothing in Amendment 684, which moved U.S.S.G. §
2J1.7 to § 3C1.3, indicating that the Sentencing Commission
intended to limit U.S.S.G. § 3C1.3 by the previously-existing3
Application Note 2 to § 2J1.6. In adopting Amendment 684, the
Sentencing Commission provided a “Reason for Amendment” that
reads, in pertinent part:
[T]he amendment creates a new guideline at § 3C1.3
(Commission of Offense While on Release), which
provides a three-level adjustment in cases in which
the statutory sentencing enhancement at 18 U.S.C. §
3147 (Penalty for an offense committed while on
release) applies. The Amendment also deletes § 2J1.7
(Commission of Offense While on Release), the Chapter
Two guideline to which the statutory enhancement at 18
3 The Application Note was adopted with the original
Sentencing Guidelines, effective in 1987.
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U.S.C. § 3147 had been referenced prior to the
amendment. Despite its reference in Appendix A
(Statutory Index), 18 U.S.C. §3147 is not an offense
of conviction and thus does not require reference in
Appendix A. Creating a Chapter Three adjustment for
18 U.S.C. § 3147 cases ensures the enhancement is not
overlooked and is consistent with other adjustments in
Chapter Three, all of which apply to a broad range of
offenses.
United States Sentencing Guidelines Manual, Supp. App. C at 158
(2006) (Amendment 684) (emphasis added). This passage reflects
no intent on the part of the Sentencing Commission to limit the
application of the Guideline implementing § 3147. On the
contrary, by moving this Guideline to Chapter Three, the
Commission intended to insure that a court would not “miss” the
three-level enhancement for offenses committed while on release,
such as Ordonez’s failure to surrender for her service of
sentence. We note that the Eleventh Circuit has reached a
similar conclusion in United States v. Clemendor, 237 Fed. Appx.
473 (11th Cir. 2007) (unpublished), regarding the effect of
Amendment 684 on a § 3147 enhancement in sentencing upon
conviction of violating § 3146: “Indeed, there is no indication,
express or implied, that the amendment was made to affect § 3146
cases.” Id. at 480.
In summary, this Court held in Fitzgerald that § 3147
requires a sentencing enhancement in all cases where the offense
was committed while on release, “without exception.”
Fitzgerald, 435 F.3d at 486. Guideline § 3C1.3 is the Guideline
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13
that has been adopted to implement that mandatory sentencing
enhancement. Any Guidelines calculation that fails to include
this enhancement where the offense was committed while on
release would, therefore, be in error. Application Note 2
cannot override these clear statutory and Guideline
requirements. For these reasons, we hold that the three-level
enhancement of U.S.S.G. § 3C1.3 was correctly applied in this
case.
III.
Accordingly, we affirm the district court’s calculation of
the applicable Guideline range and the sentence of
incarceration, but reverse and remand the case for entry of a
proper judgment regarding the term of supervised release.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

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