Rule 206 ELECTRONIC CITATION: 2000 FED App. 0035P (6th Cir.) File Name: 00a0035p.06… v. David W. Lanier

*The Honorable John R. Gibson, Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0035P (6th Cir.)
File Name: 00a0035p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
DAVID W. LANIER,
Defendant-Appellant.
;>

1
No. 98-5447
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 97-20223—Jerome Turner, District Judge.
Argued: September 15, 1999
Decided and Filed: January 24, 2000
Before: SUHRHEINRICH, COLE, and GIBSON,* Circuit
Judges.

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2 United States v. Lanier No. 98-5447
_________________
COUNSEL
ARGUED: Stephen B. Shankman, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Stephen C. Parker, OFFICE OF THE U.S.
ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Stephen B. Shankman, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Stephen C. Parker, OFFICE OF THE U.S.
ATTORNEY, Memphis, Tennessee, for Appellee. David W.
Lanier, Lexington, Kentucky, pro se.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. In December 1997,
David W. Lanier entered a plea of guilty to one count of
failure to appear, in violation of 18 U.S.C. § 3146. The
district court sentenced him to twelve months’ imprisonment,
applying a three-level enhancement to his sentence pursuant
to U.S.S.G. § 2J1.7, which applies to a defendant who
commits an offense while on release. Lanier appeals the
application of the enhancement, arguing that it constitutes
impermissible double counting. In pro se briefing, Lanier
also attacks his conviction, arguing that the en banc court
lacked jurisdiction to vacate this court’s earlier release order
because two senior judges impermissibly served on the en
banc court. Lanier thus contends that because we lacked
authority to vacate his release order, he could not have been
guilty of the offense of failure to appear. For the reasons that
follow, we AFFIRM Lanier’s conviction and sentence.
No. 98-5447 United States v. Lanier 11
part of the en banc court considering the motion.” United
States v. Lanier, 120 F.3d 640, 644 (6th Cir. 1997) (en banc)
(Boggs, J., concurring). Accordingly, this matter has been
settled and we thus adhere to our original ruling: the en banc
panel that vacated Lanier’s release order had jurisdiction to do
so.
IV.
For the foregoing reasons, we AFFIRM Lanier’s
conviction and sentence.

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10 United States v. Lanier No. 98-5447
5The indictment contained a typographical error in that it referred to
the statute as 18 U.S.C. § 1346 rather than 18 U.S.C. § 3146. This type
of typographical error does not render the indictment insufficient. See
United States v. Lake, 985 F.2d 265, 271 (6th Cir. 1993).
Here, the indictment charged that Lanier:
having been directed by the United States Court of
Appeals, Sixth Circuit to surrender to the United States
Marshal at Memphis, Tennessee in the Western District
of Tennessee, did knowingly and wilfully fail to
surrender for service of sentence as ordered by the Court,
in violation of Title 18, United States Code, Section
1346(a)(2).5
(footnote added). Considering the above language, Lanier has
no argument that the indictment failed to set forth the
elements of the charged offense or that he lacked notice of the
charge he faced. Lanier was fully cognizant that he was
charged with the failure to appear as directed and entered a
knowing and voluntary plea of guilty to that offense. In fact,
it is undisputed that Lanier deliberately defied a court order.
Accordingly, to any extent that Lanier is arguing that his
indictment was insufficient, that argument fails. Because
Lanier’s argument regarding the composition of the en banc
court that vacated his release order was not a jurisdictional
challenge to his voluntary guilty plea in the district court for
failure to appear, he has waived that argument and it is not
viable on appeal.
Even if we were to reach the merits of Lanier’s argument,
the two senior judges who served, Judge Keith and Judge
Jones, did so appropriately. Judge Keith was a member of the
original panel that heard Lanier’s appeal and, therefore, as
counsel for Lanier conceded at oral argument, properly served
on the en banc court. See 28 U.S.C. § 46(c)(1). As for Judge
Jones, “[a] majority of the judges in regular active service [in
this circuit] voted that the correct interpretation of the various
applicable statutes, rules of appellate procedure, and local
rules of our circuit indicated that [Judge Jones] should be a
No. 98-5447 United States v. Lanier 3
I.
Lanier was formerly the sole state Chancery Court judge for
two counties in rural Tennessee. Between 1989 and 1991,
while still a judge, Lanier sexually assaulted several women
in his judicial chambers. After the women reported the
assaults, Lanier was charged with violating 18 U.S.C. § 242,
which prohibits a person acting under color of state law from
violating the rights and privileges secured by the Constitution
and laws of the United States, including the right to be free
from willful sexual assault. Following a jury trial, Lanier was
convicted and sentenced to a term of imprisonment of 300
months.
On appeal, a panel of this court affirmed his conviction and
sentence, see United States v. Lanier, 33 F.3d 639 (6th Cir.
1994), but the full court vacated the decision and granted
rehearing en banc, see United States v. Lanier, 43 F.3d 1033
(6th Cir. 1995). During the en banc proceedings, we released
Lanier on his own recognizance and set aside his conviction
for “lack of any notice to the public that this ambiguous
criminal statute [§ 242] includes simple or sexual assault
crimes within its coverage.” United States v. Lanier, 73 F.3d
1380, 1384 (6th Cir. 1996) (en banc). The government
successfully petitioned the United States Supreme Court for
a writ of certiorari. See United States v. Lanier, 518 U.S.
1004 (1996).
The Supreme Court vacated this court’s en banc judgment
and remanded the case to us. See United States v. Lanier, 520
U.S. 259 (1997). The Court held that we committed error by
holding that due process under § 242 requires more than the
“clearly established” qualified immunity test pursuant to 42
U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971). See Lanier, 520 U.S. at 269-70. On
remand, before reconsidering the merits of Lanier’s original
appeal, this court, sitting en banc, entered an order requiring
Lanier to surrender to the United States Marshal for the
Western District of Tennessee by August 22, 1997. See

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4 United States v. Lanier No. 98-5447
United States v. Lanier, 120 F.3d 640 (6th Cir. 1997) (en
banc).
At that time, Lanier was living in San Diego. Lanier’s
daughter received the order and faxed a copy to Lanier’s
nephew, Tommy Mills, who lived near San Diego in El
Centro, California. Lanier’s daughter also personally
informed Lanier that he had been ordered to surrender. Mills
gave the copy of the order to Lanier; however, rather than
preparing to surrender, Lanier fled to Mexico. Mills asked
one of his employees to bring Lanier back to the San Diego
area, but the employee and Lanier instead went to Tijuana,
Mexico, where they visited topless clubs for several hours.
They then traveled to Ensenada, Mexico, where Lanier
remained, thereby failing to surrender by August 22, 1997, as
ordered. After Lanier’s failure to appear, this court, sitting en
banc, dismissed Lanier’s pending appeal of his underlying
conviction. See United States v. Lanier, 123 F.3d 945 (6th
Cir. 1997) (en banc).
In late August 1997, United States deputy marshals
discovered Lanier’s apartment in San Diego and determined
that he was using an alias: Aubrey Lane Thompson. The
investigation eventually led the deputy marshals to Ideal
Studios, located in Chicago, Illinois. Ideal Studios advertised
the sale of fake identity documents and kits in several national
publications, such as the National Enquirer. The owner of the
company remembered an order from Aubrey Lane Thompson,
which was shipped to Ensenada. The deputy marshals
notified Mexican authorities, who were present on October
13, 1997 when Lanier picked up the Ideal Studios package at
the Ensenada post office. The Mexican authorities then
arrested and deported Lanier.
Upon his return to the United States, Lanier gave a
statement to Deputy Marshal Tommy Thompson admitting
that he intentionally failed to appear although he knew he had
been ordered to surrender. He also admitted that he
established the alias of Aubrey Lane Thompson and resided
in Mexico for the purpose of eluding capture.
No. 98-5447 United States v. Lanier 9
fact guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation
of constitutional rights that occurred prior to the entry of the
guilty plea.” 411 U.S. at 267. Accordingly, a defendant
waives “all subsequent non-jurisdictional appeals to his
conviction by pleading guilty.” United States v. Pickett, 941
F.2d 411, 416 (1991) (citation omitted). Thus, Lanier has
waived his challenge to his conviction for failure to appear
unless he can show that his challenge is jurisdictional in
nature.
Lanier does not contest the jurisdiction of the district court
in which he was convicted of failure to appear; rather, Lanier
alleges that this court lacked jurisdiction to vacate his release
order because the composition of the en banc court was
improper. In effect, Lanier is arguing that our alleged lack of
jurisdiction to vacate his release order caused a corresponding
lack of jurisdiction in the district court. This argument fails.
More specifically, Lanier appears to contend that his
indictment for failure to appear was insufficient, based upon
our alleged lack of jurisdiction to vacate his release order. An
argument that an indictment was insufficient would be viable
on appeal, because the sufficiency of an indictment is a
jurisdictional challenge. See United States v. Vanover, 888
F.2d 1117, 1120 (6th Cir. 1989) (stating that defendant does
not waive right to challenge sufficiency of the indictment by
pleading guilty). Here, however, Lanier cannot show that his
indictment was insufficient.
Fed. R. Crim. P. 7(c)(1) provides, in part, that “[t]he
indictment . . . shall be a plain, concise and definite written
statement of the essential facts constituting the offense
charged.” In addition, the Supreme Court held that “an
indictment is sufficient if it, first, contains the elements of the
offense charged and fairly informs a defendant of the charge
against which he must defend, and, second, enables him to
plead an acquittal or conviction in bar of future prosecutions
for the same offense.” Hamling v. United States, 418 U.S. 87,
117 (1974).

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8 United States v. Lanier No. 98-5447
4Title 28 U.S.C. 46(c) provides in part that:
A court in banc shall consist of all circuit judges of the circuit
who are in regular active service . . . except that any senior
circuit judge of the circuit shall be eligible (1) to participate, at
his election and upon designation and assignment pursuant to
section 294(c) of this title and the rules of the circuit, as a
member of an in banc court reviewing a decision of a panel of
which such judge was a member, or (2) to continue to participate
in the decision of a case or controversy that was heard or reheard
by the court in banc at a time when such judge was in regular
active service.
III.
Lanier further argues, pro se, that the en banc court lacked
jurisdiction to vacate this court’s earlier release order because
two senior judges – Judge Keith and Judge Jones –
impermissibly served on the en banc court, in violation of 28
U.S.C. § 46(c).4 Lanier contends that because his release
order was erroneously vacated, he could not have been
convicted for failure to appear and, thus, his conviction for
that offense is a nullity. Lanier further contends that this
court should reinstate the direct appeal of his conviction for
violating 18 U.S.C. § 242. We disagree.
Lanier’s argument challenging the composition of our en
banc court is essentially a challenge to his conviction for
failure to appear, a conviction that occurred as a result of a
guilty plea. Thus, we must first determine whether Lanier has
waived his argument by his plea of guilty. See Tollett v.
Henderson, 411 U.S. 258, 267 (1973). “A voluntary and
intelligent guilty plea usually forecloses later attempts to
challenge the resulting judgment; the plea serves not only to
admit the conduct charged in the indictment[,] but also to
concede guilt of the substantive crime.” In re Hanserd, 123
F.3d 922, 926 (6th Cir. 1997) (citing United States v. Broce,
488 U.S. 563, 570 (1989)). Or, as stated in Tollett, “a guilty
plea represents a break in the chain of events which has
preceded it in the criminal process. When a criminal
defendant has solemnly admitted in open court that he is in
No. 98-5447 United States v. Lanier 5
1Title 18 U.S.C. § 3146. Penalty for failure to appear
(a) Offense. – Whoever, having been released under this
chapter knowingly –
(1) fails to appear before a court as required by the
conditions of release; or
(2) fails to surrender for service of sentence pursuant to a
court order; shall be punished as provided in subsection
(b) of this section.
(b) Punishment. – (1) The punishment for an offense under this
section is –
(A) if the person was released in connection with a charge
of, or while awaiting sentence, surrender for service of
sentence, or appeal or certiorari after conviction for –
(i) an offense punishable by death, life imprisonment,
or imprisonment for a term of 15 years or more, a
fine under this title or imprisonment for not more
than ten years, or both;
(ii) an offense punishable by imprisonment for a term
of five years or more, a fine under this title or
imprisonment for not more than five years, or
both;
(iii) any other felony, a fine under this title or
imprisonment for not more than two years, or both;
. . .
(2) A term of imprisonment imposed under this section
shall be consecutive to the sentence of imprisonment
for any other offense.
2Title 18 U.S.C. § 3147. Penalty for an offense committed while on
release
A person convicted of an offense committed while released
A federal grand jury handed down a one-count indictment
charging Lanier with failure to appear, in violation of 18
U.S.C. § 3146.1 On December 30, 1997, Lanier entered a
plea of guilty to the offense charged in the indictment. A plea
colloquy was held and the district court accepted Lanier’s
plea. On March 6, 1998, the district court sentenced Lanier,
finding that Lanier’s offenses warranted a sentencing
enhancement pursuant to 18 U.S.C. § 31472 and U.S.S.G.

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6 United States v. Lanier No. 98-5447
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.
3U.S.S.G. § 2J1.7. Commission of Offense While on Release
If an enhancement under 18 U.S.C. § 3147 applies, add 3
levels to the offense level for the offense committed while
on release as if this section were a specific offense
characteristic contained in the offense guideline for the
offense committed while on release.
2J1.7,3 which provide for a three-level increase to a
defendant’s offense level for committing an offense while on
release pending trial, sentencing, or appeal. The district court
imposed the minimum guideline sentence of twelve months,
designating nine months as punishment for violating § 3146
and three months attributable to § 3147, to run consecutive to
Lanier’s existing sentence for his violation of 18 U.S.C.
§ 242. Lanier filed a timely notice of appeal.
II.
Lanier first argues that the district court erred by applying
18 U.S.C. § 3147 and U.S.S.G. § 2J1.7 to enhance his base
offense level. Lanier contends that the three-level
enhancement set forth in these sections – applicable when an
offense is committed while a defendant is on release – should
not apply when the offense of conviction is failure to appear,
an offense that is necessarily committed while on release.
Lanier asserts that the enhancement constitutes impermissible
double counting in these circumstances. We review de novo
a sentencing court’s interpretation of the guidelines. See
United States v. Benson, 134 F.3d 787, 788 (6th Cir.), cert.
denied, 119 S. Ct. 343 (1998).
No. 98-5447 United States v. Lanier 7
In raising this argument, Lanier acknowledges that in
Benson, this court faced the precise issue he now raises. See
134 F.3d at 787-88. Defendant Benson was indicted and
arrested on charges of mail theft and released on a $20,000
unsecured bond. See id. at 787. After he failed to appear for
a court appearance, he was indicted for failure to appear in
violation of 18 U.S.C. § 3146. See id. At sentencing, the
district court applied 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7
to enhance Benson’s base offense level. See id. Benson
appealed to this court.
We affirmed Benson’s sentence, applying the rules of
statutory construction to conclude that 18 U.S.C. § 3147 is
not ambiguous and applies to “[a] person convicted of an
offense committed while released under this chapter. . . . ” Id.
at 788. Because Benson was convicted of an offense – failure
to appear – the § 3147 enhancement applied. See id. We
stated that “[s]ection 3147 clearly and unambiguously
mandates that the courts impose additional consecutive
sentences on persons convicted of crimes they commit while
released. . . . If Congress finds this result unpalatable, it is
within its power to rewrite the existing statute.” Id. at 788-89
(quotation and citation omitted). Dissenting from the majority
opinion, however, Judge Nelson opined that the application
of the sentencing enhancement for the offense of failure to
appear constituted multiple punishments for the same crime.
See id. at 789 (Nelson, J., dissenting). Judge Nelson noted
that he was “aware of nothing in the legislative history
suggesting that Congress intended to impose multiple
punishments in a case such as this, and I do not read the
statutory language as clearly manifesting such an intent.” Id.
Even if we were persuaded by Lanier’s argument and Judge
Nelson’s rationale, we are bound by the Benson decision. It
is firmly established that one panel of this court cannot
overturn a decision of another panel; only the court sitting en
banc can overturn such a decision. See United States v.
Smith, 73 F.3d 1414, 1418 (6th Cir. 1996). Accordingly,
following Benson, we reject Lanier’s argument and affirm the
district court’s enhancement of his sentence.

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