Marco Antonio Perez v. United States

18 U.S.C. § 3147 provides in relevant part: “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 a term of imprisonment of not more than ten years if the offense is a felony. A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.” The questions are:

1. Does an enhanced sentence pursuant to 18 USC § 3147 authorize a punishment exceeding the statutory maximum sentence for the underlying offense committed while on release as held by four circuits, or is it properly interpreted by the Guidelines and its commentary to prohibit a sentence in excess of the statutory maximum as held by five circuits?

2. In cases where a punishment for an offense is enhanced beyond the statutory maximum by judicial application of 18 U.S.C. § 3147, and where there was no formal pretrial notice of the intention to apply the enhancement, was not submitted to a grand jury, and was not submitted for consideration to the jury, does such an error rise to the level of being structural, or is it subject to harmless error analysis?