United States v. Jonathan Sink

851 F.2d 1120, 1988 WL 73436

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 25, 1988
• Docket: 87-5165
• Status: Published

Opinions

PER CURIAM.

On February 11, 1987, Jonathan Sink pled guilty to credit card fraud in violation of 18 U.S.C. § 1029(a). He also pled guilty to failing to surrender to serve a sentence in violation of 18 U.S.C. § 3146. Because Sink committed the credit card fraud while on release pending service of a sentence for a federal criminal conviction, the trial court enhanced Sink’s sentence for credit card fraud pursuant to 18 U.S.C. § 3147. Sink’s enhanced sentence was for two years. The trial court did not state what portion of the two-year sentence was for violating section 1029(a) and what portion was for violating section 3147. Sink was placed on probation for the conviction for failing to surrender.

Sink conditioned his plea of guilty on the right to contest on appeal his sentence, as enhanced under section 3147, and the failure of the district court to suppress a confession. Sink contends that the district court improperly accepted a magistrate’s report and recommendation in regard to a motion by Sink to suppress certain statements. Sink testified at the suppression hearing that he made certain statements to federal agents under coercion and without any Miranda warning. The magistrate rejected Sink’s testimony as not credible. The district court made an independent de novo review of the Magistrate’s report, findings and recommendation and adopted them. We do not find error in the magistrate’s report and recommendation or in the district court’s review of them.

Sink also contends that section 3147 creates a separate crime, which must be separately presented to a grand jury, and proven beyond a reasonable doubt at trial. The government counters that the section enhances the punishment for a crime committed while the defendant is on release.

This issue has recently been decided in this Circuit in United States v. Feldhacker, 849 F.2d 293 (8th Cir.1988). In Feld-hacker, this Court held that section 3147 merely enhances a sentence imposed for an underlying offense.

We, therefore, affirm the judgment of the district court in all respects.