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Sentence Enhancement Does Not Mean Double Counting, Double Jeopardy

By William Peacock, Esq. on February 25, 2013 | Last updated on March 21, 2019

Jason P. Fiume was convicted of wife beating in 2010, which predictably resulted in a protective order. As nearly as predictable was the response: defiance. He attempted to contact her via Facebook, text messaging, emailing, phone calls, and possibly via pigeon carrier, though the pigeons were never recovered. When his overtures were not reciprocated, he traveled from New York to Maine and left a message on the tree outside her parents' house, where she was staying.

The grand gesture was met not with love and reconciliation, but with the federal criminal charge of interstate travel with the intent to engage in conduct that transgresses a court-imposed protection order. He pled guilty, but was sorely disappointed by the presentencing investigation report, which recommended the following:

  • a base offense level of 18 derived from USSG §2A6.2(a) (a guideline applicable to an array of stalking and domestic violence offenses);
  • a two-level enhancement for violating a court protection order courtesy of §2A6.2(b)(1)(A)
  • a two-level enhancement for a pattern of activity involving stalking, threatening, harassing, or assaulting the same victim via §2A6.2(b)(1)(D)
  • a three-level reduction for acceptance of responsibility

Total score: 33 to 41 months in prison. The judge chose to go with 41 months.

Not everyone likes bonus points. Fiume argued that the two-level upward adjustment for violating a protection order constitutes impermissible double-counting because violating the court order was an element of the conviction itself.

Alas, extra credit, in the sentencing context, is not always bad or nor even constitutionally suspect. In fact, in the absence of an explicit prohibition of double-counting in a sentencing guideline, it’s quite permissible and common. You see, in many of the USSC’s guidelines, they explicitly prohibit double-counting. The old saying of “expressio unius est exclusio alterius” comes to mind here.

Also, there is the common sense proposition that different enhancements punish different things and promote different public policies. One enhancement might punish the use of a weapon, whereas another might punish aggravated robbery (because shooting someone while robbing them is a bit more heinous than than a smash-and-grab).

When it comes to sentencing enhancements, double-counting and overlap are a fact of life. Unless double-counting is explicitly prohibited, it’s perfectly permissible.

(Sidebar: Judge Selya’s vocab lesson of the day: gallimaufry, which means either an absurd medley of things, or a hash of various kinds of meats.)

Judge Selya summarily dismissed Fiume’s gallimaufry of other arguments made on appeal, such as double jeopardy, cruel and unusual punishment, and a violation of the rule of lenity.

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