“underlying offense,” the maximum sentence that should be used to calculate the
enhancement should be five years.
In support of his position, Magluta relies on United States v. Iddeen, 854 F.2d
Cir. 1988). In Iddeen, a pre-guidelines case, Iddeen was convicted of ten
counts of mail fraud, which carried a five year maximum on each count, and was
released on bond pending sentencing. See id. at 53. Iddeen jumped bond, but was
later captured and convicted for failure to appear in violation of 18 U.S.C. § 3146. In
formulating a sentence under the failure to appear statute, the district court aggregated
maximum sentences in the ten counts of mail fraud and sentenced Iddeen to ten years
of imprisonment under § 3146(b)(1)(A), which was to run consecutive to the forty
years he received for the mail fraud convictions. See id. The Fifth Circuit remanded,
holding that the terms “an offense punishable by” used in § 3146
maximum punishment of one offense, out of all the counts in the indictment, and not
18 U.S.C. § 3146 proscribes punishment for violations as follows:
(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, . . .
(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[.]
18 U.S.C. § 3146.