United States v. Andrew Simmons

MATHIS, Circuit Judge. Andrew Simmons was charged with, and pleaded guilty to, failing to surrender for service of his sentence, in violation of 18 U.S.C. § 3146. The indictment did not mention that Simmons’s sentence would be enhanced under 18 U.S.C. § 3147, which authorizes an additional prison term for individuals convicted of a federal felony offense committed while on release. Still, the district court imposed a 31-month sentence for violations of §§ 3146 and 3147. Simmons raises statutory and constitutional challenges to his sentence. We affirm.

I.

Andrew Simmons was on bond when he pleaded guilty to a drug-trafficking offense and received an 84-month sentence. The district court allowed Simmons to remain on bond after sentencing and ordered him to surrender to a prison camp on March 6, 2023. While driving to the prison camp to surrender, Simmons’s car broke down. After his car became operable, Simmons returned home rather than proceeding to the camp to turn himself in.

A grand jury indicted Simmons on one count of violating 18 U.S.C. § 3146(a)(2). That law makes it a felony offense to “knowingly . . . fail[] to surrender for service of sentence pursuant to a court order” after being released on bond. 18 U.S.C. § 3146(a)(2).

Simmons pleaded guilty. Because Simmons could have received a sentence of more than fifteen years’ imprisonment for his prior drug-trafficking conviction, he faced a sentence of up to ten years’ imprisonment for his § 3146 conviction. See id. § 3146(b)(1)(A)(i). And § 3146 dictates that this sentence “shall be consecutive to the sentence of imprisonment for any other offense.” Id. § 3146(b)(2).

Simmons’s presentence report revealed that he also faced a sentencing enhancement under 18 U.S.C. § 3147. Under § 3147, “[a] person convicted of an offense committed while released” on bond shall be sentenced to “a term of imprisonment of not more than ten years if the offense is a felony.” Id. § 3147(1). That sentence must be consecutive to any other sentence. Id. § 3147.

At the sentencing stage, Simmons lodged two pertinent objections. First, he argued that ambiguity exists about whether Congress intended § 3147 to increase the maximum sentence for violating § 3146. Second, he argued that increasing his sentence without pre-plea notice violated Apprendi v. New Jersey, 530 U.S. 466 (2000).

The district court overruled the objections. The court sentenced Simmons to 25 months’ imprisonment for violating § 3146 and six months’ imprisonment for violating § 3147. Those sentences were consecutive to each other and to his sentence for the drug-trafficking conviction.

Simmons timely appealed.

II.

Simmons raises two challenges to his sentence. First, he argues that the district court erred by enhancing his sentence under § 3147 for his violation of § 3146. Second, Simmons argues that his sentence violated Apprendi because his indictment did not allege a violation of § 3147. The first challenge raises a question of statutory interpretation. The second asserts a constitutional violation. We review de novo the district court’s resolution of these challenges. United States v. Green, 167 F.4th 832, 851 (6th Cir. 2026); United States v. Silvers, 129 F.4th 332, 352 (6th Cir. 2025).

A.

We can quickly dispose of Simmons’s claim that the district court could not apply the § 3147 sentence enhancement to a defendant convicted of violating § 3146. In United States v. Benson, we held that district courts can apply a § 3147 sentence enhancement to a § 3146 violation. 134 F.3d 787, 788 (6th Cir. 1998); see United States v. Lewis, 991 F.2d 322, 324 (6th Cir. 1993) (“Section 3147 clearly and unambiguously mandates that the courts impose additional consecutive sentences on persons convicted of crimes they commit while released on bond.”). This precedent binds us. See S.C. v. Metro. Gov’t of Nash., 86 F.4th 707, 715 (6th Cir. 2023).

B.

We move next to Simmons’s claim that the district court violated his Apprendi rights. In relevant part, the Fifth Amendment provides: “No person shall be held to answer for a[n] . . . infamous crime, unless on a presentment or indictment of a Grand Jury, . . . nor be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. The Sixth Amendment protects the right to a jury trial in criminal cases. U.S. Const. amend. VI. Reading these provisions together, the Supreme Court has held that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Apprendi, 530 U.S. at 476 (quotation omitted).

An Apprendi violation does not require the automatic reversal of a conviction. As we have concluded, an Apprendi violation is a nonstructural error subject to harmless-error review. United States v. Campbell, 122 F.4th 624, 630 (6th Cir. 2024). “[B]efore a federal constitutional error can be held harmless, [we] must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). The burden of showing harmlessness falls on the government. Reiner v. Woods, 955 F.3d 549, 555 (6th Cir. 2020).

Assuming without deciding that an Apprendi violation occurred, the error was harmless beyond a reasonable doubt for several reasons. First, in the order setting the conditions of release in his federal drug-trafficking case, Simmons acknowledged that if he committed a federal felony offense while on release, he could face a prison sentence of up to ten years consecutive to any other sentence. The language in the order setting Simmons’s conditions of release generally tracks § 3147. Second, Simmons’s indictment and his guilty plea contained the facts necessary to support the § 3147 enhancement. See United States v. Roberts, 590 F. App’x 487, 490 (6th Cir. 2014) (concluding that an alleged Apprendi error arising from the application of the § 3147 enhancement was harmless where “[t]he precise facts underlying the potential application of § 3147 were charged in the indictment” and admitted by the defendant). Third, Simmons received notice of the § 3147 enhancement in his presentence report. See United States v. Douglas, 589 F. App’x 323, 325 (6th Cir. 2015) (per curiam). And finally, Simmons’s sentence did not exceed the ten- year statutory maximum for his § 3146 violation. See id.

Simmons argues that any Apprendi error was not harmless because he received no notice in the indictment of a potential § 3147 enhancement before pleading guilty. But Simmons had notice of the enhancement through the order setting the conditions of release in his drug-trafficking case. Simmons signed the order acknowledging his awareness of the penalties and sanctions that could arise from his commission of a federal felony offense while on bond. See id. (holding that “[a] defendant who signs bond papers that contain § 3147’s language receives sufficient notice that the enhancement under the statute may be imposed”).

III.

For the reasons above, we AFFIRM the district court’s judgment and DENY as moot the government’s motion to dismiss the appeal.