U.S. v. Van Horn, 86-1544

• Decision Date: 19 August 1986
• Docket Number: No. 86-1544,86-1544
• Citation: 798 F.2d 1166
• Parties: UNITED STATES of America, Appellee, v. Roy Francis VAN HORN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1166

798 F.2d 1166

UNITED STATES of America, Appellee, v. Roy Francis VAN HORN, Appellant.

No. 86-1544.

United States Court of Appeals Eighth Circuit.

Submitted July 10, 1986.

Decided Aug. 19, 1986.

David D. Butler, Des Moines, Iowa, for appellant.

Guy R. Cook, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

Before McMILLIAN, ARNOLD, and BOWMAN, Circuit Judges.

ARNOLD, Circuit Judge.

The question presented is the constitutionality of 18 U.S.C. Sec. 3146(b). This statute fixes the punishment for persons convicted of knowingly failing to appear before a court as required by the conditions of their release, or knowingly failing to surrender for service of sentence pursuant to a court order. The statute fixes maximum terms of imprisonment, depending on the gravity of the charge that was pending when the knowing failure to appear or surrender took place. It then provides that any "term of imprisonment imposed pursuant to this section shall be consecutive to the sentence of imprisonment for any other offense." We are asked to declare the statute invalid because it violates the separation-of-powers doctrine by encroaching on the proper sphere of the courts, because it is a bill of attainder, and because it works a deprivation of liberty without due process of law. We reject these challenges and hold that the statute is within the power of Congress.

The appellant, Roy Francis Van Horn, was convicted in 1985 on his plea of guilty to possessing counterfeit twenty-dollar bills with the intent to defraud, in violation of 18 U.S.C. Sec. 472. The District Court ¹ sentenced Van Horn to five years' imprisonment and allowed him the privilege of voluntary surrender to the federal penal institution designated for service of his sentence. Van Horn failed to appear as directed. He was then indicted for violating 18 U.S.C. Sec. 3146, to which we have already referred. After being apprehended, Van Horn was tried and convicted for failing to appear as directed. The District Court sentenced him to a year and a day in prison for this crime and, in accordance with Sec. 3146(b), ordered that the sentence run consecutively to the sentence already imposed for possession of counterfeit money. Van Horn appeals, contending that the statute in question is invalid for the reasons already given.

We give Van Horn's counsel good marks for ingenuity and persistence, but we have no difficulty in rejecting the challenges to the statute. It is the business of Congress to define criminal acts, fix the terms of punishment for them, and declare the court which will have jurisdiction over the offense. United States v. Hudson, 7 (11 U.S.) Cranch 32, 34, 3 L.Ed. 259 (1812). The courts have the discretion to choose the appropriate punishment from within the range (if any) authorized by Congress. But Congress need not provide a range of options for the court. It could, if it wished, establish a mandatory set sentence for a particular crime, and it would be constitutional (unless, of course, the sentence violated the Eighth Amendment). At any rate, this is not a mandatory-minimum case. Congress has left to the sentencing judge the ultimate decision whether to imprison at all; it has required only that if sentence is imposed, then it must be a consecutive one.

The purpose of Congress is clear and understandable. One who has already been convicted of a crime, and then fails to appear or surrender in accordance with the order of a court, would largely escape punishment altogether if imprisonment imposed for failing to appear or surrender was allowed to run concurrently with the sentence for the underlying offense. It is still up to the court to...