## Facts

- After Jason P. Fiume was released from prison for assaulting his wife, Megan, a New York court issued an order of protection barring him from approaching or communicating with her.
- The order put Fiume on notice that crossing state lines to violate its terms could result in federal criminal liability.
- Despite the order, Fiume repeatedly contacted Megan through multiple channels, including phone calls, email, and Facebook messages.
- Megan stayed with family in Maine. Fiume traveled from New York to Maine and left a message for her at her family’s property.
- The United States charged Fiume with interstate travel with intent to violate a protection order under 18 U.S.C. § 2262(a)(1), (b)(5). Fiume pleaded guilty.
- In the presentence investigation report, the probation office calculated a base offense level of 18 under USSG § 2A6.2(a) and recommended:
  - a two-level upward adjustment under USSG § 2A6.2(b)(1)(A) because the offense involved violating a protection order;
  - a second two-level upward adjustment under USSG § 2A6.2(b)(1)(D) for a pattern of activity involving assaulting the same victim; and
  - a three-level reduction for acceptance of responsibility under USSG § 3E1.1.
- The resulting advisory guideline range was 33 to 41 months, and the district court imposed 41 months.
- Fiume appealed, challenging only the two-level upward adjustment under USSG § 2A6.2(b)(1)(A).

## Issues

1. Whether applying the two-level upward adjustment in USSG § 2A6.2(b)(1)(A) for violating a protection order, when the offense of conviction under 18 U.S.C. § 2262 requires proof of a protection-order violation, is impermissible double counting under the Sentencing Guidelines.
2. Whether using that same adjustment violates the Double Jeopardy Clause of the Fifth Amendment.

## Decision

- The First Circuit affirmed the sentence.
- The court held that applying USSG § 2A6.2(a)’s base offense level together with the two-level upward adjustment in USSG § 2A6.2(b)(1)(A) is permitted and is not impermissible double counting.
- The court rejected the Double Jeopardy claim because the adjustment operates as part of a single sentence for a single federal conviction, not as a second prosecution or punishment.

## Legal Principles

- Guideline provisions may apply cumulatively unless the guideline text, commentary, or structure shows the Sentencing Commission meant to bar cumulative application.
- “Double counting” is generally improper only when the same aspect of the defendant’s conduct is fully accounted for by one guideline provision and then counted again by another in a way the Guidelines do not permit.
- USSG § 2A6.2(a) supplies a base offense level for a category of stalking/domestic-violence-related federal offenses; USSG § 2A6.2(b)(1)(A) separately addresses the added seriousness of committing the offense in defiance of a court protection order.
- The fact that a statutory element overlaps with a guideline adjustment does not, by itself, make the adjustment improper; absent a guideline bar, the same fact can be used in both places.
- The Double Jeopardy Clause is not violated when a court considers offense facts through guideline adjustments in a single sentencing proceeding for the conviction at issue.

## Conclusion

United States v. Fiume held that, for a defendant convicted under 18 U.S.C. § 2262 for interstate travel to violate a protection order, the district court could apply the USSG § 2A6.2(a) base offense level and also apply the two-level upward adjustment in USSG § 2A6.2(b)(1)(A) for violation of a protection order, and doing so neither constituted impermissible double counting nor violated the Double Jeopardy Clause; the First Circuit therefore affirmed the 41-month sentence.


United States v. Fiume, 708 F.3d 59 (2013)