United States v. Fiume

Following Jason P. Fiume’s (defendant) release from prison for assaulting his wife, a court order of protection was issued that forbade any communication. Fiume repeatedly violated the order by sending his wife phone, email, and Facebook messages. Fiume then traveled from New York to Maine to leave a message for his wife, who had been staying in Maine with family. Fiume was charged by the United States government (plaintiff) for interstate travel with the intent to violate a protection order. Fiume pleaded guilty. The probation department then investigated the case to recommend an appropriate sentence. The department found that Fiume’s base level offense was 18 pursuant to the United States Sentencing Guidelines (USSG) § 2A6.2(a). The department then recommended two two-level enhancements. The enhancements were pursuant to USSG § 2A6.2(b)(1)(A), which provided a two-level enhancement if the offense involved violating a protection order and USSG §2A6.2(b)(1)(D), which provided a two-level enhancement for a pattern of assaulting the same victim. The department also recommended a three-level reduction because Fiume had accepted responsibility for the crime. The department concluded that the guidelines provided a prison sentence between 33 and 41 months. The department submitted a presentence investigation report containing its recommendation to the district court. The district judge reviewed the recommendation and imposed a prison sentence of 41 months. Fiume appealed on the ground that the two-level enhancement for violating a protection order constituted impermissible double counting and violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.