Unpublished Disposition, 936 F.2d 581 (9th Cir. 1991)

MEMORANDUM^* 

Kris Allen Sorensen appeals from the sentence he received for failure to appear, a violation of 18 U.S.C. § 3146. Sorensen argues that 1) it is an error for the crime of failure to appear to be calculated as a more serious offense under the Guidelines than the underlying crime (conspiracy to commit credit card fraud); 2) his offense level was overstated because the district court failed to utilize the practice of interpolation; and 3) his criminal history category was overstated because his conviction on the underlying charge was included in the category's calculation. This court has jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

DISCUSSION

The issues in this appeal involve the district court's legal interpretation and application of the Sentencing Guidelines, and our review is therefore de novo. United States v. Nelson, 919 F.2d 1381, 1382 (9th Cir. 1990).

Sorensen argues that the Sentencing Guidelines cannot be construed to make the offense of failure to appear more "serious" than the underlying conviction. Essentially, because the range for his failure to appear conviction (27-33 months based on offense level 12 and criminal history category five)¹  was greater than that for his underlying conviction (18-24 months based on offense level 11 and criminal history category four), Sorensen attacks the Guidelines' calculation of his sentence. He contends that the range for failure to appear cannot be greater than the range for the underlying conviction.

Sorensen's argument is based on 18 U.S.C. § 3146(b) which provides the statutory penalties for failure to appear.²  Section 3146(b) mandates that a defendant who fails to appear for trial on a charge punishable by five to fifteen years is subject to a failure to appear sentence of five years or less.³  Sorensen interprets this section as indicating a Congressional intent that failure to appear not be punished more severely than the underlying crime. Based on this inference, he concludes that the district court's application of the Guidelines in his case was erroneous.

Sorensen misinterprets Sec. 3146(b) by failing to recognize the independent nature of the crime failure to appear. In Sec. 3146, Congress relates the punishment for failure to appear with the severity of the underlying charge, as determined by the possible sentence. However, Sec. 3146 does not relate the punishment for failure to appear with the actual sentence received for conviction on the underlying charge. In establishing the independent crime failure to appear, Congress rationally determined that the severity of that crime varies based on the severity of the crime for which a defendant fails to appear. Section 3146 does not, as Sorensen asserts, demand that a failure to appear sentence be lower than the sentence for a conviction on the underlying crime. The section simply does not speak to that issue.

The flaw in Sorensen's argument is illustrated by extending it to its logical extreme. Sorensen's interpretation of Sec. 3146 would require that a defendant acquitted of the underlying charge receive no sentence for failure to appear. Because failure to appear is an independent crime with independent punishment, this result is clearly improper. The actual sentences applicable to the underlying conviction and a failure to appear conviction are wholly independent.⁴ 

Sorensen contends that his offense level for failure to appear was overstated because the district court did not interpolate between the specific offense characteristic levels of U.S.S.G. Sec. 2J1.6.⁵  Because Sorensen's underlying offense was punishable by five years' imprisonment, 18 U.S.C. § 1029(b) (2), his offense level was increased six levels pursuant to Sec. 2J1.6(b) (2). He asserts that the district court should have interpolated, or broken down the specific offense levels to one-point increments. We reject Sorensen's contention; there is no authority for the proposition that a sentencing court must interpolate and we see no special need for interpolation in this case.

Sorensen contends that in calculating his sentence for failure to appear, the district court improperly double-counted his conviction for credit card fraud. The presentence report calculated Sorensen's criminal history category to be five. Included in its calculation under U.S.S.G. Sec. 4A1.1(a) were three points for Sorensen's underlying conviction. Sorensen argues that, because the nature of the underlying charge is a specific offense characteristic under U.S.S.G. Sec. 2J1.6, using the underlying conviction as an element of the criminal history category is improper. Sorensen's contention is meritless. We have recently held that it is proper for a sentencing court to include the underlying charge in the Sec. 2J1.6 offense-level calculation and the underlying conviction in the criminal history calculation. United States v. Schomburg, 929 F.2d 505, 506 (9th Cir. 1991).

CONCLUSION

The sentence of the district court is AFFIRMED.