F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 31 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-2244
v.
(D.C. No. CR-95-600-BB)
(D. N.M.)
THOMAS C. KNOWLES, a/k/a Harvey
Hamilton, a/k/a Lynn Curtis Ross,
Defendant-Appellant.
ORDER AND JUDGMENT1
Before BRORBY, EBEL and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
1
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Mr. Thomas C. Knowles, also know as Harvey Hamilton and Lynn Curtis Ross,
appeals the sentence imposed following his guilty plea for failure to appear in violation of
18 U.S.C. § 3146(a)(1) and (b)(1)(A)(i). He was sentenced to a term of thirty months
imprisonment followed by three years of supervised release. Mr. Knowles contends the
district court improperly applied United States Sentencing Guidelines § 2J1.6 (1995)
(U.S.S.G.), and abused its discretion in failing to grant him a downward departure. This
appeal comes to us from an Anders brief filed by Mr. Knowles' counsel.1 We affirm Mr.
Knowles' sentence.2
On November 1, 1995, Mr. Knowles was charged by a criminal complaint alleging
he passed, with intent to defraud, and possessed counterfeit $100 federal reserve notes in
violation of 18 U.S.C. § 472. At his initial appearance on the same day, Mr. Knowles was
released on personal recognizance and ordered to appear on November 6, 1995 for a
preliminary hearing. Mr. Knowles failed to appear at his preliminary hearing. A bench
1
In Anders v. California, 386 U.S. 738, 744 (1967), the Supreme Court
provided a procedure for appellate counsel to withdraw from representation if he
finds the appeal lacks merit. In accord with Anders procedure, Mr. Knowles'
counsel requested permission to withdraw and submitted a brief referring to
arguments discussed in this opinion that might arguably support the appeal.
2
Because we find Mr. Knowles' appeal lacks merit, we grant permission to
Mr. Knowles' counsel to withdraw from further representation of Mr. Knowles in
connection with this appeal. See Anders, 386 U.S. at 744.
2
warrant was issued for Mr. Knowles' arrest.
On November 16, 1995, an indictment was returned charging Mr. Knowles with
two counts of Utter and Possess Counterfeit Obligations in violation of 18 U.S.C. § 472.
Mr. Knowles was subsequently arrested on April 16, 1996, on the warrant relating to his
indictment. On June 4, 1996, he pleaded guilty to one count of failure to appear, in
violation of 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(i). The counterfeiting charges were
dropped as part of Mr. Knowles' plea bargain.
Mr. Knowles' Presentence Report ("PSR") recommended a sentence between thirty
to thirty-seven months, based on a total offense level of thirteen with a criminal history
category of V. The PSR calculated Mr. Knowles' sentence using a base offense level of
six under U.S.S.G. § 2J1.6(a)(2), plus a nine-level enhancement under U.S.S.G.
§ 2J1.6(b)(2)(A)3 because the underlying counterfeit currency offense under 18 U.S.C.
The relevant provisions of U.S.S.G. § 2J1.6 (Failure to Appear by
3
Defendant) provide:
(a) Base Offense Level:
(1) 11, if the offense constituted a failure to report for
service of sentence; or
(2) 6, otherwise.
....
3
§ 472 carried a maximum penalty of fifteen years, less a two level decrease pursuant to
U.S.S.G. § 3E1.1(a) for acceptance of responsibility.
Prior to sentencing, Mr. Knowles moved for a downward departure from the PSR
recommended sentence on the ground U.S.S.G. § 2J1.6 was incorrectly applied.
However, the district court denied Mr. Knowles' motion because it concluded Mr.
Knowles' case was "within the heartland of the sentencing guidelines for failure to
appear."
Mr. Knowles makes the same claims on appeal as he made in his presentencing
motion. Mr. Knowles first contends the trial court erred in applying U.S.S.G. § 2J1.6
because according to the guideline commentary, § 2J1.6 only "applies to a failure to
appear by a defendant who was released pending trial, sentencing, appeal, or surrender for
service of sentence," and not as in his case for failure to appear pending a preliminary
hearing. U.S.S.G. § 2J1.6, comment. (backg'd.). Mr. Knowles does not dispute the
district court's factual findings.
[b](2) If the base offense level is determined under
subsection (a)(2), and the underlying offense is --
(A) punishable by death or imprisonment for a term of
fifteen years or more, increase by 9 levels ....
4
"We review the district court's legal interpretation of the guidelines de novo."
United States v. Agbai, 930 F.2d 1447, 1448 (10th Cir. 1991). The district court correctly
applied U.S.S.G. § 2J1.6 because Mr. Knowles failed to appear for a court proceeding
while released pending trial. Mr. Knowles had been arrested and charged by a criminal
complaint for violations of 18 U.S.C. § 472. At Mr. Knowles' initial appearance, the
district court exercised its authority pursuant to 18 U.S.C. § 3142(a)4 to release Mr.
Knowles on personal recognizance pending trial. See also Fed. R. Crim. P. 5(c) and
46(a). A condition of Mr. Knowles' release pending trial was that he attend his
preliminary hearing, and he failed to appear. Therefore, the district court properly
applied § 2J1.6 to Mr. Knowles' sentence.
Mr. Knowles also contends the district court abused its discretion in not departing
downward from his recommended sentence because had he only pleaded guilty to the
4
18 U.S.C. § 3142 provides:
Upon the appearance before a judicial officer of a person charged
with an offense, the judicial officer shall issue an order that, pending
trial, the person be--
(1) released on personal recognizance ...;
(2) released on a condition or combination of conditions ...;
(3) temporarily detained ...; or
(4) detained [until and during trial] ....
(Emphasis added.)
5
counterfeit currency charge rather than the failure to appear charge, his sentence would
have been less. However, as this court ruled in Agbai, it is "logical and compelling" to
link the severity of the failure to appear sentence to the maximum penalty of the
underlying charge even when the defendant is acquitted of the underlying charge. 930
F.2d at 1449-50. The district court recognized it had discretion to depart downward, but
declined to do so. When a district court recognizes its authority to depart but refuses to
exercise that discretion, we have no jurisdiction to review the district court's decision.
United States v. Sanders, 18 F.3d 1488, 1490 (10th Cir. 1994). As a result, we do not
consider Mr. Knowles' second contention.
Accordingly, we AFFIRM Mr. Knowles' sentence.
Entered for the Court
WADE BRORBY
United States Circuit Judge
6