concurring and dissenting.
I concur in the opinion except with regard to Section II.B.2. In light of the explicit instructions contained in Application Note 3 to U.S.S.G. § 2J1.6 and Application Note 6 to U.S.S.G. § 3C1.1, I cannot agree with the majority’s conclusion that the sentence may be affirmed.
The Guidelines specifically require a sentencing court to group a failure to appear conviction with the underlying offense when sentencing a defendant. Under Application Note 3 to U.S.S.G. § 2J1.6 (Failure to Appear):
[I]n the case of a conviction on both the underlying offense and the failure to appear [other than a failure to appear for service of a sentence], the failure to appear *921is treated under § 3C1.1 (Obstructing or Impeding the Administration of Justice) as an obstruction of the underlying offense; and the failure to appear count and the count(s) for the underlying offense are grouped together under § 3D1.2(c).
Similarly, Application Note 6 to U.S.S.G. § 3C1.1 states that:
Where the defendant is convicted both of the obstruction offense and the underlying offense, the count for the obstruction offense will be grouped with the counts for the underlying offense under subsection (e) of § 3D1.1 (Groups of Closely Related Counts). The offense level for that group of closely related counts will be the offense level for the underlying offense increased by the 2-level adjustment specified by this section, or the offense level for the obstruction offense, whichever is greater.
The Guidelines also make clear that when a defendant is convicted of separate offenses that must be grouped during sentencing, only one of the convictions may serve as the basis for the sentence — in this case, the mail fraud offense — and the remaining offenses may only be used to adjust the base offense level. As the Introduction to Chapter 3, Part D of the Guidelines provides, “[i]n essence, counts that are grouped together are treated as constituting a single offense for purposes of the guidelines.” (emphasis added) Because these grouping provisions require us to treat the underlying offense as if it were the only offense of which the defendant was convicted, it is clear that the district court erred in separating the convictions when calculating the criminal history score. Only the mail fraud conviction can be termed the “instant offense” for purposes of this determination.
The majority attempts to overcome the clear Guideline requirements by construing the explanation that the Guidelines provide for grouping offenses in a most unusual manner. The Introduction to Chapter 3, Part 3 states that grouping is generally required in order to avoid sentencing a defendant to additional punishment for “substantially identical offense conduct.” The majority infers from this explanation that the Guidelines do not require a sentencing court to group offenses whenever it concludes on its own accord that the offenses are not “substantially identical.” In effect, the majority has given the sentencing court the power to ignore the explicit Guideline requirements; even when, as here, the Sentencing Guidelines explicitly require the court to group offenses, a court may choose not to do so if it concludes that they are not substantially similar.
What is even more unfortunate about the majority’s holding is that the Guidelines have explicitly foreclosed its conclusion that the conduct in this case is not substantially similar. Section 3D1.2, which governs the grouping of closely related counts, specifically states that “[a]ll counts involving substantially the same harm shall be grouped together into a single Group____ Counts involve substantially the same harm within the meaning of this rule ... [w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or [an] adjustment to, the guidelines applicable to another of the counts.” U.S.S.G. § 3D1.2(c) (emphasis added). The majority does not question — indeed, it affirms — the district court’s decision to treat the failure to appear conviction as an adjustment to the defendant’s sentence. Thus, despite the fact that (1) the Guidelines instruct us to treat the failure to appear conviction as an adjustment to the mail fraud conviction, and (2) the Guidelines define a substantially similar offense as a count “that is treated as ... an adjustment to” the underlying offense, the majority nevertheless concludes that grouping is not required because the conduct at issue is not “substantially identical offense conduct.”
Finally, even if I were to agree with the majority that we are free to ignore the grouping requirement in this case, I would nevertheless be forced to dissent because the majority does not apply its own approach consistently; it affirms the district court’s decision to group the offenses for purposes of calculating the base offense level and its decision to separate them when determining the defendant’s criminal history score. The Guidelines provide no support for drawing such a distinction. To the contrary, the plain language of the Introduction to Chapter 3, Part D instructs us that “counts that are *922grouped together are treated as constituting a single offense for purposes of the guidelines.” Introductory Note (emphasis added). In this case, the district court added two points to the defendant’s criminal history score — and thus many months to his sentence — by separating offenses that the Guidelines require to be grouped. Thus, the majority’s approach has allowed the sentencing court in this case to accomplish exactly what the Guidelines forbid: impose additional punishment for an offense that the Guidelines define as substantially similar conduct. Accordingly, I respectfully dissent from Section II.B.2 of the majority’s opinion.