U.S.S.G. §2J1.6

(a) Base Offense Level:

(1) 11, if the offense constituted a failure to report for service of sentence;

or

(2) 6, otherwise.

(b) Specific Offense Characteristics

(1) If the base offense level is determined under subsection (a)(1), and the

defendant—

(A) voluntarily surrendered within 96 hours of the time he was originally scheduled to report, decrease by 5 levels; or

(B) was ordered to report to a community corrections center, community treatment center, “halfway house,” or similar facility, and

subdivision (A) above does not apply, decrease by 2 levels.

Provided, however, that this reduction shall not apply if the defendant, while away from the facility, committed any federal, state, or local offense punishable by a term of imprisonment of one year or more.

(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; or

(B) punishable by a term of imprisonment of five years or more, but

less than fifteen years, increase by 6 levels; or

(C) a felony punishable by a term of imprisonment of less than five

years, increase by 3 levels.

Commentary

Statutory Provision: 18 U.S.C. § 3146(b)(1).

Application Notes:

1. “Underlying offense” means the offense in respect to which the defendant failed to appear.

2. For offenses covered under this section, §3C1.1 (Obstructing or Impeding the Administration of

Justice) does not apply, unless the defendant obstructed the investigation or trial of the failure

to appear count.

3. In the case of a failure to appear for service of sentence, any term of imprisonment imposed on

the failure to appear count is to be imposed consecutively to any term of imprisonment imposed

for the underlying offense. See §5G1.3(a). The guideline range for the failure to appear count is

to be determined independently and the grouping rules of §§3D1.1–3D1.5 do not apply.

However, in the case of a conviction on both the underlying offense and the failure to appear,

other than a case of failure to appear for service of sentence, the failure to appear is 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 or counts for the underlying offense

are grouped together under §3D1.2(c). (Note that 18 U.S.C. § 3146(b)(2) does not require a sentence of imprisonment on a failure to appear count, although if a sentence of imprisonment on

the failure to appear count is imposed, the statute requires that the sentence be imposed to run

consecutively to any other sentence of imprisonment. Therefore, unlike a count in which the statute mandates both a minimum and a consecutive sentence of imprisonment, the grouping rules

of §§3D1.1–3D1.5 apply. See §3D1.1(b)(1), comment. (n.1), and §3D1.2, comment. (n.1).) The combined sentence will then be constructed to provide a “total punishment” that satisfies the requirements both of §5G1.2 (Sentencing on Multiple Counts of Conviction) and 18 U.S.C. § 3146(b)(2).

For example, if the combined applicable guideline range for both counts is 30–37 months and the

court determines that a “total punishment” of 36 months is appropriate, a sentence of 30 months

for the underlying offense plus a consecutive six months’ sentence for the failure to appear count

would satisfy these requirements. (Note that the combination of this instruction and increasing

the offense level for the obstructive, failure to appear conduct has the effect of ensuring an incremental, consecutive punishment for the failure to appear count, as required by 18 U.S.C.

§ 3146(b)(2).)

4. In some cases, the defendant may be sentenced on the underlying offense (the offense in respect

to which the defendant failed to appear) before being sentenced on the failure to appear offense.

In such cases, criminal history points for the sentence imposed on the underlying offense are to

be counted in determining the guideline range on the failure to appear offense only where the

offense level is determined under subsection (a)(1) (i.e., where the offense constituted a failure to

report for service of sentence).

Background: This section applies to a failure to appear by a defendant who was released pending

trial, sentencing, appeal, or surrender for service of sentence. Where the base offense level is determined under subsection (a)(2), the offense level increases in relation to the statutory maximum of the

underlying offense.