UNITED STATES of America, Plaintiff-Appellee, v. Luke JERNIGAN, Defendant-Appellant

We consider here whether a 5-month sentence for failure to appear for trial violates either the sentencing guidelines or double jeopardy principles where, in a prior ease, the defendant’s sentence was enhanced based on the same conduct.

I.

Background

On June 30, 1992, Defendant Luke Jerni-gan was charged with passing counterfeit notes and conspiracy to possess cocaine with the intent to distribute. Trial was set for January 21, 1993, but Jernigan failed to appear. Jernigan was apprehended, and on April 4, 1993, he was convicted on the counterfeit and conspiracy charges. At the time of sentencing, the district court (Judge Shan-strom) enhanced Jernigan’s sentence by 2 levels under United States sentencing guideline (“U.S.S.G.”) § 3C1.1 (Obstruction of Justice), in light of Jernigan’s failure to appear. The enhancement gave Jernigan a total offense level of 28. With a Criminal History Category of II, Jernigan’s guideline range was 87 to 108 months. Jernigan was sentenced to concurrent 100-month sentences for the counterfeit and conspiracy convictions.

Jernigan was separately indicted for failure to appear under 18 U.S.C. § 3146 (a)(1). He pleaded guilty and was sentenced by the…