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* Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-8615
No. 92-8616
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES B. MITCHELL,
Defendant-Appellant.
____________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(DR-89-CR-08 & DR-89-54-CR)
___________________________________________________
(November 26, 1993)
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
On March 20, 1989, James B. Mitchell (Mitchell) pleaded guilty
to aiding and abetting aviation smuggling. The organization with
which Mitchell had been affiliated had flown 540 pounds of

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marijuana from Mexico to an airstrip near Uvalde, Texas. Mitchell
disappeared, however, before he could be sentenced, but was
arrested three years later in Las Vegas, Nevada, and was returned
to Texas, where he made an initial court appearance on May 18,
1992. Mitchell then pleaded guilty to failing to appear at his
sentencing for his prior charge of aviation smuggling.
The probation officer calculated Mitchell's base offense level
as 26 on the aviation smuggling charge, to which he added three
levels for Mitchell's role in the offense and two levels for
obstruction of justice, arriving at a total offense level of 31.
The probation officer placed Mitchell in criminal history category
II. The probation officer determined Mitchell's base offense level
on his failure-to-appear charge as six, to which he added nine
levels because the aviation smuggling offense was punishable by
more than 15 years imprisonment, and subtracted two levels for
acceptance of responsibility. The probation officer thus arrived
at a total offense level of 13. Mitchell remained in criminal
history category II.
The district judge adopted the provisions of the PSRs at the
sentencing hearing, with two exceptions. First, he increased the
aviation smuggling offense level by only two levels for Mitchell's
role in the offense instead of three levels in the PSR. Second, he
decreased Mitchell's criminal history score by one point, which had
no effect on Mitchell's criminal history category. The district
judge overruled, inter alia, Mitchell's objection to the nine-level
increase for failing to appear, and his objections to the two-level

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increase for obstruction of justice, including his objection that
the increase constituted double jeopardy. The court sentenced
Mitchell to a 120-month term of imprisonment for aviation
smuggling, and a 15-month term of imprisonment for failure to
appear. Mitchell was to serve his sentence for failure to appear
consecutively to his term for aviation smuggling.
OPINION
Mitchell first contends that, because he was being sentenced
separately for his failure to appear, the upward adjustment to his
offense level for aviation smuggling constitutes double jeopardy.
Mitchell's contention is unavailing.
Mitchell was sentenced for both offenses at the same hearing,
and the failure-to-appear conviction resulted from his failure to
appear at his sentencing for aviation smuggling. "With respect to
cumulative sentences imposed in a single trial, the Double Jeopardy
Clause does no more than prevent the sentencing court from
prescribing greater punishment than the legislature intended."
Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d
535 (1983).
The commentary to the failure-to-appear guideline provides:
[I]n the case of a conviction on both the
underlying offense and the failure to appear,
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(s) for the underlying offense are
grouped together under § 3D1.2(c). Note that
although 18 U.S.C. § 3146(b)(2) does not
require a sentence of imprisonment on a
failure to appear count, it does require that
any sentence of imprisonment on a failure to

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appear count be imposed consecutively to any
other sentence of imprisonment. Therefore, in
such cases, the combined sentence must 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).
U.S.S.G. § 2J1.6, comment. (n.3). The commentary to section 3C1.1
provides:
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 count for the
underlying offense under subsection (c) of §
3D1.2 (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.
§ 3C1.1, comment. (n.6). Section 3D1.3 provides that "the offense
level applicable to a Group is the offense level . . . for the most
serious of the counts comprising the group[.]"
§ 3D1.3(a). The district court calculated Mitchell's offense level
for aviation smuggling offense level as 30 and his offense level
for failure to appear as 13. The overall offense level therefore
should have been 30.
The range of imprisonment terms for a level-30, category II
offender, is 108-135 months. § 5A, sentencing table. Under the
commentary to § 2J1.6, the district court's consecutive sentences
of 120 and 15 months were appropriate, even though they were
calculated separately. The aggregate 135-month term of
imprisonment is within the limits set by the Sentencing Commission.
Additionally, the guideline commentary directs that district courts

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should impose separate, consecutive sentences for failure to appear
and underlying offenses. Mitchell's sentencing does not violate
the Double Jeopardy Clause.
Mitchell next contends that the district judge erred by adding
nine levels to his underlying offense, rather than six, to arrive
at his offense level for failing to appear. Since the district
judge should have considered Mitchell's failure-to-appear
conviction according to note six of § 3C1.1 and the guidelines'
grouping mechanisms, the district judge erred by calculating
separately Mitchell's offense level under the failure-to-appear
guideline and imposing sentence based on the resulting sentencing
range.
Counsel, however, does not challenge the district court's use
of the guideline; he challenges only the nine-level adjustment to
the base offense level on the failure-to-appear charge. Mitchell
did not object in the district court to the judge's use of the
failure-to-appear guideline. The district court's use of the
failure-to-appear guideline therefore may serve as a basis for
reversal only if plainly erroneous. See U.S. v. Brunson, 915 F.2d
942, 944 (5th Cir. 1990). Plain error is error which "seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings." U.S. v. Olano, ___ U.S. ___, 113 S.Ct. 1770, 1776,
123 L.Ed.2d 508 (1993)(citations and internal quotation marks
omitted).
As is discussed above, the 135 months of aggregate
imprisonment to which Mitchell was sentenced is within the 108-to-

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135-month range provided by the guidelines using the proper
guideline provisions. Because the total sentence Mitchell received
is within the proper guideline range, the district judge's
misinterpretation of the guidelines is not plainly erroneous.
AFFIRMED.

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