United States of America v. Humberto Jacobo

United States Court of Appeals
For the Eighth Circuit
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No. 12-1424
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Humberto Jacobo,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: September 18, 2012
Filed: November 30, 2012
Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Humberto Jacobo pleaded guilty to failure to appear at a change of plea hearing
in a drug trafficking case, in violation of 18 U.S.C. § 3146(a)(1). In calculating the
advisory sentencing guideline range, the district court 1 applied a nine-level increase
1The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

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to Jacobo’s offense level, pursuant to USSG § 2J1.6(b)(2)(A), because the “underlying
offense” in respect to which Jacobo failed to appear carried a maximum punishment
of life imprisonment. Jacobo appeals his sentence, and we affirm.
In April 2004, a grand jury charged Jacobo with conspiracy to distribute 500
grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(viii). Jacobo failed to appear at a change of plea hearing on July 12,
2005. As a result, a grand jury returned another indictment in October 2009, charging
Jacobo with failure to appear. Authorities arrested Jacobo in June 2011, and in
October 2011, he pleaded guilty to failure to appear. During the pendency of the
failure-to-appear case, in January 2010, the district court granted the government’s
motion to dismiss the April 2004 indictment against Jacobo without prejudice, and he
was never convicted of the underlying drug trafficking offense.
In determining the advisory guideline sentencing range for the offense of failure
to appear, the district court applied a base offense level of six, USSG § 2J1.6(a)(2),
a nine-level increase because “the underlying offense” was “punishable by death or
imprisonment for a term of fifteen years or more,” id. § 2J1.6(b)(2)(A), and a two-
level reduction for acceptance of responsibility, id. § 3E1.1(a), resulting in a total
offense level of 13 and a guideline range of 15-21 months’ imprisonment. The court
then imposed a sentence of 18 months’ imprisonment.
Jacobo argues for the first time on appeal that the district court erred in applying
the nine-level increase under § 2J1.6(b)(2)(A), because the government failed to prove
with reliable evidence that Jacobo actually committed the underlying offense of
conspiracy to distribute methamphetamine. There is no requirement, however, that
the prosecution prove the underlying offense, so there was no plain error. The
“underlying offense” is “the offense in respect to which the defendant failed to
appear.” USSG § 2J1.6, comment. (n.1). If that offense is “punishable” by
imprisonment for a term of fifteen years or more, then the guidelines direct the court
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to apply a nine-level increase. Unlike other guidelines cited by Jacobo that depend
on whether a defendant committed another offense, e.g., United States v. Raglin, 500
F.3d 675, 677 (8th Cir. 2007) (discussing USSG § 2K2.1(b)(6)), the focus of
§ 2J1.6(b)(2) is on the punishment authorized for the offense with which the defendant
had been charged when he failed to appear. “There is a direct relationship between
the length of the potential sentence which one who fails to appear attempts to evade
and the seriousness of the evasion.” United States v. Agbai, 930 F.2d 1447, 1450
(10th Cir. 1991) (emphasis added). The issue is not whether the defendant actually
committed the underlying offense. See United States v. Nelson, 919 F.2d 1381, 1384
(9th Cir. 1990) (upholding application of § 2J1.6(b) in a sentencing for failure to
appear, even though the defendant had been acquitted of the underlying offense after
his failure to appear); Agbai, 930 F.2d at 1449-50 (agreeing with Nelson). Because
Jacobo’s underlying offense of conspiracy to distribute methamphetamine was
punishable by up to life imprisonment, see 21 U.S.C. § 841(b)(1)(A)(viii), the district
court correctly applied the nine-level increase.
The judgment of the district court is affirmed.
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