                                                                        PUBLISH

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT


                                   --------------
                              Nos. 98-4023, 98-4024
                                   --------------
                        D. C. Docket Nos. 96-341-CR-JAL
                                97-102-CR-JAL


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,
      versus

SALVADOR MAGLUTA,

                                                           Defendant-Appellant.

                     ----------------------------------------------
                   Appeals from the United States District Court
                       for the Southern District of Florida
                     ----------------------------------------------
                               (December 23, 1999)

Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge.

RICHARD MILLS, Senior District Judge:

      Magluta appeals from his conviction and sentence imposed in two separate

cases: the “false identification case” and the “bond jumping case.”

      *
        Honorable Richard Mills, Senior U.S. District Judge for the Central District
of Illinois, sitting by designation.
      Mainly, he seeks review of the district court’s denial of his motion to suppress

evidence and the sentences he received.

      We affirm in part, vacate in part, and remand for re-sentencing.

                                  I. BACKGROUND

A.    False identification case

      Before his incarceration, Magluta was a wanted man. At the time of his arrest

on October 15, 1991, Magluta had four outstanding arrest warrants from several

jurisdictions: one from the State of Florida for 1979 cocaine trafficking charges; one

from the State of California for 1985 drug trafficking charges; one from the Middle

District of Florida for a currency structuring conspiracy charge; and one from the

Southern District of Florida for various narcotic offenses.

      Based on the four outstanding warrants, the United States Marshal’s Service

Fugitive Unit conducted a search for Magluta and eventually located him through a

confidential informant. The law enforcement officials determined that Magluta was

at a house located at 98 East LaGorce Circle in Miami Beach, Florida (“LaGorce

residence”) and that he had rented the premises since August 1, 1987 using the name

“Santiago Menendez.” On October 15, 1991, at about 6:30 p.m., several federal and

state law enforcement officials arrested Magluta in the bushes of a neighbor’s house.

Law enforcement officials also arrested another suspect in the LaGorce residence, and


                                          2
conducted a security sweep of the residence.

      That evening, Special Agent David Borah of the Drug Enforcement

Administration (“DEA”) swore to an affidavit and obtained a search warrant for the

LaGorce residence. The warrant affidavit contained Agent Borah’s sworn statement

that: 1) several witnesses, including a neighbor, verified that Magluta lived at the

LaGorce residence; 2) that during a security sweep of the premises, law enforcement

officers observed “black gym bags inside the closet that were covered up by blankets;”

3) that the officers also observed a safe, numerous papers, and a “large amount of

cash” in plain view of a bedroom closet in the guest house;1 4) that Borah had been

investigating Magluta since 1986, and that as a result of his investigations, Magluta

was indicted in 1991 for violating federal drug laws; 5) that Agent Borah has received

information from confidential informants regarding Magluta’s drug and money

laundering activities since 1986.

      The magistrate judge found that there was probable cause to believe that

Magluta was involved in drug trafficking activities, and approved the search warrant.2

As a result of the search, agents seized various documents, $349,000 worth of jewelry,



      1
       Agent Borah swore that based upon his experience as a member of the
DEA, such items were commonly possessed by drug traffickers.
      2
       After a separate trial on the drug charges, a jury acquitted Magluta.
                                          3
six cellular phones, two fax machines, a money counter, $126,002 in cash, and

newspaper articles and documents relating to pending court proceedings against

Magluta. Agents also seized various identification documents with Magluta’s picture,

but with different names. The documents seized were as follows: Florida driver’s

licenses in the names of “Samuel Martinez,” “Luis Alberto Chang,” “Angelo

Rosario,” and “Christian David Galeano;” New Jersey driver’s licenses in the names

of “Manuel Martinez” and “Christian D. Galiano;” a California driver’s license in the

name of “Michael Santini;” a United States passport in the name of “Samuel

Martinez;” a Venezuelan passport in the name of “Manuel Martinez;” a Panamanian

passport in the name of “Luis Alberto Chang Acosta;” two counterfeit INS forms I-94

in the names of “Manuel A. Martinez” and “Luis Alberto Chang Acosta;” and Social

Security cards and Dade County voter registration cards in the names of “Samuel

Martinez,” “Christian David Galeano,” and “Michael Santini.” Agents also seized

bank records for four foreign bank accounts opened with various aliases, documents

relating to Magluta’s rental of various properties, and other receipts.3

      On August 2, 1996, a grand jury returned a ten count indictment against



      3
        The receipts were for money spent at Nevada casinos between 1985
through 1991 which totaled approximately $200,000.00, a stay at New York’s St.
Regis hotel in October 1991 which totaled $7,000.00, and a ski trip to Aspen,
Colorado in November 1989 which totaled $9,400.00.
                                           4
Salvador Magluta:

      Count I charged Magluta with making a false statement in an application for a

passport, in violation of 18 U.S.C. § 1542 and § 2;

      Count II charged that Magluta intentionally procured and obtained documentary

evidence of U.S. naturalization and citizenship in violation of 18 U.S.C. § 1425(b);

      Count III charged that Magluta unlawfully possessed a Venezuelan passport

purportedly issued to “Manuel A. Perez,” which contained a photograph of Magluta,

in violation of 18 U.S.C. § 1546;

      Count IV charged that he unlawfully possessed a Panamanian passport with the

name “Luis Alberto Chang,” which contained a photograph of Magluta, in violation

of 18 U.S.C. § 1546;

      Count V charged that he obtained a Florida Driver’s license through the use of

his “Luis Alberto Chang” passport in violation of 18 U.S.C. § 1544;

      Counts VI and VII charged him with possession with intent to use unlawfully

five or more false identification documents, in violation of 18 U.S.C. § 1028(a)(3);

      Counts VIII, IX, and X charged Magluta with furnishing false information on

an application for a Social Security card, in violation of 42 U.S.C. § 408(a)(6).

      A jury convicted Magluta on all ten counts.

B.    Bond jumping case


                                          5
      On February 6, 1997, during the course of his false identifications trial, Magluta

left the courthouse and asked the court security officer to tell Magluta’s attorney that

he had left to get something from the car. Magluta, however, did not return for the

remainder of the trial.

      Over two months later, federal marshals arrested Magluta in West Palm Beach,

Florida.4 Magluta eventually pleaded guilty to failure to appear before the district

court during his trial -- a violation of 18 U.S.C. § 3146.

C.    Sentencing hearing

      The district court held a combined six-day sentencing hearing for both cases.

In the false identification case, the parties agreed that the ten counts should be grouped

together pursuant to U.S.S.G. § 3D1.2(b) (1990). Out of the three possible sections

that the district court could have applied under § 3D1.3 in determining the base

offense level, the district court applied §2F1.1 (provision for fraud or deceit) to the



      4
         At the time of his arrest, Magluta was driving a car that was rented to
“Carlos Guerra.” Moreover, he had changed his appearance by shaving his head
and wearing a wig. He possessed a bag containing $20,000.00 in cash, several
identification documents in the name of “Juan Alfonso,” and a notepad containing
various notes, including, but not limited to: instructions to his son regarding grand
jury testimony; a list of “[p]eople I need to have access with;” a note stating
“[r]edo-do = all corporations & redistribute all shares;” and a note stating,
“FORFEITURES: Everybody put claimers on all the objects etc.” In addition, it
was later determined that he had been living in a suite at the Ritz-Carlton hotel
under the name of “Edward Cedras.”
                                            6
counts and assigned a base offense level of six. The district court also imposed a two-

level increase for “violation of judicial . . . process” under §2F1.1(b)(3)(B) because

Magluta used false identification documents to avoid judicial process, and increased

the base offense level to 12 under §2F1.1(b)(5) for using a foreign bank account in the

offense. The district court found that, based on a base offense level of 12 and a

criminal history category of III, the relevant imprisonment range was 15 to 21 months.

      The district court, however, imposed a six-level upper departure pursuant to

U.S.S.G. § 5K2.7, Application Note 9 to § 2F1.1 and § 5K2.9, for disrupting

governmental function, committing the offense to facilitate the commission of another

offense, and causing loss of confidence in an important institution, respectively. The

court also granted the government’s request for an upper departure of Magluta’s

criminal history category from III to VI, pursuant to § 4A1.3. As a result, the

adjustments yielded a sentencing range of 57-71 months, and the court sentenced

Magluta to 71 months imprisonment.

      In the bond jumping case, the district court applied U.S.S.G. § 2J1.6(a)(2)

(1997) and set the base offense level at six. Holding that “the underlying offense”

carried a possible term of imprisonment for over 15 years, the court then increased the

offense level by nine pursuant to § 2J1.6(b)(2)(A). The court then added two-levels

for obstruction of justice under § 3C1.1 based on the documents Magluta possessed


                                          7
at the time of his arrest regarding his assets and corporate entities as well as the

fraudulent identifications he possessed and used while he was a fugitive. The court

then gave a three-level reduction for acceptance of responsibility under § 3E1.1. With

regard to Magluta’s criminal history category, the court departed upward to criminal

history category of V based on the risk of recidivism. Accordingly, based on a base

offense level of 14 and a criminal history category of V, the court found the relevant

sentencing range to be 33-41 months. The court sentenced Magluta to 41 months.

      In both cases, the district court sentenced Magluta to three years supervised

release, and that the respective sentences and supervised release were to be served

consecutively.



                                     II. ISSUES

      The issues raised in this appeal are whether:

1.    Magluta’s conviction in the false identification case should be reversed because

      the search warrant affidavit that justified the search of Magluta’s LaGorce

      residence was facially insufficient to support a finding of probable cause;

2.    In the false identification case, whether the district court erred in applying the

      fraud provision (§ 2F1.1) as opposed to the guideline for false citizenship and

      naturalization documents (§ 2L1.1);


                                           8
3.    In the false identification case, whether the district court erroneously imposed

      the enhancements for use of a foreign bank account and for a violation of

      “judicial process;”

4.    In the false identification case, whether the district court erred in increasing

      Magluta’s criminal history category by three levels;

5.    In the bond jumping case, whether the district court correctly applied the

      Sentencing Guidelines to impose a sentence that is consecutive to the sentence

      in the false identification case;

6.    In both cases, whether the district court erroneously ordered the terms of

      supervised release to run consecutively.

                            III. STANDARD OF REVIEW

      Whether a search warrant affidavit provides sufficient facts to establish

probable cause is reviewed de novo. See United States v. Butler, 102 F.3d 1191, 1198

(11th Cir.), cert. denied, 117 S.Ct. 1712 (1997).

      We review the district court’s interpretation of the sentencing guidelines de

novo. See United States v. Maurice, 69 F.3d 1553, 1556 (11th Cir.1995). The

sentencing court’s factual determinations are reviewed for clear error. See United

States v. Taylor, 88 F.3d 938, 942 (11th Cir. 1996); United States v. Howard, 923 F.2d

1500, 1503 (11th Cir. 1991). Lastly, the district court’s decision to depart from the


                                           9
applicable sentencing guideline range is reviewed for abuse of discretion. See Koon

v. United States, 518 U.S. 81, 97, 116 S. Ct. 2035, 2046 (1996); United States v.

Hoffer, 129 F.3d 1196, 1199 (11th Cir. 1997).

                                  IV. DISCUSSION

A.    Search Warrant

      Magluta contends that Agent Borah’s affidavit failed to establish probable cause

to search the LaGorce residence. We must reject Magluta’s argument.

      The task of the issuing magistrate judge [in determining whether to issue a

warrant] is simply to make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before him, including the "veracity" and "basis

of knowledge" of persons supplying hearsay information, there is a fair probability

that contraband or evidence of a crime will be found in a particular place. See Illinois

v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983). This question is reviewed

de novo by an appellate court, "tak[ing] care to review findings of historical fact only

for clear error and to give due weight to inferences drawn from those facts by resident

judges and local law enforcement officers." Ornelas v. United States, 517 U.S. 690,

697, 116 S.Ct. 1657, 1662 (1996). We note, however, that "[i]nformation [in the

warrant application] must be timely for probable cause to exist, for probable cause

must exist at the time the magistrate judge issues the search warrant.” United States


                                          10
v. Green, 40 F.3d 1167, 1172 (11th Cir. 1994) (quoting United States v. Harris, 20

F.3d 445, 450 (11th Cir. 1994)).

      Magluta first argues that the information relating to the 1991 indictment were

“stale,” and not indicative of an ongoing criminal enterprise because the affidavit

failed to indicate “when Magluta was said to have been involved [in the drug

transactions.]” We reject this argument for three reasons: first, the “basic criterion as

to the duration of probable cause [or staleness] is the inherent nature of the crime.”

Bocaro, 742 F.2d at 1346.      In this case, it is undisputed that Magluta was being

investigated for drug trafficking activities -- which are activities this Court has

previously noted to be “inherently protracted and continuous.” See id. Thus, the

specific dates that Magluta engaged in the illegal activity are not as important as the

nature of the underlying offense in determining the staleness issue. Second, the

affidavit also demonstrated that Magluta maintained an ongoing relationship with a

coconspirator, Orlando Lorenzo. Such a relationship with a coconspirator is a strong

indicator of a defendant’s continuing criminal activity. See United States v. Harris,

20 F.3d 445, 451 (11th Cir. 1994) (noting that a coconspirator’s access to the

defendant’s house made it “probable that drug-related activities took place or

drug-related documents were stored at the house.”) Third, even if we were to assume

that the information related to the indictment is stale information, “such information


                                           11
is not fatal where the government's affidavit updates, substantiates, or corroborates the

stale material." United States v. Green, 40 F.3d 1167, 1172 (11th Cir. 1994) (quoting

United States v. Harris, 20 F.3d 445, 450 (11th Cir. 1994)). As noted before, the

items observed by law enforcement officers during the security sweep are typical in

a drug trafficker’s home.       As such, the observed items contemporized and

corroborated the information that Magluta had been -- and was -- engaged in drug

trafficking at the time the warrant was issued.

      Magluta’s “lack of nexus” argument must also fail. The affidavit points out that

Magluta was living at the LaGorce residence, that he was a known drug trafficker, and

that law enforcement officials saw items that are typically held by drug traffickers

inside the LaGorce residence. Accordingly, we find that the affidavit shows a nexus

between Magluta’s drug trafficking activity and the LaGorce residence to support a

search warrant for the residence.

      In sum, we find that given the information relating to Magluta’s past drug

trafficking activity, corroborated by the recent information obtained during the

security sweep, there was a fair probability that Magluta was involved in illegal

activity, and that evidence of that activity would be found at the LaGorce residence.

Accordingly, the search warrant was supported by probable cause and the evidence

seized during the search -- e.g., fake passports, driver’s licenses, identification cards


                                           12
and Social Security cards -- were properly obtained and admitted during the course

of the false identification trial.

       Magluta’s conviction is hereby affirmed.

B.     Sentence in the false identification case

       1.     Whether the district court used the correct guideline

       The district court adopted the recommendation in the PSI that § 2F1.15

governed the guidelines for Counts VI-X, which charged violations of 18 U.S.C. §

1028, and 42 U.S.C. § 408. Magluta argues that the district court should have looked

at the specific conduct underlying the conviction and should have applied § 2L2.2, the

Guideline for “Fraudulently Acquiring Evidence of Citizenship or Documents

Authorizing Entry for Own Use.” The question about whether a particular guideline

applies to a given set of facts is a question of law, see United States v. Scroggins, 880

F.2d 1204, 1206 n. 5 (11th Cir. 1989), and thus, we review the district court’s decision

de novo.

       Magluta analogizes this case with United States v. Kuku, 129 F.3d 1435 (11th

Cir. 1997), where this Court vacated a sentence of a defendant who was convicted of



       5
         Although the sentencing occurred in 1997, the district court used the 1990
version of the Sentencing Guideline to calculate Magluta’s base offense level in the
false identifications case, presumably because the 1990 version is more favorable
to Magluta than the 1997 version.
                                           13
unlawfully producing Social Security cards and selling them to illegal aliens. In that

case, the district court sentenced the defendant under § 2F1.1 without examining the

underlying offense conduct to determine whether § 2F1.1 actually envisioned

defendant’s offense conduct. See Kuku, 129 F.3d at 1438. On appeal, this Court held

that the facts in that case, along with the language used in the Guidelines, made §

2L2.1 more applicable. Similarly, Magluta argues that the district court failed to

examine the underlying conduct and erroneously used § 2F1.1, when the facts of this

case and the language used in the Guidelines makes § 2L2.2 more appropriate.

      We reject this argument.

      First, under the statutory index of the 1990 Guidelines, § 2F1.1 is the only

referenced provision for violations of 42 U.S.C. § 408. Moreover, 2F1.1 is available

as a relevant provision to 18 U.S.C. § 1028 violations, while § 2L2.2 is not listed as

one of the available provisions. See U.S.S.G. App. A (1990).6 Based on this index,

the district court correctly applied § 2F1.1.




      6
        Although the statutory index may not be conclusive as to the propriety of a
certain Guideline, see, e.g., United States v. Velez, 113 F.3d 1035, 1037 (9th Cir.
1997), we find that it is an important starting point for determining the correct
guideline.


                                          14
      Second, there is a critical difference between this case and Kuku.7 In Kuku, the

case involved trafficking false identification documents for the purpose of violating,

or assisting others to violate, the laws relating to naturalization, citizenship, or legal

resident status, which made § 2L2.1 a natural fit. In this case, the record is devoid of

any evidence that suggests Magluta possessed the false documents to violate laws

relating to naturalization, citizenship, or resident status. Magluta did not use the false

identifications to portray that he was an American citizen; Magluta was already a

naturalized citizen.    Instead, the record reflects that Magluta provided false

information to various government agencies to fraudulently obtain false identifications

to use in evading law enforcement officials. Thus, when we look at the “conduct

which formed the basis of the underlying conviction” as Magluta suggests, we find

that § 2F1.1 (fraud and deceit) better suits the facts of this case. See also U.S.S.G. §

2F1.1 comment. (n.11) (1990) (“Offenses involving fraudulent identification


      7
       In Kuku, this Court relied in part on the language in Commentary 11 of §
2F1.1, which reads in pertinent part:

      Where the primary purpose of the offense involved the unlawful
      production, transfer, possession, or use of identification documents for
      the purpose of violating, or assisting another to violate, the laws
      relating to naturalization, citizenship, or legal resident status, apply
      §2L2.1 or § 2L2.2, as appropriate, rather than §2F1.1.

U.S.S.G. § 2F1.1 comment. (n.11), as amended by U.S.S.G. App. C, Amendment
483. [Emphasis added].
                                           15
documents . . . in violation of 18 U.S.C. §§ 1028 and 1029, are also covered by this

guideline.”)

      Accordingly, we find no error in the district court’s decision to apply § 2F1.1.

      2.       Enhancement for use of a foreign bank account under § 2F1.1(b)(5)

      The district court enhanced Magluta’s base offense level under § 2F1.1(b)(5)

because Magluta had a Bahamian bank account in the name of Manuel A. Martinez.

Section 2F1.1(b)(5) allows an enhancement if “the offense involved the use of foreign

bank accounts or transactions to conceal the true nature or extent of the fraudulent

conduct.” The court found that § 2F1.1(b)(5) was an appropriate adjustment “based

on both the nature and extent of the concealment and of the fraud concerning the

concealment of funds and the concealment of the person that were intertwined through

the use of a foreign bank account.”

      Magluta argues that this adjustment was improper because Magluta’s offense --

possession or procurement of false identifications -- did not “involve a use of a foreign

bank account” as used in § 2F1.1(b)(5), and that even if a foreign bank account was

used, the enhancement was still improper because the account was not used to

“conceal the true nature or extent of the fraudulent conduct.” In contrast, the

government argues that since the “driving force” of Magluta’s offense was his

concealment of himself from law enforcement officials, he used funds from his


                                           16
foreign bank account to sustain his fugitive status, and thus, the enhancement was

proper. Since this issue presents a mixed question of law and fact, we review the

district court’s decision de novo. See United States v. Arguedas, 86 F.3d 1054, 1057

(11th Cir. 1996).

      There are no reported court of appeals cases that address the imposition of a §

2F1.1(b)(5) enhancement. The plain language of this subsection, however, suggests

that there are two basic elements to this enhancement: first, the offense must involve

the use of the foreign bank account; and second, the use must be to “conceal the true

nature or extent of the fraudulent conduct.” The Commission appears to have

included this subsection because:

      [o]ffenses that involve the use of transactions or accounts outside the
      United States in an effort to conceal illicit profits and criminal conduct
      involve a particularly high level of sophistication and complexity. These
      offenses are difficult to detect and require costly investigations and
      prosecutions. Diplomatic processes often must be used to secure
      testimony and evidence beyond the jurisdiction of United States courts.

U.S.S.G. § 2F1.1, comment. (backg’d). Thus, the provision was designed to punish

and deter defendants from using foreign accounts to conceal illicit profits and criminal

conduct, because the use of foreign bank accounts often resulted in additional

difficulties imposed on the government in investigating the defendant. Consequently,

we hold that for an offense to “involve the use of a foreign bank account,” the foreign

bank account was used to further the underlying offenses, or somehow was used to

                                          17
hinder the investigation and/or the prosecution of the underlying offenses.

      In this case, the district court focused on Magluta’s relevant conduct, and not

solely on the possession of false identifications to support the enhancement under this

section. Therefore, as an initial matter, we must determine whether the “offense” as

used under this subsection encompasses Magluta’s relevant conduct of avoiding

capture. The government argues that the driving force behind Magluta’s conduct was

the concealment of himself from law enforcement authorities. Since Magluta was able

to conceal himself and his assets through the use of the money in the foreign bank

account, the enhancement was justified.

      We agree.

      Although Magluta was convicted for possessing and procuring false

identifications documents, his “offense” for sentencing purposes includes all other

relevant conduct that relates to the conviction.8 In this case, Magluta’s relevant

conduct consisted of using those false identifications to avoid arrest and to impede

prosecution of the false identification charge, and other charges. Thus, his “offense”

includes his conduct to avoid capture and prosecution.

      The record reflects that Magluta had a foreign bank account in the name of one


      8
        Relevant conduct includes, “all acts . . .in the course of attempting to avoid
detection or responsibility” for the underlying offense. U.S.S.G. § 1B1.3 (a)(1)
(1990).
                                          18
of his aliases, and that during the time he was concealing himself from law

enforcement officials, he made several withdrawals from that account. Due to the

large amount of money that Magluta possessed in his foreign bank account, he was

able to use the money to conceal himself from the authorities. Moreover, unlike in

cases where the law enforcement officials can capture fugitives by tracking the

fugitive’s domestic bank transactions, the facts of this case show that because

Magluta’s fiscal resources were located in a foreign bank, law enforcement officials

had additional difficulty tracking Magluta.9 Further, it is reasonable to infer that

Magluta’s financial resources gave him the ability to hide in places where law

enforcement officials would not normally look for a fugitive, e.g., expensive hotels,

and also that the financial resources gave Magluta greater geographic mobility.

Therefore, we hold that Magluta’s “offense” involved the use of a foreign bank

account and that such use hindered the investigations into the offense.

      Magluta further argues that even if the foreign bank account was used, the

enhancement was still improper because it was not used to “conceal the true nature or

extent of the fraudulent conduct.” We disagree. As noted before, the district court

correctly found that the true nature of Magluta’s fraudulent conduct involved the use



      9
        As such, we necessarily reject Magluta’s contention that § 2F1.1(b)(5) was
designed solely to punish “financial” fraud.
                                         19
of false identifications to avoid prosecutions in several jurisdictions. Since we held

that the district court correctly found that Magluta used the money in the foreign bank

account to sustain his fraudulent conduct of hiding himself from law enforcement

officials, we necessarily conclude that the second element is also satisfied.

Accordingly, we hold that the § 2F1.1(b)(5) enhancement was proper.10



      3.     Upward departures

      In addition to the abovementioned enhancements, the district court made a six-

level upward departure based on § 5K2.7, § 2F1.1, Application Note 9, and § 5K2.9.

Magluta argues that the departure was erroneous because the reasons given for the

departures were already used in imposing the enhancements. We review a district

court's decision to depart from the Guidelines for an abuse of discretion. See Koon,

518 U.S. at 100, 116 S.Ct. 2035. In reviewing departures from the Guidelines, this

Court has developed a three-part test:

      (1) Was the aggravating circumstance cited by the district court
      adequately taken into consideration by the Sentencing Commission in
      formulating the Guidelines?


      10
         Section 2F1.1(b)(5) requires the base offense level to be raised to 12 if the
base offense level is less than 12. See U.S.S.G. § 2F1.1(b)(5). Since we affirmed
the enhancement under this section, Magluta’s challenge to the § 2F1.1(b)(3)(B)
enhancement is moot because that enhancement would have no effect on Magluta’s
base offense level.
                                          20
      (2) If adequate consideration was not given to the circumstance, was
      consideration of the circumstance consistent with the goals of the
      Sentencing Guidelines?
      (3) If the circumstance was properly taken into account, was the extent
      of the departure from the guideline range reasonable?

United States v. Gunby, 112 F.3d 1493, 1499 (11th Cir. 1997). The first prong of the

test is not present in this appeal. Moreover, since the departure grounds used were

based on factors suggested by the Commission, we need not discuss the second prong

of the test. We address whether the facts in this case adequately fall under the factors

listed to support the departure, and if they do, whether the amount of the departure is

reasonable.

              a.    Section 5K2.7

      If the “defendant’s conduct resulted in a significant disruption of a

governmental function,” § 5K2.7 allows the district court to depart from the

Guidelines. The district court based the departure on the following three reasons:

first, Magluta’s use of false identifications led to the disruption of the orderly process

of the court; second, at the time of the arrest, there were four outstanding warrants for

him which disrupted the administration of justice; and third, that the U.S. Marshals

Service expended a tremendous amount of resources to apprehend him.

      Magluta argues that with the exception to the latter, the district court’s stated

reasons are repetitive of the reasons given for the § 2F1.1(b)(3)(B) enhancement.


                                           21
Moreover, he argues that his conduct did not “disrupt governmental function” as

defined under § 5K2.7. With respect to his first argument relating to double-counting,

Magluta’s argument is mooted by our decision today. Since § 2F1.1(b)(3)(B) (and the

reasons given therefore) enhancement has no effect on the base offense level, we hold

that even if the reasons given for the § 2F1.1 enhancement were used again to support

the upward departure, that double counting is, at best, harmless error. That being

said, we first direct our attention to whether the reasons given by the district court can

support the departure under § 5K2.7.

      Magluta’s main argument with respect to this provision is that there was no

“disruption” of governmental function as defined by § 5K2.7 because the cases

upholding the § 5K2.7 departure reveal two distinct fact patterns, in neither of which

this case fell. Magluta identifies that the first group of cases involve defendants who

were government employees whose crimes seriously compromised the ability of their

governmental employer to perform its appointed functions. See, e.g., United States

v. Gunby, 112 F.3d 1493, 1500-03 (11th Cir. 1997) (a magistrate embezzling filing

fees); United States v. Baird, 109 F.3d 856, 871 (3d Cir. 1997) (corrupt police officer).

The other group of cases involve offenses of the outside actor that significantly

frustrate the normal day-to-day operations of government. See, e.g., United States v.

Kramer, 943 F.2d 1543, 1550 (11th Cir. 1991) (a crashed helicopter on prison grounds


                                           22
in an unsuccessful prison escape justified a § 5K2.7 departure); United States v.

Kikumura, 918 F.2d 1084, 1117 (3d Cir. 1990) (disallowing a § 5K2.7 departure

based on a defendant’s intent to bomb federal buildings in order to influence policy).

Magluta argues that since the facts of this case do not fall into either category, there

was no “disruption” of a governmental function.

      The government argues that Magluta’s conduct disrupted the governmental

function in two ways. First, Magluta imposed substantial costs upon the Marshal’s

Service which, beginning in January 1990, had provided assistance to other law

enforcement agencies. Second, Magluta undermined the ability of courts and the

criminal justice system to enforce its judgments and thereby societal order.

      Initially, we reject Magluta’s contention that the facts of this case must fall into

one of the two patterns in order to support a “disruption of governmental function”

departure. We find nothing in the case law or the Sentencing Guidelines that limits

the application of § 5K2.7 to just the two fact patterns. Further, we disagree with the

government’s argument that Magluta’s acts significantly disrupted the functions of the

Marshal’s Service because one of the functions of the Marshal’s Service is to track

fugitives. See 28 U.S.C. § 566(e)(1)(B). The record does not show that the Marshal’s

Service was significantly disrupted by Magluta’s use of the false identification

documents. The Marshals were merely carrying out their normal duties of tracking


                                           23
fugitives.

      With respect to the government’s second argument that Magluta undermined

the ability of various courts to enforce its judgments, we hold that the district court’s

finding was proper. As we noted in United States v. Gunby, 112 F.3d 1493, 1502

(11th Cir. 1997), the most basic function of the court system is to promote the rule of

law, which cannot function properly if the people lose respect for, and confidence in,

the judiciary. We conclude that it was reasonable for the district court to find

Magluta’s continuous disregard for the rule of law, as evidenced by the number of

outstanding warrants, coupled with his extravagant lifestyle while a fugitive, caused

people to lose confidence in the effectiveness of the judicial system and, in turn,

disrupted the orderly process of the administration of justice. Therefore, we hold that

the district court did not abuse its discretion in upward departing Magluta’s base

offense level.

             b.     Application Note 9 of § 2F1.1

      As another basis for the upward departure, the district court relied on

Application Note 9 of § 2F1.1, which reads: “[d]ollar loss often does not fully capture

the harmfulness and seriousness of the conduct. In such instances, an upward

departure may be warranted.” Specifically, the district court found that subsection (e)

applied to Magluta’s offense, which allows a departure if a defendant’s conduct


                                           24
caused a “loss of confidence in an important institution.” The “institution” that the

district court referred to was the judicial system.

      The record shows that the district court relied on the same conduct that

supported the application of § 5K2.7 to apply Application Note 9. Mainly, to support

both grounds for upward departures, the district court found that the “loss of

confidence” in the court system resulted in a “disruption of a governmental function.”

In essence, we find that the reasons given by the district court to support the

departures were extremely similar, and thus, we conclude that the district court abused

its discretion in relying on the same conduct to upward depart under § 5K2.7 and

Application Note 9.

             c.     Section 5K2.9

      The district court also found that § 5K2.9 applied, which permits a departure

if the “defendant committed the offense in order to facilitate or conceal the

commission of another offense.” The district court stated, “based upon the facts and

circumstances of this case, there are indications of tax evasion, possession of a firearm

by a convicted felon and of course bond jumping.” Magluta argues that since the

district court did not find by a preponderance that he had committed the offense of tax

evasion and felon-in-possession of a firearm, but that there were “indications” of such

conduct. Consequently, he argues, that finding is inadequate to support the departure.


                                           25
Alternatively, Magluta argues that even if there was sufficient evidence to support a

finding that Magluta committed the offenses of tax evasion and felon-in-possession,

the district court erred because it made no finding that he acquired and possessed false

identification documents in order to commit those offenses. We reject both of these

arguments.

       We find that the record sufficiently shows that Magluta acquired and possessed

the false documents in order to commit the offense of tax evasion, and felon-in-

possession. The record reflects that Magluta did not have a steady source of

legitimate income, yet he possessed money in excess of $1.2 million, and lived an

extravagant life. In addition, he held some of these assets in a bank account opened

through the use of a false identification. Under these facts, it is reasonable to infer and

find by a preponderance that Magluta acquired false identifications to facilitate his

hiding of assets from the government – mainly, the Internal Revenue Service.

Moreover, with regard to the felon-in-possession charge, Magluta used one of his

aliases, Angelo Maretto, to purchase a firearm. This is strong circumstantial evidence

that Magluta obtained the false identification to illegally purchase the firearm, because

he knew he could not purchase a firearm in his own name. Based on these pieces of

evidence, we conclude that the district court correctly found that Magluta committed

the offense to facilitate the crime of tax evasion and felon-in-possession of a firearm,


                                            26
and that he possessed the false identifications to facilitate the commission of those

crimes. Accordingly, we find no abuse of discretion in the district court’s reliance

of § 5K2.9 as a departure ground.

      In sum, we find that the reasons given by the district court in support of the

departure satisfies the first two prongs of the Gunby test. Magluta’s base offense level

does not adequately take into consideration the aggravating circumstances stated by

the district court. Per the third prong of the test -- whether the extent of the departure

is reasonable -- we must remand. Since we found that one of the grounds relied on by

the district court constituted double counting, we must remand for a determination by

the district court of whether a six-level departure can be reasonably supported by just

the two factors in § 5K2.7 and § 5K2.9.

      4.     Criminal history category departure in the false identification case

      The district court raised Magluta’s criminal history category from III to VI in

the false identifications case. Magluta argues that the court erred in departing because

it relied on impermissible grounds. We review the district court’s decision to depart

for abuse of discretion. See Koon, 518 U.S. at 97, 116 S.Ct. at 2046 (1996); United

States v. Hoffer, 129 F.3d 1196, 1199 (11th Cir. 1997).

      Section 4A1.3 allows the sentencing court to upward depart on the criminal

history category “[i]f reliable information indicates that the criminal history category


                                           27
does not adequately reflect the seriousness of the defendant’s past criminal conduct

or the likelihood that the defendant will commit other crimes.” In addition, § 4A1.3

provides some non-exhaustive list of examples which demonstrate possible bases of

departure, such as “whether defendant was pending trial or sentencing on another

charge at the time of the instant offense.” U.S.S.G. § 4A1.3(d).

      The record reflects that the district court based the upper departure on three

grounds: first, Magluta’s fugitive status as a result of pending charges in California

and Florida; second, the likelihood of recidivism “based upon the facts and

circumstances of this case;” and third, the fact that Magluta used false identification

after he absconded himself from the trial. The district court chose the criminal history

category of VI because “it is the criminal history category which adequately reflects

the defendant’s conduct, taking into consideration the number of charges that were

pending against him during the offense and the likelihood of recidivism.”

      Magluta argues that the reasons given by the district court cannot support

departure in the false identifications case because they relate to acts that were

contemporaneous with, if not part of, the underlying offense. See United States v.

Ledesma, 979 F.2d 816, 821 (11th Cir. 1992) (“[T]he criminal history category

depends on the defendant’s conduct prior to, rather than contemporaneous with, the

offense of conviction.”) In other words, he argues that a § 4A1.3 departure can only


                                          28
be based on conduct that occurred prior to the current offense.

      Magluta also argues that since the district court already considered the previous

pending charges as relevant conduct in calculating the base offense level, they were

part of the offense in this case, and thus, they too could not be used as a basis of

criminal history departure. See United States v. Adudu, 993 F.2d 821, 823 (11th Cir.

1993) (“if the criminal acts were ‘part of . . . the same course of conduct or common

scheme or plan as the offense of conviction,’ then, as a matter of law, it was an

impermissible ground upon which to base a criminal history departure.”) (quoting

United States v. Jones, 948 F.2d 731, 737 n.11 (D.C. Cir. 1991)). The government

does not directly dispute Magluta’s contentions, but rather argues that the district

court did not abuse its discretion by departing because it also relied on Magluta’s post-

flight conduct of acquiring more false identification to determine the risk of

recidivism. The government relies on United States v. Fayette, 895 F.2d 1375 (11th

Cir. 1990) for the proposition that Magluta’s acts of gathering more false

identifications further supports the risk of recidivism, and in turn, supports the

criminal history departure. We agree.

      In Fayette, we held that § 4A1.3 was the appropriate mechanism, as opposed

to an unguided § 5K2.0 departure, for factoring a defendant’s post-plea offenses to the

defendant’s sentence. See Fayette, 895 F.2d at 1380. While reaching this conclusion,


                                           29
we suggested that the timing of the offenses was insignificant with respect to a §

4A1.3 departure, and considered that such post-plea conduct under § 4A1.3 as a basis

for a departure was consistent with the “individual deterrence” objective of the

Guidelines. See id. Similarly, we reject Magluta’s argument that only the conduct

that occurred prior to the offense can be considered for the purposes of § 4A1.3

departure; all conduct that occurred prior to sentencing, that was not already

considered as part of the offense of conviction, can be considered in determining the

risk of recidivism, and in turn, can support a criminal history category departure.11

      In the case at bar, the district court relied, in part, on Magluta obtaining and

using more false identifications after he jumped bond to support the departure. That

conduct was not part of the offense of conviction, nor was it considered as relevant

conduct in calculating the base offense level. Since Magluta was convicted of

possessing and using false identification documents, his post-conviction, pre-sentence

procurement of more false identifications shows that there was a likelihood of

recidivism. We find no error in the district court’s finding in that respect. However,

we do find that the other two grounds the district court stated – the pending cases


      11
          Our holding today does not conflict with the Adudu case. In Adudu we
merely held that conduct that is part of the offense cannot be a basis for a criminal
history departure. See Adudu, 933 F.2d 821, 823. Nothing in Adudu prevents the
district court from considering post-conviction, pre-sentencing conduct when
making a criminal history category departure.
                                          30
against Magluta, and the risk of recidivism stemming therefrom – were already

factored into the calculation of Magluta’s base offense level through the relevant

conduct provisions. See supra.

      Having so decided, we must remand the case for a determination regarding the

propriety of the three-level departure. On remand, the district court should make a

determination as to how much departure is appropriate when considering only the

conduct that was not part of the offense of conviction.

C.    Sentencing in the bond jumping case

      1.     Whether the district court properly imposed consecutive sentences

      After the consolidated sentencing hearing, the district court imposed a separate

sentence for the bond jumping case to run consecutively to the false identification

case. In his reply brief, Magluta conclusively argues for the first time that under

Application Note 3 of § 2J1.6,12 the district court was required to treat his bond jump

solely as a two-level upward adjustment for obstruction of justice in the false

identification case, and not as a separate case for sentencing purposes.

      This Court "consider[s] sentence objections raised for the first time on appeal

under the plain error doctrine to avoid manifest injustice." United States v. Hansley,



      12
        The district court used the 1997 version of the Sentencing Guidelines to
calculate Magluta’s base offense level in the bond jumping case.
                                          31
54 F.3d 709, 715 (11th Cir.1995) (quoting United States v. Newsome, 998 F.2d 1571,

1579 (11th Cir.1993)). For the Court to correct plain error: (1) there must be error;

(2) the error must be plain; and (3) the error must affect substantial rights. See United

States v. Vazquez, 53 F.3d 1216, 1221 (11th Cir.1995); see also United States v.

Olano, 507 U.S. 725, 731-35, 113 S.Ct. 1770, 1776-77 (1993). In addition, the error

must “seriously affect the fairness, integrity, or public reputation of a judicial

proceeding.” United States v. Humphrey, 164 F.3d 585, 588 n.3 (11th Cir. 1999)

(citing Olano, 507 U.S. at 732.)

      Application Note 3 of § 2J1.6 states in part: “[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 account and the count(s) for

the underlying offenses are grouped together under §3D1.2(c).” Based on this

language, Magluta argues that the district court should have only imposed a § 3C1.1

enhancement to the false identification case for his bond jump instead of performing

a separate calculation for the bond jumping case. In contrast, the government argues

that Application Note 3 should not apply because it conflicts with the statutory

language in the failure to appear statute, 18 U.S.C. § 3146(b), which mandates that,

“[a] term of imprisonment imposed pursuant to this section shall be consecutive to the


                                           32
sentence of imprisonment for any other offense.”13 The government argues that since

the Guideline’s grouping rule conflicts with the statutory language and cannot be

reconciled with the statutory mandate of a consecutive sentence, the Sentencing

Guideline should not be followed. See, e.g., United States v. Packer, 70 F.3d 357, 359

(5th Cir. 1995) (“The [G]uideline treatment of section 3146(b)(2) would defeat the

statutory intent that a failure to appear offense be considered separate and distinct

from the underlying offense, warranting a separate and distinct penalty.”)

      We agree with Magluta that the district court may have committed an error by

not following the application note to § 2J1.6. However, there is no need for us to

address whether the Guideline does conflict with the statutory language, because we

cannot find that the district court committed an error that is “plain.” As we have

explained in Humphrey, a district court’s error is not “plain” or “obvious” if there is

no precedent directly resolving a issue. See Humphrey, 164 F.3d at 588. We find

nothing in our case law that directly deals with the potential conflict between the

Guidelines and the failure to appear statute. At the worst, we find that there is at least

room for doubt as to whether the Guideline’s sentencing approach conflicts with the

statutory mandate of the statute. As such, we find that the district court’s decision to


      13
          In Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913 (1993), the
Supreme Court held that the Guideline commentary is authoritative unless it
conflicts with the Constitution or an applicable statute.
                                           33
calculate separate base offense levels in both the false identification case and the bond

jumping case, and to impose a consecutive sentence is not an error that is “plain.”

Thus, we reject Magluta’s argument.

      2.     Enhancement under § 2J1.6(b)(2)

      Above argument notwithstanding, Magluta argues that the district court

erroneously enhanced his base offense level by three levels. Under § 2J1.6, a

defendant’s adjusted base offense level is based on the statutory maximum sentence

for “the underlying offense” on which he failed to appear. U.S.S.G. § 2J1.6 assigns

a base level of six, and then directs that offense level be increased by six levels if the

“underlying offense” is punishable by five or more, but less than 15 years, or by nine

levels if the “underlying offense” is punishable by a term of 15 years or more. See

U.S.S.G. § 2J1.6(b)(2) (1997).

      The district court enhanced Magluta’s offense level by nine levels under §

2J1.6(b)(2)(A), concluding that “the underlying offense” on which Magluta jumped

bond carried a statutory maximum sentence of 50 years, the aggregate of the five year

statutory maximum on each of the ten counts of the indictment. Magluta argues that

the district court should have interpreted the terms “underlying offense” to only

include the most serious of the ten counts, and use it to calculate the appropriate

amount of enhancement. In other words, under Magluta’s interpretation of the


                                           34
“underlying offense,” the maximum sentence that should be used to calculate the

enhancement should be five years.

      In support of his position, Magluta relies on United States v. Iddeen, 854 F.2d

52 (5th Cir. 1988). In Iddeen, a pre-guidelines case, Iddeen was convicted of ten

counts of mail fraud, which carried a five year maximum on each count, and was

released on bond pending sentencing. See id. at 53. Iddeen jumped bond, but was

later captured and convicted for failure to appear in violation of 18 U.S.C. § 3146. In

formulating a sentence under the failure to appear statute, the district court aggregated

maximum sentences in the ten counts of mail fraud and sentenced Iddeen to ten years

of imprisonment under § 3146(b)(1)(A), which was to run consecutive to the forty

years he received for the mail fraud convictions. See id. The Fifth Circuit remanded,

holding that the terms “an offense punishable by” used in § 314614 means the

maximum punishment of one offense, out of all the counts in the indictment, and not



      14
        18 U.S.C. § 3146 proscribes punishment for violations as follows:
(b) Punishment.–(1) The punishment for an offense under this section is--
      (A) if the person was released in connection with a charge of, or while
awaiting sentence, . . .
             (i) an offense punishable by death, life imprisonment, or
imprisonment for a term of 15 years or more, a fine under this title or
imprisonment for not more than ten years, or both;
             (ii) an offense punishable by imprisonment for a term of five years or
more, a fine under this title or imprisonment for not more than five years, or both[.]
18 U.S.C. § 3146.
                                           35
the aggregate of all offenses charged. See id. at 56.

      The government first argues that the district court correctly interpreted the

terms “the underlying offense” to encompass the aggregation of all the counts in the

complaint because aggregating the sentences best fulfills the objective of providing

greater deterrence to defendants who are facing longer prison terms, as opposed to a

defendant who only faces a light sentence. Second, the government argues that under

the plain language, the phrase “the underlying offense” within § 2J1.6(a) reflects the

Commission’s intent to reach the full scope of penalties that a bond jumping defendant

seeks to escape. Under its view, the government suggests that the use of the definite

article “the” to modify “underlying offense” distinguishes § 2J1.6 from the statutory

language relied on by the Iddeen court, and that in light of vast number of federal

indictments being multi-count indictments, “§ 2J1.6(b)(2) necessarily considers the

multiple counts of an indictment as part of the same ‘underlying offense.’” We

disagree with the government.

      First, we believe that the operative word to focus on is the word “offense,” as

opposed to “offenses,” and not on the articles “the” or “an.” With the proper focus,

we find no ambiguity in the words “the underlying offense.” The terms describe one

offense, and nothing more. If we were to adopt the government’s argument, we would

be giving a plural meaning to the otherwise plain, singular meaning of the word


                                         36
“offense.” We find nothing in the Guidelines or the case law which suggests that

Commission really meant the plural when it used the singular term “offense.”

      If the Commission wanted “the underlying offense” to mean the aggregate of

all the counts, it could have removed all doubt by using the plural form of the word

offense, “offenses.” This logic is even more probative of the Commission’s intent

when viewed in the fact that the Commission should have been aware of the holding

in Iddeen-- a pre-guideline case -- when it promulgated subsequent revisions to the

Guidelines.

      Thus, we carry over the reasoning in Iddeen to the Guidelines, and hold that the

terms “the underlying offense” refers to the one count in the indictment--the most

serious of the counts referred to in the indictment--and not the aggregate of all the

maximum penalties in the counts under § 2J1.6. Accordingly, we hold that the district

court erred in enhancing Magluta’s base offense level in the bond jumping case by

nine levels.

      3.       Obstruction enhancement under § 3C1.1

      The district court imposed a two level obstruction of justice enhancement to

Magluta’s base offense level under § 3C1.1, reasoning that the enhancement was

“appropriate under the facts and circumstances of this case based on the documents

that were found on the defendant at the time of his arrest and the additional fraudulent


                                          37
identifications and the use of those identifications . . . .” Section 3C1.1 provides for

a two level increase in the offense level if the defendant “willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of justice during the

investigation, prosecution, or sentencing of the instant offense.” U.S.S.G. § 3C1.1

(1997). However, for failure to appear offenses and other offenses covered under §

2J1.6, the Commission instructs that the obstruction enhancement “does not apply,

unless the defendant obstructed the investigation or trial of the failure to appear

count.” U.S.S.G. § 2J1.6 comment. (n.2). We review the district court’s factual

findings of obstruction of justice for clear error, and its legal conclusions de novo.

See United States v. Arguedas, 86 F.3d 1054, 1059 (11th Cir. 1996).

      Magluta argues that the enhancement was improper because the reasons on

which the district court relied to support the enhancement were already taken into

consideration in formulating the applicable guideline, and that he did not obstruct the

investigation or trial of his bond jump. With regard to his first argument, Magluta

relies on United States v. Sarna, 28 F. 3d 657 (7th Cir. 1994). In Sarna, the Seventh

Circuit, in the context of a guideline departure, opined that fleeing the jurisdiction,

traveling, working under assumed names, and evading law enforcement officials were

types of conduct that “commonly inhere in the offense of failure to appear,” and thus,

such conduct could not be a basis for a departure from the Guidelines. Sarna, 28 F.3d


                                          38
at 662. Similarly, Magluta argues that his post-flight conduct-- hiding from law

enforcement authorities by using false identification--was already factored into his

base offense level because such conduct is inherent in the crime of failure to appear.

We reject this argument.

      Magluta oversimplifies his post-flight conduct. Even if we were to agree with

the Sarna court and hold that certain typical post-flight conduct is inherent in the

crime of failure to appear, we cannot say that Magluta’s conduct falls within that

category.15 Unlike the defendant in Sarna, Magluta was not merely working under

assumed names or avoiding law enforcement officials by his own conduct. As noted

before, the district court based the enhancement on the documents found on Magluta

at the time of his arrest. These documents evidenced Magluta directing his family and

friends to assist him in remaining at large by assessing a large amount of cash, erasing

his asset trail, and instructing his son regarding the son’s grand jury testimony.

      Based on these pieces of evidence, the district court could have easily found

that Magluta obstructed justice when law enforcement officials were attempting to

apprehend Magluta. We do not find that Magluta’s conduct of enlisting his friends

and family members to help him remain a fugitive is the type of conduct that is


      15
         We express no opinion with regard to whether fleeing the jurisdiction,
working under aliases and evading law enforcement officials are types of conduct
that are inherent in the crime of failure to appear.
                                          39
“inherent” in the offense of failure to appear. Quite the contrary, we find that such

conduct is classic obstructive conduct.

      Accordingly, we find no error in the district court’s decision to enhance

Magluta’s base offense level for obstructing justice.

      4.     Criminal history category departure in the bond jumping case

      Magluta argues that the district court erroneously departed upward on his

criminal history category in the bond jumping case because the bases which the

district court used to depart were already used in departing in the false identifications

case. We review the district court’s decision to depart under the abuse of discretion

standard. See Hoffer, 129 F.3d at 1199.

      Contrary to Magluta’s argument, we do not find that the district court relied on

identical facts to support a risk of recidivism finding in both cases. The record shows

that while granting the government’s motion for an upward departure in the bond

jump case, the district court relied on the risk of recidivism as suggested by Magluta’s

past and present bond jumps. In making a criminal history category departure in the

false identification case, however, the district court relied on the risk of recidivism,

as shown partly by Magluta’s post-flight conduct of obtaining more false

identifications, to support a criminal history departure.

      The crimes to which the particular recidivism risk applies are different: in the


                                           40
bond jump case, the risk of recidivism relates to the chance that Magluta will jump

bond in the future. In the false identification case, the recidivism risk relates to the

chance that Magluta will possess and/or use more false identifications in the future.

Due to this critical distinction, we conclude that the district court relied on different

factual bases while departing from Magluta’s criminal history category. More

importantly, we do not find that the district court abused its discretion while departing

upward.

D.    Consecutive supervised release

      The district court also imposed a three year supervised release in both cases to

be served consecutively. As Magluta and the government correctly point out, “any

term of supervised release imposed is to run concurrently with any other term of

supervised release imposed.” See 18 U.S.C. § 3624(e) (“The term of supervised

release commences on the day the person is released from imprisonment and runs

concurrently with any Federal, State, or local term of probation or supervised release

or parole for another offense to which the person is subject or becomes subject during

the term of supervised release”); U.S.S.G. § 5G1.2 comment. Accordingly, we vacate

the sentence of consecutive term of supervised release and remand for re-sentencing.

                                 V. CONCLUSION

      We affirm the conviction in the false identification case. However, we must


                                           41
vacate the sentences entered in both cases, and remand for re-sentencing.

      In the false identification case, the district court should address on remand

whether the six-level upward departure in the base offense level can be supported

by the factors listed in § 5K2.7 and 2.9. Similarly, the district court should also

determine whether the three-level upward criminal history departure can be

supported based on Magluta’s acts that were not part of his “offense” as defined in

the Guidelines.

      In the bond jumping case, Magluta’s adjusted base offense level must be

recalculated by only enhancing the base offense level by six levels, and not nine.

      Lastly, the sentence of consecutive supervised release is vacated. The

supervised release should run concurrently as directed by the Guidelines.

      AFFIRMED in part, VACATED and REMANDED in part.




                                          42
