                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4728



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


THOMAS E. SMOLKA,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (3:05-cr-00525-REP)


Argued:   November 2, 2007                 Decided:   January 11, 2008


Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Robert James Wagner, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. S. David Schiller, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Acting Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellant. Chuck Rosenberg, United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Thomas E. Smolka appeals his conviction for failing to appear

at a court proceeding in violation of 18 U.S.C.A. § 3146(a)(1)

(West 2000), and he raises numerous challenges to his sentence. We

affirm.

       In January 2003, Smolka pled guilty to mail and wire fraud

charges stemming from his scheme, as a licensed attorney, to

defraud clients by falsely promising to provide them legal advice

during post-conviction relief proceedings.            Smolka was released on

bond    pending   his   August    28,    2003,   sentencing   in   the   Eastern

District of Virginia, but he fled the jurisdiction and failed to

appear at sentencing.        Federal marshals eventually located Smolka

in Portland, Oregon, and arrested him on March 23, 2004.                 He was

returned to the Eastern District of Virginia and, in September

2004, sentenced to a prison term of 78 months on the mail and wire

fraud convictions.         In reaching this sentence, the district court

took into account Smolka’s failure to appear for sentencing and

imposed an obstruction enhancement under U.S.S.G. § 3C1.1.

       During the time that he was a fugitive in Oregon, Smolka,

operating under a false identity, concocted various fraudulent

schemes that resulted in additional fraud-based charges. In August

2004,    after    Smolka    had   been   returned   to   federal   custody   in

Virginia, a federal grand jury in Oregon indicted him on a number

of charges, including mail fraud, bank fraud, and Social Security


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fraud.    In August 2005, Smolka pled guilty in Oregon to these three

charges, for which he received a sentence of 37 months to run

consecutively to the 78-month sentence imposed in the Eastern

District of Virginia.

     Finally,     on    December    6,     2005,      Smolka     was   indicted   for

violating 18 U.S.C.A. § 3146 based on his failure to appear at his

sentencing for mail and wire fraud in August 2003 in Virginia.

Section 3146(a)(1) punishes anyone who has been released under 18

U.S.C.A. § 3143(a) pending sentencing and “knowingly . . . fails to

appear before a court as required by the conditions of release.”

18 U.S.C.A. § 3146(a)(1).            Following unsuccessful motions for

recusal    of   the    district    judge       and   for   the   dismissal   of   the

indictment for prosecutorial vindictiveness, Smolka opted for a

bench trial.      However, when the district court advised him that

this option could undermine his recusal argument on appeal, Smolka

requested a jury trial.       At trial, Smolka stipulated to all of the

government’s evidence and presented no evidence of his own.                       The

jury returned a guilty verdict.

     The    district     court    imposed       a    60-month    sentence    to   run

consecutively to his other sentences.                This sentence consisted of

a 51-month term for the failure to appear offense under 18 U.S.C.A.

§ 3146(a)(1), plus an enhancement of nine additional months under

18 U.S.C.A. § 3147 (West 2000).




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      On appeal, Smolka argues that the district court erred in

denying his motion to dismiss the indictment as vindictive. Smolka

contends that the government intentionally delayed charging him

with failure to appear under § 3146(a)(1) in order to manipulate

the sentencing guidelines to produce a much greater sentencing

range than would have otherwise applied.              According to Smolka, if

the government had charged him earlier, the district court could

have sentenced him for the failure to appear conviction and the

predicate mail and wire fraud convictions at the same time, and the

guidelines would have required the court to group the charges. See

U.S.S.G. § 3C1.1, cmt. n.8.        Application of the grouping rules,

argues Smolka, would have yielded concurrent, not consecutive,

sentences.

      The district court rejected Smolka’s argument, finding that he

failed to present sufficient evidence of vindictiveness on the part

of   the   government   to   overcome       the    presumption   of   regularity

attached to prosecutorial decisions. See United States v. Johnson,

325 F.3d 205, 210 (4th Cir. 2003).                The district court likewise

rejected Smolka’s claim that the pre-indictment delay, i.e., “the

passage of time between the alleged crime and the indictment,”

deprived him of his right to a fair trial under the Due Process

Clause, see United States v. Marion, 404 U.S. 307, 323-24 (1971),

concluding that Smolka suffered no prejudice from the separate

trial and sentencing on the failure to appear charge.


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      We agree that Smolka failed to establish this claim.                      Having

reviewed       the    record,    we    find   it   devoid    of   facts    suggesting

vindictiveness by the prosecution.                   The alleged pre-indictment

delay is the result of Smolka’s own conduct, including his flight

from justice and the criminal activity he engaged in while he was

a fugitive.          Accordingly, we affirm the denial of his motion to

dismiss the indictment as vindictive.

      Next, Smolka argues that the district judge was required to

recuse himself under 28 U.S.C.A. § 455 (West 2006), which mandates

that any district judge “disqualify himself in any proceeding in

which    his    impartiality         might    reasonably     be   questioned.”        28

U.S.C.A. § 455(a). Moreover, disqualification is required “[w]here

[the judge] has a personal bias or prejudice concerning a party, or

personal knowledge of disputed evidentiary facts concerning the

proceeding.”         28 U.S.C.A. § 455(b)(1).          Smolka points to various

snippets of the record that purportedly call into question the

impartiality of the district court, including the judge’s comments

during   the     prior    2004       sentencing    hearing    that   Smolka     was   an

“embarrassment” to the legal profession; that he preyed on weak and

vulnerable victims; and that Smolka was unlikely to learn any

lesson from his conviction and punishment. Smolka further suggests

that the district judge’s animosity for him was apparent during the

sentencing proceedings for his § 3146 conviction, as reflected by

the   court’s        rulings    on    various     enhancements    and     the   judge’s


                                              5
characterization    of   various   defense    arguments     as   frivolous.

Because none of the comments offered by Smolka, nor any other facts

in the record, rise to the level of disqualifying bias, we conclude

that the district court was well within its discretion to deny the

recusal motion.    See United States v. Cole, 293 F.3d 153, 164 (4th

Cir. 2002). Likewise, the legal rulings made by the district court

in the course of imposing Smolka’s sentence were an insufficient

basis for a recusal motion.     See Liteky v. United States, 510 U.S.

540, 555 (1974) (“[J]udicial rulings alone almost never constitute

a valid basis for a bias or partiality motion.”).

     Smolka also raises several sentencing issues.          First, Smolka

contends that in determining an appropriate sentencing range as

recommended by the guidelines, the district court failed to group

Smolka’s obstruction offense under 18 U.S.C.A. § 3146 with the

“underlying   offense    (the   offense    with   respect   to   which   the

obstruction conduct occurred).”         See U.S.S.G. § 3C1.1, cmt. n.8.

Smolka asserts that proper application of the grouping rules would

have produced the same guideline range for both the failure to

appear offense and the predicate wire and mail fraud offenses as

Smolka originally faced in his 2004 sentencing for only the mail

and wire fraud offenses. Because Smolka’s 78-month sentence was at

the top of the sentencing range used in the 2004 sentencing, Smolka

argues that he should not have received any additional prison time.




                                    6
See, e.g., United States v. Gigley, 213 F.3d 503, 505-07 (10th Cir.

2000).

     The government contends that the language of 18 U.S.C.A.

§ 3146(b)(2) requires that “[a] term of imprisonment imposed under

[18 U.S.C.A. § 3146] . . . be consecutive to the sentence of

imprisonment for any other offense.”                 18 U.S.C.A. § 3146(b)(2)

(emphasis added).     In response, Smolka relies upon the commentary

to U.S.S.G. § 2J1.6, which suggests that the sentencing court may

determine a total sentence for both the underlying offense and the

§ 3146 offense and then divide the sentences between the offense.

     To the extent that a guidelines provision conflicts with a

statute, we must follow the statute. See Stinson v. United States,

508 U.S. 36, 38 (1993).            In view of the clear congressional

directive set forth in § 3146(b)(2), we conclude that the district

court correctly determined that it was required to impose the term

of imprisonment for Smolka’s violation of § 3146(a) consecutively.

See United States v. Packer, 70 F.3d 357, 59-60 (5th Cir. 1995);

United States v. Crow Dog, 149 F.3d 847, 849-50 (8th Cir. 1998).

     Smolka    next   argues     that   he     was   entitled   to   a   downward

adjustment of his offense level for acceptance of responsibility.

See U.S.S.G. § 3E1.1(a).         Smolka’s argument rests on the fact that

he did not object to the obstruction enhancement during the 2004

sentencing    for   his   wire    and   mail    fraud   convictions,     that   he

stipulated to the evidence at trial, and that he proceeded to trial


                                        7
only     to     preserve    for     appeal       the        issues   of   prosecutorial

vindictiveness and recusal.             We disagree.

       The sentencing court’s decision whether or not to award an

acceptance of responsibility adjustment is committed to the court’s

broad discretion.          See U.S.S.G. § 3E1.1, cmt. n.5.                 Typically, a

defendant who proceeds to trial is precluded from receiving a

reduction for acceptance of responsibility.                     See U.S.S.G. § 3E1.1,

cmt. n.2.        Smolka argues that he went to trial only to preserve

issues unrelated to factual guilt.                 See id. (explaining that in

rare instances a defendant who goes to trial may be eligible for

acceptance of responsibility where he does so to challenge the

constitutionality of a statute or contest the applicability of a

statute to his conduct).            Even if the defendant enters a guilty

plea, an acceptance of responsibility adjustment is not automatic.

See U.S.S.G. § 3E1.1, cmt. n.3.                        We agree Smolka failed to

demonstrate that this is the rare case in which an acceptance of

responsibility adjustment is appropriate despite his having gone to

trial.        Smolka is neither raising a constitutional challenge to

§ 3146 nor challenging its application to his conduct. We conclude

that   the     district     court’s     refusal        to    award   an   acceptance    of

responsibility adjustment was not an abuse of discretion.

       Smolka     also     raises   a   double         counting      challenge   to    his

sentence.        In sentencing Smolka for his mail and wire fraud

offenses in 2004, the district court took into consideration his


                                             8
failure to appear for sentencing and increased Smolka’s offense

level by two levels under U.S.S.G. § 3C1.1.         Without the two-level

increase, Smolka’s sentencing range would have been 51-63 months.

In determining Smolka’s total offense level on the failure to

appear offense in 2006, the district court imposed a three-level

enhancement under U.S.S.G. § 2J1.7 and 18 U.S.C.A. § 3147 because

it was an “offense committed while on release.”               See U.S.S.G.

§ 2J1.7 (“If an enhancement under 18 U.S.C. § 3147 applies, add 3

levels to the offense level for the offense committed while on

release . . .”).

     We note that, to avoid any improper double counting, the

district court concluded a downward departure from the resulting

sentencing range was appropriate and reduced the final range by 15

months.     Moreover, we have previously determined that Congress

intended for an enhancement under § 3147 to apply to an offense

under § 3146(a).     Accordingly, we reject Smolka’s double counting

claim.    See United States v. Fitzgerald, 435 F.3d 484, 487 n.3 (4th

Cir. 2006) (“Although the enhancement is based on the conduct in

the underlying offense, such double-counting is . . . authorized”

because    “the   plain,   unambiguous   language   of   §   3147   and   the

Guidelines permit the enhancement.”) (internal quotation marks

omitted).

     Next, Smolka challenges the district court’s conclusion that

his criminal history was underrepresented by criminal history


                                    9
category   III   and   that    category     VI   more   accurately    reflected

Smolka’s criminal history.            See U.S.S.G. § 4A1.3(a)(1).            The

district   court   concluded     that     “Smolka’s     criminal   history    is

underepresentative of the likelihood that he would recidivate,”

J.A. 515, and that “[h]e has repeatedly time after time shown a

willingness to violate the law.         He violated the law while he was

on release . . . and it reflects . . . the kind of extensive

criminal involvement that’s reflected in a category VI criminal

history,” J.A. 516-17.

     Smolka   claims    that    the   district     court’s   upward   criminal

history departure cannot be affirmed because the district court

failed to consider, before settling on category VI, whether the

intermediate criminal history categories adequately represented

Smolka’s criminal history.         When a post-Booker sentencing court

determines that appropriate grounds exist for a departure based on

the inadequacy of Smolka’s criminal history score, the court still

must adhere to our pre-Booker requirement that courts depart

incrementally. See United States v. Dalton, 477 F.3d 195, 199 (4th

Cir. 2007). This practice, however, does not require the court “to

move only one level, or to explain its rejection of each and every

intervening level,” nor do we require the sentencing court to “go

through a ritualistic exercise in which it mechanically discusses

each criminal history category . . . it rejects en route to the

category . . . that it selects.”            Id. (internal quotation marks


                                       10
omitted).   We conclude that the district court provided sufficient

reasoning from which it is apparent that it considered, but found

inadequate, Criminal History Categories IV and V. In affirming the

district    court’s   upward   departure,   we   also   reject   Smolka’s

collateral estoppel argument. See United States v. Salemo, 81 F.3d

1453, 1464 (9th Cir. 1996).

     We have reviewed Smolka’s remaining arguments in light of the

record and the findings of the district court and conclude that

they are without merit.

     Accordingly, we affirm the decision of the district court.



                                                                 AFFIRMED




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