                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               FEB 9 1999
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                          No. 98-5105
 v.
                                                     (D.C. No. 98-CR-17-B)
                                                 (Northern District of Oklahoma)
 MICHAEL HUGHES,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.


      Appellant Michael Hughes asserts a Fifth Amendment double jeopardy

challenge to his conviction and sentence for failure to appear at a sentencing

hearing. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

      Michael Hughes pled guilty to possession of a firearm after a prior felony

conviction. Released on bond, Hughes failed to appear on the date originally

scheduled for sentencing. The sentencing court therefore enhanced his sentence



      *
        The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 36.3.
by two levels for obstruction of justice under § 3C1.1 of the United States

Sentencing Guidelines (“U.S.S.G.”). Separately, the government indicted Hughes

under 18 U.S.C. § 3146(a)(1) for failure to appear. Hughes argued that given the

sentence enhancement, he had already been punished for failing to appear. He

therefore moved, unsuccessfully, to dismiss the indictment, contending that it

sought to put him in jeopardy twice for the same offense. Hughes ultimately

entered a conditional plea of guilty, reserving the right to appeal the denial of his

motion to dismiss.

      We note initially that in sentencing Hughes for failure to appear, the court

took into account the enhancement attributable to the possession of firearm

charge, and therefore reduced his sentence by two levels to avoid what it called

“double counting.” Nevertheless, Hughes argues, double jeopardy may still attach

in the form of collateral consequences.

      We review a sentencing court’s factual determinations for clear error, see

United States v. Havens, 910 F.2d 703, 704 (10th Cir. 1990), and we subject its

legal interpretation of the Sentencing Guidelines to de novo review, see United

States v. Torres, 99 F.3d 360, 362 (10th Cir. 1996). We also review a court’s

ruling on a motion to dismiss an indictment on double jeopardy grounds de novo.

See United States v. German, 76 F.3d 315, 317 (10th Cir. 1996). The Fifth

Amendment provides that no person “be put twice in jeopardy” for the same


                                          -2-
offense. U.S. Const. amend. V. To prevail on his double jeopardy claim, Hughes

must therefore show that he faced “successive punishment and successive

prosecution” for failing to appear at sentencing. United States v. Dixon, 509 U.S.

688, 704 (1993).

       U.S.S.G. § 3C1.1 provides for a two-level increase in the offense level if a

“defendant willfully obstructed or impeded . . . the administration of justice

during the investigation, prosecution, or sentencing of the instant offense.” The

conduct to which § 3C1.1 applies includes “escaping or attempting to escape from

custody before trial or sentencing; or willfully failing to appear, as ordered, for a

judicial proceeding.” U.S.S.G. § 3C1.1, comment. (n.4(e)). Having failed to

appear as ordered at a sentencing hearing, Hughes’ sentence enhancement is in

accord with Supreme Court precedent. See Witte v. United States, 515 U.S. 389,

399 (1995) (stating that “use of evidence of related criminal conduct to enhance a

defendant’s sentence for a separate crime within the authorized statutory limits

does not constitute punishment for that conduct within the meaning of the Double

Jeopardy Clause.”).

      Hughes argues that Witte is inapplicable because the court enhanced the

defendant’s sentence under U.S.S.G. § 1B.1.3(1), which applies to conduct

occurring “during the commission of the offense of conviction, [or] in preparation

for that offense.” In his case, Hughes contends, the relevant conduct—his failure


                                         -3-
to appear at sentencing—occurred after, not during or in preparation for, the

underlying offense.

      In United States v. Rhode, 159 F.3d 1298 (10th Cir. 1998), we rejected a

similar argument, and held that for double jeopardy purposes, the difference

between enhancements under U.S.S.G. §§ 3C1.1 and 1B.1 “is merely temporal”

and irrelevant. Rhode, 159 F.3d at 1303. Notwithstanding this temporal

distinction, a defendant’s willingness to obstruct justice, “like a defendant’s

willingness to commit multiple offenses, ‘necessarily provides important evidence

that the character of the offender requires special punishment.’” Id. (quoting

Witte, 515 U.S. at 403). In this case, Hughes’ failure to appear at sentencing

“showed that his character deserved special punishment.” Id. The enhancement

therefore punished Hughes for the underlying offense to which he pled guilty, not

for his failure to appear.

      Although the sentence enhancement did not punish Hughes for failure to

appear, the Double Jeopardy Clause would require dismissal of the failure to

appear charge if the enhancement constituted prosecution for the same offense.

We have held, however, that a sentencing hearing in which a court bases a

sentence in part on relevant conduct does not constitute prosecution for the

relevant conduct. See Rhode, 159 F.3d at 1304 (citing United States v. Koonce,

885 F.2d 720, 722 (10th Cir. 1989)). On the basis of these precedents, Hughes’


                                         -4-
subsequent prosecution did not constitute successive prosecution for double

jeopardy purposes.

      AFFIRMED. The mandate shall issue forthwith.

                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge




                                       -5-
