                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                       No. 97-3594
                                       ___________

United States of America,                   *
                                            *
             Appellee,                      *
                                            * Appeal from the United States
      v.                                    * District Court for the
                                            * District of South Dakota
Robert P. Crow Dog,                         *
                                            *
             Appellant.                     *
                                       ___________

                          Submitted:      May 15, 1998

                              Filed:      July 15, 1998
                                       ___________

Before McMILLIAN, NOONAN,1 and MORRIS SHEPPARD ARNOLD,
       Circuit Judges.
                           ___________

McMILLIAN, Circuit Judge.


       Robert P. Crow Dog (Crow Dog) appeals from the sentence imposed by the
District Court2 for the District of South Dakota following his guilty plea to arson, 18


      1
       The Honorable John T. Noonan, Jr., United States Circuit Judge for the Ninth
Circuit, sitting by designation.
      2
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
U.S.C. § 81, and failure to appear, 18 U.S.C. § 3146. The district court sentenced
Crow Dog to a total of 49 months imprisonment (37 months for arson and 12 months
for failure to appear), 3 years supervised release, a special assessment of $150, and
restitution in the amount of $5,500. United States v. Crow Dog, Nos. CR95-30025,
CR96-30059 (D.S.D. Sept. 10, 1997). For reversal, Crow Dog argues that the district
court erred in imposing separate and consecutive sentences for his arson and failure to
appear convictions. Specifically, he argues that, pursuant to the United States
Sentencing Guidelines (Sentencing Guidelines), the district court should have
determined the base offense level with the arson conviction and imposed a two-level
upward adjustment for the failure to appear conviction. See U.S.S.G. § 3C1.1. For the
reasons stated below, we affirm.

                                    Jurisdiction

       Jurisdiction in the district court was proper based upon 18 U.S.C. § 1153.3
Jurisdiction in this court is proper based upon 28 U.S.C. § 3742(a). The notice of
appeal was timely filed pursuant to Rule 4(b) of the Federal Rules of Appellate
Procedure.

                                    Background

       The facts in this case are undisputed. On January 30, 1995, Crow Dog set fire
to a residence on the Rosebud Sioux Indian Reservation. In March 1995 a federal
grand jury in South Dakota indicted Crow Dog and charged him with one count of
arson in violation of 18 U.S.C. § 81. In March 1996 he was arrested in New Mexico
and ordered to appear before a United States magistrate judge in Pierre, South Dakota.
He appeared in South Dakota and was released on bond in April 1996.


      3
      18 U.S.C. § 1153 gives federal district courts exclusive criminal jurisdiction
over Native Americans who commit certain crimes within Indian country.
                                          -2-
        Crow Dog’s trial on the arson charge was scheduled for May 28, 1996. Several
weeks before trial, Crow Dog signed a plea agreement wherein he promised to plead
guilty to arson. A change of plea hearing was scheduled for May 21, 1996. Crow Dog
then absconded to Canada, failing to appear at both the change of plea hearing and for
trial. A warrant was issued for his arrest, and a two-count indictment was returned
charging him with one count of failure to appear at the change of plea hearing and one
count of failure to appear for trial. Crow Dog was arrested in Canada on unrelated
charges and extradition proceedings began. He eventually waived extradition and
returned to the United States.

       On June 18, 1997, Crow Dog entered a guilty plea to one count of arson and one
count of failure to appear. The negotiated plea agreement required that Crow Dog
plead guilty only to one of the failure to appear counts. The initial Presentence
Investigation Report (PSR) did not include a penalty in the form of an upward
adjustment for the failure to appear conviction. The government objected and a revised
PSR recommended that the failure to appear conviction be used to adjust the base
offense level for the arson conviction. This revision resulted in a total offense level for
both offenses of 23 (including a two-level upward adjustment for obstruction of justice,
U.S.S.G. § 3C1.1, and a three-level downward adjustment for acceptance of
responsibility and assistance, U.S.S.G § 3E1.1) with a Sentencing Guideline range of
46-57 months.

      At the sentencing hearing, the district court decided that, pursuant to 18 U.S.C.
§ 3146(b)(2), the failure to appear conviction required a sentence consecutive to the
sentence for the arson conviction.4 Consequently, the district court determined that the
underlying arson conviction established a base offense level of 21 and a Sentencing


      4
        18 U.S.C. § 3146(b)(2) requires that, in the event of a conviction for a failure
to appear, “[a] term of imprisonment imposed under this section shall be consecutive
to the sentence of imprisonment for any other offense.”
                                            -3-
Guideline range of 37-46 months and the failure to appear conviction established a total
offense level of 13 and a Sentencing Guideline rage of 12-18 months. To avoid double
counting, the district court did not use the failure to appear conviction to adjust the base
offense level upward. Instead, the district court treated the convictions separately and
imposed consecutive sentences. The district court sentenced Crow Dog to a total of 49
months imprisonment, specifying that 37 months were for arson and 12 months were for
failure to appear. This appeal followed.

                                       Discussion

        The only question in this case is whether sentencing courts should use a conviction
for failure to appear as an upward adjustment to a base offense level determined by the
underlying conviction or whether they should treat it independently and impose a
sentence separate and consecutive to the sentence for the underlying conviction. The
application of Sentencing Guidelines is a question of law subject to de novo review. See
United States v. Lamere, 980 F.2d 506, 510 (8th Cir. 1992); United States v. Werlinger,
894 F.2d 1015, 1016 (8th Cir. 1990).

       Crow Dog argues that a failure to appear conviction is appropriately treated under
Commentary 3 to U.S.S.G. § 2J1.6: first, determine the base offense level with the
underlying conviction, then group the convictions, treating the failure to appear
conviction as an obstruction of justice pursuant to U.S.S.G. § 3C1.1, and, finally, adjust
the base offense level upward. He also argues that Commentary 3 to U.S.S.G. § 2J1.6
resolves any apparent conflict between the consecutive sentence requirement of 18
U.S.C. § 3146, and the grouping and adjustment requirements of U.S.S.G. §§ 3C1.1 and
3D1.2.5 He argues that the sentencing court can comply with 18 U.S.C. § 3146 by


      5
       When a court imposes a sentence of imprisonment on a failure to appear count,

      the combined sentence must be constructed to provide a “total
                                            -4-
first treating the failure to appear as an upward adjustment to the base offense level and
then dividing the final sentence to satisfy the statutory requirement of a consecutive
sentence. See U.S.S.G. § 2J1.6 cmt. 3. We are not persuaded by this reasoning.

        The district court correctly refused to group the two offenses and correctly
imposed a separate and consecutive sentence for the failure to appear conviction.
Congress specifically provided that, if a sentence is imposed for a failure to appear
count, it must be “consecutive to the sentence of imprisonment for any other offense.”
18 U.S.C. § 3146(b)(2). The intent of the statute is clear: failure to appear for a court-
ordered proceeding is a serious crime and should be deterred by the imposition of a
separate penalty through a consecutive sentence. See United States v. Packer, 70 F.3d
357, 360 (5th Cir. 1995) (interpreting the statute’s intent), cert. denied, 117 S. Ct. 75
(1996). Contrary to the suggested treatment of a sentence in Commentary 3 to U.S.S.G.
§ 2J1.6, the statute does not suggest that a sentencing court might determine a total
sentence for the underlying offense or offenses and the failure to appear and then divide
the sentence among the convictions. The consecutive sentencing requirement of the
statute is in conflict with Commentary 3 to U.S.S.G § 2J1.6. The statute’s requirement
of a consecutive sentence, therefore, prevails over the Sentencing Guidelines. See
Packer, 70 F.3d at 360 (holding that 18 U.S.C. § 3146(b)(2) prevails over Commentary
3 to U.S.S.G § 2J1.6, because the commentary defeats the statute’s intent); cf. United
States v. Vue, 13 F.3d 1206, 1214 (8th Cir. 1994) (“[E]very



      punishment” that satisfies the requirements both of § 5G1.2 (Sentencing
      on Multiple Counts of Conviction) and 18 U.S.C. § 3146(b)(2). For
      example, where the combined applicable guideline range for both counts
      is 30-37 months and the court determines a “total punishment” of 36
      months is appropriate, a sentence of thirty months for the underlying
      offense plus a consecutive six months sentence for the failure to appear
      count would satisfy these requirements.

U.S.S.G. § 2J1.6 cmt. 3.
                                           -5-
appellate court that has considered this question has ruled that a trial court has no
discretion to ignore the directive for consecutive sentences that the [firearms sentencing]
statute contains.”); United States v. Schmeltzer 960 F.2d 405, 408 (5th Cir.) (“All of the
United States Courts of Appeal have agreed that statutorily mandated
sentences. . . prevail over the guidelines when in apparent conflict.”), cert. denied, 506
U.S. 1003 (1992). But see United States v. Pardo, 25 F.3d 1187, 1193-94 (3d Cir.
1994) (treating failure to appear as obstruction of justice enhancement to underlying
fraud offense by applying grouping rules).

        The Sentencing Guidelines acknowledge that some statutes, like the firearms
sentencing statute, 18 U.S.C. § 924(c), require the “imposition of a consecutive
sentence.” U.S.S.G. § 3D1.1(b). Statutes with such a requirement are excluded from
the grouping rules in U.S.S.G. §§ 3D1.2-3D1.5. See id. The grouping rules, if
applicable, require a sentencing court to use a failure to appear conviction as an upward
adjustment for obstruction of justice of the underlying conviction. U.S.S.G. § 3D1.2(c).
If the grouping rules are not applicable because a statute requires a consecutive sentence,
U.S.S.G. § 3D1.1(b) dictates that U.S.S.G. § 5G1.2(a) governs, which, in turn, requires
that when a statute mandates a consecutive sentence it “shall be determined and imposed
independently.” Because Commentary 3 to U.S.S.G. § 2J1.6 is inconsistent with two
of the Sentencing Guidelines, the Sentencing Guidelines must prevail over the
commentary. See Stinson v. United States, 508 U.S. 36, 43 (1993) (holding that a
Sentencing Guideline prevails over its commentary if the two are inconsistent) ; United
States v. Emigh, 933 F. Supp. 1055, 1060 (M.D. Fla. 1996) (holding that where the
commentary to a guideline is at odds with another provision of the guidelines, the
guideline prevails), aff’d mem., 136 F.3d 1330 (11th Cir. 1998).

     The consecutive sentence requirement of the failure to appear statute, 18 U.S.C.
§ 3146, brings this case under the consecutive sentence exception in U.S.S.G
§ 3D1.1(b). The grouping rules of U.S.S.G. §§ 3D1.2-3D1.5 are not applicable.


                                            -6-
Instead, U.S.S.G. § 5G1.2(a) governs and requires sentencing courts to determine and
impose consecutive sentences independently. Accordingly, we hold that the district
court in this case was correct in refusing to group the offenses and in calculating separate
and independent sentences for the underlying offense and the offense of failure to
appear, to be served consecutively.

      The cases upon which Crow Dog relies either support the government’s position
or are distinguishable. In United States v. Sarna, 28 F.3d 657 (7th Cir. 1994), the
defendant was charged with counterfeiting, absconded from the jurisdiction, failed to
appear for sentencing, offered to help a confederate abscond from pending charges, and
pursued aggravating activities as a fugitive. Id. at 662. The district court relied on
Sarna’s offer to help his confederate abscond in imposing a two-level upward adjustment
for obstruction of justice to his counterfeiting charge. Id. at 661. A month later, the
district court imposed a consecutive and independent sentence based on Sarna’s failure
to appear for sentencing. Id., citing 834 F. Supp. 292, 296 (N.D. Ind. 1993). The
Seventh Circuit affirmed. 28 F.3d at 662. Although the Sarna court suggested that “a
simple failure to appear must be treated as an obstruction of the underlying offense,” id.
at 661, Sarna was convicted for failure to appear for sentencing which, under
Commentary 3 to U.S.S.G. § 2J1.6, is exempt from the grouping rules and requires an
independently determined sentence.

      Finally, neither United States v. Lacey, 969 F.2d 926, 930 (10th Cir. 1992),
vacated and remanded for reconsideration on other grounds, 507 U.S. 901 (1993), nor
United States v. Lechuga, 975 F.2d 397, 401 (7th Cir. 1992), is persuasive because
neither court addressed the conflict between 18 U.S.C. § 3146 and Commentary 3 to
U.S.S.G. § 2J1.6 or the conflict between Commentary 3 to U.S.S.G. § 2J1.6 and
U.S.S.G. §§ 3D1.1(b) and 5G1.2(a).




                                            -7-
                                     Conclusion

      Accordingly, we hold that the district court did not err in imposing separate and
consecutive sentences on Crow Dog for arson and failure to appear pursuant to 18
U.S.C. § 3146(b)(2). The order of the district court is, therefore, affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -8-
