                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 07-50187
                Plaintiff-Appellee,
               v.                                 D.C. No.
                                                CR-04-01359-DT
DEANDRE LAMONT LOCKLIN,
                                                   OPINION
             Defendant-Appellant.
                                          
        Appeal from the United States District Court
            for the Central District of California
       Dickran M. Tevrizian, District Judge, Presiding

                   Argued and Submitted
              May 8, 2008—Pasadena, California

                       Filed June 25, 2008

    Before: William A. Fletcher and Ronald M. Gould,
Circuit Judges, and Louis H. Pollak* Senior District Judge.

               Opinion by Judge Louis H. Pollak




   *The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.

                                7459
                  UNITED STATES v. LOCKLIN               7461


                         COUNSEL

Davina T. Chen, Federal Public Defender’s Office, Los Ange-
les, California, for the appellant.

Anthony R. Montero and Michael J. RaphaelOffice of the
United States Attorney, Los Angeles, California, for the
appellee.


                         OPINION

POLLAK, District Judge:

  Deandre Lamont Locklin appeals (a) his conviction for fail-
ure to appear, in violation of 18 U.S.C. § 3146(a)(1), and (b)
7462                   UNITED STATES v. LOCKLIN
his sentence. We have jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a). We affirm the conviction, vacate the
sentence, and remand for resentencing.

                                   I.

   In September 2004, Locklin was indicted for being a felon
in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). He was released from custody on bond and, as a
condition of release, was required to appear at all court pro-
ceedings held in connection with the indictment. Locklin
attended court on the morning of June 21, 2005, for the begin-
ning of jury selection for his trial, but fled at the lunch break.
He was apprehended months later and, in a superseding
indictment, charged, as before, with being a felon in posses-
sion of a firearm, in violation of § 922(g)(1) (count one), and,
additionally, with failure to appear, in violation of 18 U.S.C.
§ 3146(a)(1) (count two). Testifying on his own behalf at trial,
Locklin admitted that he failed to appear in court on June 21,
2005.1 The jury acquitted Locklin of being a felon in posses-
sion of a firearm, but convicted him of failure to appear.
Locklin was sentenced to a prison term of 30 months. He
timely appealed his conviction and sentence.

                                    II.

   Challenging his conviction, Locklin contends (a) that the
essential elements of failure to appear, in violation of
§ 3146(a)(1), include the facts necessary to determine the stat-
utory penalty for the offense that the defendant was “released
in connection with” before failing to appear in court, 18
U.S.C. § 3146(b)(1)(A) (i.e., the penalty for the underlying
offense); and (b) that the government did not adduce evidence
  1
   Additionally, in her summation, Locklin’s counsel urged the jury to
“[g]ive Mr. Locklin the respect he deserves. Find him guilty of Count
Two, the failure to appear, and not guilty as to Count One, felon in posses-
sion.”
                   UNITED STATES v. LOCKLIN                 7463
at trial sufficient to determine the penalty for Locklin’s under-
lying offense. Locklin did not raise this claim before the Dis-
trict Court, and we thus review for plain error. See United
States v. Dowd, 417 F.3d 1080, 1085 (9th Cir. 2005).

  Section 3146 provides as follows:

    (a) Offense.—Whoever, having been released under
    this chapter knowingly—

         (1) fails to appear before a court as required
         by the conditions of release; or

         (2) fails to surrender for service of sentence
         pursuant to a court order;

    shall be punished as provided in subsection (b) of
    this section.

    (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 sen-
         tence, surrender for service of sentence, or
         appeal or certiorari after conviction for—

            (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 imprison-
            ment for a term of five years or more, a
            fine under this title or imprisonment for
            not more than five years, or both;
7464               UNITED STATES v. LOCKLIN
           (iii) any other felony, a fine under this
           title or imprisonment for not more than
           two years, or both; or

           (iv) a misdemeanor, a fine under this title
           or imprisonment for not more than one
           year, or both; and

         (B) if the person was released for appear-
         ance as a material witness, a fine under this
         chapter or imprisonment for not more than
         one year, or both.

18 U.S.C. § 3146(a)-(b).

   As Locklin concedes, the government proved the elements
of failure to appear as we described them in Weaver v. United
States:

    To establish a violation of 18 U.S.C. § 3146, the
    government ordinarily must prove that the defendant
    (1) was released pursuant to [Title 18, Chapter 207
    of the U.S. Code], (2) was required to appear in
    court, (3) knew that he was required to appear, (4)
    failed to appear as required, and (5) was willful in
    his failure to appear.

37 F.3d 1411, 1412-13 (9th Cir. 1994) (citing United States v.
McGill, 604 F.2d 1252, 1254 (9th Cir. 1979)); see also United
States v. Fisher, 137 F.3d 1158, 1162 (9th Cir. 1998) (reciting
the elements identified in Weaver). Locklin argues, however,
that Apprendi v. New Jersey, 530 U.S. 466 (2000), decided six
years after Weaver, rendered incomplete the Weaver list of the
elements the government must prove to a jury in order to
secure a conviction under § 3146. According to Locklin, the
government must now prove to a jury (in the absence of an
adequate stipulation by a defendant) the underlying offense —
i.e., the offense “in connection with” which the defendant was
                    UNITED STATES v. LOCKLIN                  7465
held in federal custody before being released on the condition
that he attend designated court appearances. Under Locklin’s
interpretation of § 3416, the underlying offense is an essential
element of failure to appear because, absent this finding, there
is no determinable range of penalties authorized for the con-
duct that the statute proscribes. See In re Winship, 397 U.S.
358, 364 (1970) (“[T]he Due Process Clause protects the
accused against conviction except upon proof beyond a rea-
sonable doubt of every fact necessary to constitute the crime
with which he is charged.”).

   Locklin’s contention is rooted in Apprendi’s instruction
that the government has the burden of proving to a jury any
“fact that increases the penalty for a crime beyond the pre-
scribed statutory maximum . . . .” 530 U.S. at 490. Under
§ 3416(b)(1)(A), a severe penalty — incarceration of up to ten
years — may be imposed when the charged underlying
offense is one that carries with it a term of incarceration of fif-
teen years to life, 18 U.S.C. § 3146(b)(1)(A)(i); failure to
appear in connection with a charged offense punishable by
five or more years of incarceration is punishable by imprison-
ment for up to five years, 18 U.S.C. § 3146(b)(1)(A)(ii); when
the charged offense is a lesser felony, failure to appear is pun-
ishable by imprisonment for up to two years, 18 U.S.C.
§ 3146(b)(1)(A)(iii); and when the charged offense is a mis-
demeanor, failure to appear may generate imprisonment for
not more than a year, 18 U.S.C. § 3146(b)(1)(A)(iv).

   [1] Contrary to the interpretation of § 3146(b) urged by
Locklin, this penalty scheme authorizes a range of punish-
ments for failure to appear that are valid regardless of the
underlying offense. Under § 3146(b)(1)(A), any sentence that
is permitted when the charged underlying offense is a misde-
meanor is likewise permitted if the underlying offense carries
more serious penalties. Hence, regardless of whether the gov-
ernment has proved the underlying offense to the jury, the dis-
trict court may, without running afoul of any of the provisions
of § 3146(b)(1)(A), impose a term of imprisonment that does
7466               UNITED STATES v. LOCKLIN
not exceed one year. Therefore, the underlying offense need
not be proved to the jury to authorize some valid punishment
under § 3146, and thus is not a “fact necessary to constitute
the crime” of failure to appear. Winship, 397 U.S. at 364.
Accordingly, Weaver continues to be an accurate statement of
the essential elements of failure to appear, in violation of
§ 3146.

  We therefore affirm Locklin’s conviction.

                              III.

  Locklin also contends that his sentence violated Apprendi.
Because Locklin raised this claim before the District Court,
we review for harmless error. United States v. Zepeda-
Martinez, 470 F.3d 909, 913-14 (9th Cir. 2006).

   [2] Under the § 3146 penalty framework, described above,
a violation of § 3146(a) may be punished by a term of impris-
onment exceeding one year only if the underlying offense is
a felony. “Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
Accordingly, if the government seeks a sentence for failure to
appear that exceeds one year’s imprisonment, the underlying
offense “must be submitted to a jury, and proved beyond a
reasonable doubt.” See id.

   [3] Locklin was sentenced to 30 months’ imprisonment for
his failure to appear in court. However, neither the penalty for
Locklin’s charged underlying offense nor any findings neces-
sary to determine the underlying offense were submitted to
the jury. Thus, the sentence contravened Apprendi.

   [4] This error was not harmless, as there was no evidence
adduced at trial that would have supported a jury finding as
to the charged underlying offense. Cf. United States v. Hollis,
                        UNITED STATES v. LOCKLIN                        7467
490 F.3d 1149, 1157 (9th Cir. 2007) (holding that Apprendi
error was harmless where there was “overwhelming and
uncontradicted evidence at trial” of the identity of the drug
that the defendant distributed); Zepeda-Martinez, 470 F.3d at
913-14 (holding, where the defendant pled guilty to the
offense, that Apprendi error was harmless in light of the evi-
dence in the “whole record” that the government “would have
introduced at trial had the issue been properly presented”
(internal quotation marks omitted)). Doubtless one could
grasp, from the terms of the superseding indictment, the facts
that the government proposed to prove with respect to the
underlying offense.2 However, as the District Court correctly
  2
   In addition to charging Locklin, in count one, with being a felon in
possession of a firearm, the superseding indictment charges, in count two,
that:
      On or about June 21, 2005, . . . defendant, Deandre Lamont
      Locklin, having been indicted in United States of America v.
      Deandre Lamont Locklin, case number CR 04-1359-DT, and
      charged with having knowingly possessed a firearm and ammuni-
      tion, in and affecting interstate commerce, and such possession
      having occurred after defendant had been convicted of a felony
      which was punishable by terms of imprisonment exceeding one
      year, in violation of Title 18, United States Code, Section
      922(g)(1), and having been arrested and released from custody on
      bond, pursuant to Title 18, United States Code, Section 3142, and
      having been ordered to appear for trial before the Honorable
      Dickran M. Tevrizian, Jr., United States District Judge, know-
      ingly and willfully did fail to appear as required before the afore-
      mentioned court.
In the jury charge, after summarizing count one of the superseding indict-
ment, the District Court clarified the scope of count two’s charged under-
lying offense by stating that:
      Count Two of the First Superseding Indictment charges that on
      or about June 21, 2005, . . . Deandre Lamont Locklin, having
      been indicted in United States of America versus Deandre
      Lamont Locklin, case number CR, criminal 04-1359-DT, and
      charged in Count One, that I just read to you . . . and having been
      ordered to appear for trial before me, . . . knowingly and willfully
      did fail to appear as required.
7468               UNITED STATES v. LOCKLIN
cautioned the jury in the case at bar: “The First Superseding
Indictment is not evidence.” Rather, as the District Court cor-
rectly advised the jury prior to issuing that caveat: “The evi-
dence from which you are to decide what the facts are
consists of: (1) the sworn testimony of any witness; (2) the
exhibits which have been received into evidence; and (3) any
facts to which all lawyers have stipulated.” As to these cate-
gories of material, the government proffered no testimony,
and submitted no exhibits, establishing that being a felon in
possession of a firearm, in violation of § 922(g)(1), was the
underlying offense of the failure-to-appear count. The parties
did stipulate that, prior to failing to appear in court, Locklin
“was out of custody on bail, having been charged in United
States of America v. Deandre Lamont Locklin, Case No. 04-
1359-DT.” Gov’t Excerpts of Record at 8. However, no addi-
tional evidence was submitted that would allow a lay fact-
finder to infer, from this stipulation, that, in June 2005, the
offense charged in case number 04-1359-DT was possession
of a firearm by a felon. Thus, there was no evidence from
which a juror could make the findings necessary to authorize
the District Court to sentence Locklin for a term of imprison-
ment of more than one year. Accordingly, Locklin’s sentence
of 30 months’ imprisonment, in violation of Apprendi, was
not harmless error.

   [5] We therefore vacate Locklin’s sentence and remand for
resentencing consistent with the facts proved to the jury
beyond a reasonable doubt.

 Conviction AFFIRMED;                sentence     VACATED;
REMANDED for resentencing.
