UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4334

VICTOR WHITE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(CR-95-86-R)

Submitted: January 31, 1997

Decided: March 10, 1997

Before WIDENER, HALL, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Rhonda L. Overstreet, LUMSDEN & OVERSTREET, Roanoke, Vir-
ginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,
Anthony P. Giorno, Assistant United States Attorney, Roanoke, Vir-
ginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Victor White was convicted for failure to appear for trial, in viola-
tion of 18 U.S.C.A. § 3146(a)(1) (West Supp. 1996), and sentenced
to thirty months imprisonment, followed by three years of supervised
release. He appeals his conviction and sentence.

I

In March 1995, White was charged with a drug offense. He was
subject to a sentence of not less than twenty years if convicted,
because of the quantity of drugs and because of a prior felony drug
conviction. White was released on bond to return to Pennsylvania
before trial. The trial was initially scheduled for June 27, but was con-
tinued to July 7. On that date, White called the clerk's office to say
he would be at least an hour late. The judge, jury, and court personnel
were present in the court at 9 A.M., the time scheduled for trial, and
remained until 10:45 A.M. The district judge then dismissed the jury
and adjourned.

Although White claims that he arrived later in the day and went to
the courtroom, he did not contact his local probation officer, the dis-
trict court, or the clerk's office. Around noon, a deputy marshall took
White's picture around to all the security personnel in the building;
none reported having seen White, and none of them later reported see-
ing him at any time that day.

White's Virginia probation officer next spoke with him on July
20th. White declared that he would turn himself in, but did not do so.
He was apprehended in Queens, New York on August 15. White rep-
resented himself as Anthony White, gave a false date of birth, and
denied knowledge of any charges in Virginia.

At the jury trial for the failure to appear offense, both White and
his sister testified that they had car trouble on the trip to Roanoke, and
that he arrived in the courtroom before lunch, called his lawyer, and
called his probation officer in Pennsylvania. He presented evidence

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from a deputy sheriff who testified that he spoke with White in the
courthouse, but that he did not know the exact date he saw White until
the day he testified. White was found guilty by a jury of the failure
to appear, but was subsequently acquitted of the underlying offense.

II

White argues that the evidence against him is insufficient to sustain
the conviction, as the government did not prove that he knowingly
and intentionally failed to appear for trial. On direct appeal, the ver-
dict must be sustained if there is substantial evidence, viewed most
favorably to the Government, to support it. Glasser v. United States,
315 U.S. 60, 80 (1942). The reviewing court must consider circum-
stantial as well as direct evidence, and allow the Government the ben-
efit of all reasonable inferences from the facts proved to the facts
sought to be established. United States v. Tresvant, 677 F.2d 1018,
1021 (4th Cir. 1982).

To support a conviction for failure to appear under 18 U.S.C.A.
§ 3146 (West Supp. 1996), the government must prove that defendant
was released on bond, that he was required to appear before a court
or judicial officer, and that he knowingly and willfully failed to
appear. United States v. Smith, 548 F.2d 545, 548 (5th Cir. 1977).
White does not dispute that he had been released, that he knew he was
required to appear, or the date and time of the trial. He does assert that
he did not knowingly and willfully fail to appear, but was prevented
from doing so because of car trouble.

We conclude that the evidence is sufficient to support the convic-
tion. Viewing the evidence in the light most favorable to the Govern-
ment, White did not appear for court at the scheduled time or by the
time he said he would appear. No court personnel reported seeing
White in the courthouse that day. He did not contact the district court,
the clerk's office, or his local probation officer upon his arrival. Even
if White did arrive at the courthouse some time that day, his mere
arrival in the building and subsequent departure did not satisfy his
obligation or excuse him from liability for his earlier absence. There-
fore, this claim lacks merit.

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III

White also challenges the district court's application of a nine-
point enhancement under USSG § 2J1.6(b)(2)(A) (1995) in comput-
ing his sentence. He argues that the guideline does not take into
account the possibility of acquittal for the underlying offense, as a
factor that should affect the sentence for failure to appear.

In determining a sentence on conviction for violation of § 3146,
USSG § 2J1.6 begins with a base offense level of 6 for all failures to
report except those following imposition of sentence. § 2J1.6(a)(2).
The base offense level is then enhanced depending on the maximum
sentence possible on the underlying offense. § 2J1.6(b)(2). Here,
White faced a possible twenty-year sentence on the underlying drug
offense; therefore, his base offense level of 6 was increased by 9
levels. § 2J1.6(b)(2)(A).

Although this circuit has no authority on the issue, several other
circuits have upheld the sentencing scheme imposed by this guideline
in a variety of factual settings. The Ninth Circuit has upheld its appli-
cation in a case where, as here, the defendant was acquitted of the
underlying offense. United States v. Nelson, 919 F.2d 1381 (9th Cir.
1990).

Other relevant cases include: United States v. Sanchez, 995 F.2d
468 (3d Cir. 1993); United States v. Kincaid, 959 F.2d 54, 56-57 (6th
Cir. 1992) (using maximum possible sentence to compute § 2J1.6
enhancement is not arbitrary and capricious though probable sentence
based on guidelines is much lower); United States v. Gardiner, 955
F.2d 1492, 1498-99 (11th Cir. 1992); United States v. Harper, 932
F.2d 1073 (5th Cir. 1991) (approving enhancement based on possible
sentence although Harper had already received a much lower sentence
before failure to appear); United States v. Williams, 932 F.2d 1515
(D.C. Cir. 1991) (upholding enhancement based on maximum sen-
tence of original underlying offense, although Williams was con-
victed only of misdemeanor); United States v. Agbai, 930 F.2d 1447,
1450 (10th Cir. 1991) (approving enhancement based on five-year
maximum although Agbai had received two concurrent ten-month
sentences).

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The guideline language clearly refers to potential rather than actual
punishment. Because there is a logical relationship between the length
of a possible sentence on a charged offense and the seriousness of
evading a court appearance for the offense, the provision does not
violate the district court's mandate, under 18 U.S.C.A. § 3553 (West
1985 & Supp. 1996), to consider the nature and circumstances of the
offense.

Thus, we hold that the provisions of § 2J1.6 were properly applied
to White in computing his thirty-three month sentence for violating
§ 3146. To the extent that White argues that the district court should
have departed below the minimum on the basis of his acquittal for the
underlying offense, the district court's decision not to depart is not
reviewable, United States v. Bayerle, 898 F.2d 28, 30 (4th Cir. 1990),
unless it is based on a mistaken perception of lack of authority.
United States v. Hall, 977 F.2d 861, 866 (4th Cir. 1992). The district
court here considered and rejected the possibility of departure; there-
fore, the issue is not open for our review.

We affirm White's conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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