                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                               July 14, 2006
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       _____________________                     Clerk

                            No. 05-40409
                       _____________________

UNITED STATES OF AMERICA,

                       Plaintiff - Appellee,

                                v.

MANOLO GONZALEZ,

                      Defendant - Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                   Criminal Action No. L-95-042
_________________________________________________________________

Before JOLLY, PRADO, and OWEN, Circuit Judges.

PER CURIAM:*

                                 I

     On November 11, 1995, Manolo Gonzalez, then eighteen years

old, was arrested by the U.S. Border Patrol.   On November 22,

1995, Gonzalez was indicted for violating 21 U.S.C. §§ 841(a)(1),

(b)(1)(B), 846, 952(a), 960(b)(2), 963, and 18 U.S.C. § 2.

Gonzalez was released on bond and failed to appear for pre-trial

proceeding, and as a result was charged with failure to appear.


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                 1
A warrant was issued for his arrest.   Nearly ten years later,

Gonzalez voluntarily surrendered.

     The Government agreed to dismiss the underlying controlled

substance charges and prosecuted Gonzalez on the failure to

appear charge only, to which Gonzalez pled guilty.   The PSR

recommended a nine-level increase in Gonzalez’s base offense

level pursuant to United States Sentencing Guidelines (“U.S.S.G.”

or “Guidelines”) § 2J1.6(b)(2)(A), due to the fact that the

underlying offense was punishable by fifteen or more years of

imprisonment.   The original PSR calculated a total offense level

of 15 and found Gonzalez had a criminal history category of I.

Gonzalez later was given a two-level reduction for acceptance of

responsibility, which resulted in a Guidelines range of twelve to

eighteen months of imprisonment and two to three years of

supervised release.

     The district court upwardly departed from the Guidelines

range.   It noted that the other four co-defendants in the

underlying controlled substance offense received sentences

ranging from 52 to 78 months of imprisonment.   It found that if

Gonzalez had been convicted on the underlying offense, he would

have faced 46 to 57 months of imprisonment even with the downward

adjustments for safety valve and acceptance of responsibility.

The district court stated that it was willing to consider a

sentence below what Gonzales would have received for the

underlying offense, but not the short six-month sentence

                                 2
requested by defense counsel.   Defense counsel pointed out that

there was no evidence that Gonzalez would have been found guilty

of the charges.   The court replied:

     Okay. But then he should have stayed and found out. You
     know, because the bonus you got is that they just dropped
     the drug case and probably the witnesses, who knows, the
     agents may have all retired, been transferred and they may
     have had to throw away all the evidence.

     You know, ten years is a long time. So, you know, you got a
     tremendous windfall for running, and that’s a bad signal to
     send out to the world.

     Just run to Mexico and if you wait enough time you will get
     six months in a major drug deal. That’s hard for me to
     accept.

The district court stated that the circumstances would have been

different had the controlled substance charges not been dropped.

It imposed 36 months of imprisonment, three years of supervised

release, and 100 hours of community service, stating that this

was a “reasonable and fair disposition.”   The court noted that

this sentence was lower than any sentence Gonzalez could have

received had he stayed to face the underlying charges.

     In its written statement of reasons, the district court

cited U.S.S.G. § 5K2.21 as the basis for its departure from the

Guidelines range recommended by the PSR.   See § 3553(c)(2)

(requiring the court’s reasons for departure to be stated with

specificity in the written judgment.)   Pursuant to § 5K2.21, a

court may take into account the conduct involved in an underlying

charge that is dismissed as part of a plea agreement, when the

conduct was not used in determining the applicable Guidelines

                                 3
range.   The district court also noted as an additional reason for

departure, that “[t]he defendant absconded from a serious drug

offense in which co-defendants received no less than 52 months

custody.”    Finally, the court stated that the Guidelines

adequately addressed the § 3553(a) sentencing factors.

     Gonzalez timely appealed.

                                  II

     Gonzalez contends that his sentence violates Apprendi v. New

Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543

U.S. 220 (2005), because the district court increased his

punishment based on the underlying drug charge, the facts of

which were not found by a jury beyond a reasonable doubt and to

which he did not admit.    He also argues that the PSR already took

account of the underlying charge in the determination of the

applicable Guidelines range, and that the district court was

precluded from upwardly departing from the Guidelines range based

on the underlying charge.1   The Government asserts that, because

the district court imposed sentence under advisory Guidelines and

exercised its discretion to depart upwardly, there was no Booker

violation.    It also argues that the district court departed from

     1
       In summarizing his argument, Gonzalez identifies another
issue: whether the district court violated his rights to trial,
confrontation, and due process with respect to the underlying
drug charges. Gonzalez has waived this argument by not
supporting it with any authority or including it in the body of
his brief. See United States v. Thames, 214 F.3d 608, 611 n.3
(5th Cir. 2000) (holding that the appellant waived an argument
listed only in his summary of the argument).

                                  4
the Guidelines based on § 3553(a)(2).

     Gonzalez was sentenced shortly after Booker was issued.

Although he objected before the district court that he had not

been convicted of the controlled substance charge, he did not

complain that he was being punished for conduct not found beyond

a reasonable doubt or in violation of his right to a jury trial;

nor did he complain that the PSR had already taken into account

the underlying charge when determining the applicable Guidelines

range.   Because he did not adequately preserve his appellate

arguments before the district court, plain error review applies.

See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert.

denied, 126 S. Ct. 43 (2005).   To establish plain error, Gonzalez

must show: (1) error; (2) that is plain; (3) that affects his

substantial rights; and (4) that affects the fairness, integrity,

or public reputation of judicial proceedings.       Id.

     Gonzalez’s double-counting argument fails: the increase in

offense level pursuant to § 2J1.6 does not preclude the district

court’s upward departure under § 5K2.21, because the former

punishes defendants like Gonzalez from failing to appear at trial

while the latter allows upward departures based on the conduct

underlying the dismissed charge.       See U.S.S.G. § 2J1.6 cmt.

background (2005); United States v. Harper, 932 F.2d 1073, 1077

(5th Cir. 1991).   Yet, the district court’s citation to § 5K2.21

in its written statement of reasons is problematic because the

record does not support a finding that Gonzalez engaged in any

                                   5
specific conduct alleged in the dismissed charges.   Upward

departures based on § 5K2.21 require a finding that the defendant

engaged in the conduct underlying the dismissed charges.      See

United States v. Bailey, 169 Fed. App’x 815, 825 (5th Cir. 2006)

(holding that uncharged conduct described in PSR and which was

discussed by the court at sentencing was sufficient to support an

upward departure under § 5K2.21).    The PSR does not describe the

facts of the underlying offense, but merely states that Gonzalez

was arrested by border patrol agents “as part of a drug smuggling

organization.”   At sentencing, defense counsel stated that he had

spoken with the prosecutor for the underlying charges and was

told that Gonzalez “was a passenger in a vehicle that left the

house.”   The district court never found that Gonzalez had engaged

in the conduct that formed the basis of the underlying drug

charges, and the court did not sentence Gonzalez for the

underlying drug charges.   Rather, the district court used the

sentence Gonzalez potentially could have received had he been

convicted of those charges in determining the sentence to impose

for his failure to appear for trial on the underlying charges.

     However, the record does support the upward departure based

on aggravating facts, which warrant an upward departure under 18

U.S.C. § 3553 and U.S.S.G. § 5K2.0.   In United States v. Saldana,

we stated that a district court “does not abuse its discretion in

deciding to upwardly depart when its reasons for doing so (1)

advance the objectives set forth in 18 U.S.C. § 3553(a)(2)” and

                                 6
(2) “are justified by the facts of the case.”       427 F.3d 298, 310

(5th Cir. 2005) (citing 18 U.S.C. § 3742(j)(1)).       Further,

     Although Booker excised § 3553(b), the directive to consider
     the heartland of an offense and enumerate particular reasons
     for a departure from the sentencing range lives on in U.S.
     Sentencing Guideline § 5K2.0 and, implicitly, in § 3553(a)’s
     requirement that the court consider the guidelines and the
     appropriate sentencing range and § 3553(c)’s requirement
     that the court enumerate reasons for sentencing without the
     range.

Id. at 310 n.46.    Though the district court did not specifically

cite to § 3553(a)(2), the reasoning behind the court’s decision

involved consideration of approved factors under this section,

including the nature and circumstances of the offense, as well as

the need to provide just punishment and to promote adequate

deterrence to criminal conduct.2       This reasoning supports the

district court’s upward departure, which was well within the

statutory limit.

     Section 5K2.0 provides that a district court may depart from

the Guidelines where it determines that there exist “an

aggravating circumstance[] of a kind or to a degree not

adequately taken into consideration” by the Guidelines.       U.S.S.G.

§ 5K2.0(a)(1).     The district court calculated the applicable

Guidelines range for the failure-to-appear offense but determined

that this range was not reasonable under the circumstances.          The


     2
       While the written order identified § 5K2.21 as the basis
for the sentence, it also stated that “[t]he defendant absconded
from a serious drug offense in which co-defendants received no
less than 52 months custody.”

                                   7
court considered the fact that the co-defendants in Gonzalez’s

case who did not flee received significantly higher sentences,

that Gonzalez would have faced a sentence of at least 37 to 46

months has he been convicted of the drug charges, the amount of

time for which Gonzalez had absconded, the detrimental effect

that this may have had on the evidence against him, and the fact

that imposing a much lower sentence would result in a windfall to

Gonzalez for fleeing, which might encourage other criminals to

abscond in hopes of reducing any future punishment.   The district

court imposed a 36-month sentence, just below the sentence

Gonzalez could have received on the drug charges that were

dismissed.

     Gonzalez cannot demonstrate plain error because he did not

show that his substantial rights were affected.   Although the

upward departure is not justified under § 5K2.21, it is proper

under § 5K2.0l; nor is there anything in the record to indicate

the district court would have sentenced him differently.3

     3
       Recently, in United States v. Jones, we noted the tension
in our decisions with regard to the third prong of the plain
error test. 444 F.3d 430, 437-38 (5th Cir. 2006). In the
context of a district court misapplying the Guidelines in its
written statement of reasons, we have upheld the defendant’s
sentence because the trial judge could reinstate the same
sentence. Id. (citing United States v. Ravitch, 128 F.3d 865,
869 (5th Cir. 1997)). In the context of misapplication or
misinterpretation of an enhancement under the Guidelines, we
inquired whether, but for the district court’s misapplication of
the Guidelines, it was reasonably probable the defendant would
have received a lesser sentence. Id. (citing United States v.
Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (finding that
defendant satisfied the third prong of the plain error test)).

                                8
Because “the requirement that a district court write down its

reason for imposing a departure from the [G]uidelines range

remains binding [post-Booker],”       Saldana, 427 F.3d at 310 n.48,

we REMAND to the district court to amend the sentencing order

consistent with this opinion.   See United States v. Zuniga-

Peralta, 442 F.3d 345, 349 n.3 (5th Cir. 2005) (“[W]ere we to

conclude that the court did not sufficiently comply with §

3553(c) and was required to restate its reasons for departure in

the written judgment and commitment order, the remedy here would

be not a vacating of the sentence, but a remand for correction of

the written judgment.   The clarity and correctness of the court’s

reasoning supporting departure leave no room to require

resentencing.”).




In the instant case, the district court could impose the same
sentence on remand, and it is not reasonably probable that
Gonzalez would receive a lesser sentence on remand; therefore, as
in Jones, we need not delve into the question whether the two
“can be harmonized or which standard governs.” Id. at 438.

                                  9
