                                                   [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                         FILED
                 FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                   ________________________ ELEVENTH CIRCUIT
                                                   DECEMBER 3, 2007
                         No. 06-13691              THOMAS K. KAHN
                     Non-Argument Calendar             CLERK
                   ________________________

                D. C. Docket No. 02-20370-CR-PCH

UNITED STATES OF AMERICA,


                                          Plaintiff-Appellee,

                             versus

FELIX RAMON ALCANTARA,
a.k.a. Felo,

                                          Defendant-Appellant.

                   ________________________

                         No. 06-13692
                     Non-Argument Calendar
                   ________________________

                D. C. Docket No. 03-20825-CR-PCH

UNITED STATES OF AMERICA,


                                         Plaintiff-Appellee,

                             versus
FELIX RAMON ALCANTARA,

                                                 Defendant-Appellant.
                           _________________________

                    Appeals from the United States District Court
                        for the Southern District of Florida
                          _________________________

                                 (December 3, 2007)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Felix Ramon Alcantara appeals his consecutive 38-month sentence for

conspiracy to distribute MDMA (“ecstasy”) and 18-month sentence for failure to

appear. He argues, for the first time on appeal, that the district court erred in

imposing a cumulative term of imprisonment that exceeds the applicable advisory

Guidelines range. After careful review of the record and the parties’ briefs, we

discern no error and therefore, affirm.

                                  BACKGROUND

      In April 2002, a federal grand jury indicted Alcantara for one count of

conspiracy to possess with intent to distribute ecstasy, in violation of 21 U.S.C. §

846, one count of possession with intent to distribute ecstasy, in violation of 21

U.S.C. § 841(a)(1) and (a)(2), and one count of attempt to possess with intent to



                                           2
distribute ecstasy, in violation of 21 U.S.C. § 846. While released on bond in June

2002, Alcantara failed to appear for trial, and remained a fugitive until 2006, when

he was apprehended. A grand jury subsequently indicted Alcantara for failure to

appear at trial, in violation of 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(i).

       Alcantara entered into a plea agreement, in which he agreed to plead guilty

to the drug conspiracy count and the failure to appear charge; in exchange, the

government would move to dismiss the remaining drug counts. Alcantara agreed

to waive his right to an appeal unless (1) the government appealed, (2) he was

sentenced above the statutory maximum, or (3) his sentence was based on an

upward departure from the Guidelines range determined by the district court. He

subsequently pleaded guilty, in accordance with his agreement.

       To determine Alcantara’s advisory Guidelines range, the district court

grouped the drug conspiracy count and the failure to appear charge, pursuant to

U.S.S.G. § 3D1.2(c),1 which provides that “[a]ll counts involving substantially the

same harm shall be grouped together into a single Group. . . . [w]hen one of the

counts embodies conduct that is treated as a specific offense characteristic in, or




       1
         Because Alcantara was sentenced on June 8, 2006, all citations to the sentencing
commission guidelines, policy statements, commentary, and amendments thereto, are to United
States Sentencing Commission, Guidelines Manual (2005), which was in effect on that date.

                                              3
other adjustment to, the guideline applicable to another of the counts.” 2 The court

then used the drug conspiracy count to determine the base offense level and treated

the failure to appear charge as a specific offense characteristic, adding two levels

per the obstruction of justice adjustment under U.S.S.G. § 3C1.1. After calculating

an advisory Guidelines range of 37–46 months, the district court imposed a within-

Guidelines sentence of 38 months for the drug count and a consecutive 18-month

sentence for the failure to appear count, pursuant to 18 U.S.C. § 3146(b)(2) and

application note 3 to U.S.S.G. § 2J1.6.3 The consecutive sentences resulted in a

total term of imprisonment of 56 months.

       Alcantara concedes that the district court correctly calculated the advisory

Guidelines range and properly imposed consecutive sentences. He argues,

however, that the district court erred in determining the length of imprisonment for

the failure to appear offense because that sentence, when added to the sentence for



       2
          Although Alcantara was charged with drug conspiracy and failure to appear in separate
indictments, he ultimately pleaded guilty to both charges at the same plea hearing and was
sentenced for both charges at the same sentencing hearing. The district court issued two separate
judgments (See R1-92 for D.C. Case No. 02-20370; R1-26 for D.C. Case No. 03-20825), but
treated both charges as “counts” for purposes of sentencing. Because the record contains two
identical copies of the plea and sentencing hearings, any citations herein to those documents are
referred to as R1, R2, and R3, etc., for ease of reference.
       3
         “[C]ommentary in the Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.
Ct. 1913, 1915, 123 L. Ed. 2d 598 (1993); see also United States v. Gallo, 195 F.3d 1278, 1281
(11th Cir. 1999).

                                                  4
the drug conspiracy count, resulted in a total term of imprisonment that exceeded

the advisory Guidelines range. Alcantara contests that the advisory Guidelines

range is the “total punishment” referred to in U.S.S.G. § 2J1.6, cmt. n. 3, and that

the district court impermissibly double counted his failure to appear by imposing a

consecutive sentence for that charge, which resulted in a cumulative sentence

outside that range.4

                                STANDARD OF REVIEW

       Generally, we review the district court’s application and interpretation of the

sentencing guidelines de novo. United States v. Walker, 490 F.3d 1282, 1299 (11th



       4
          The district court did not sentence Alcantara above the statutory maximum for either the
drug conspiracy charge or the failure to appear charge. Thus, Alcantara appeals on the basis that
the district court applied an upward departure by imposing a cumulative sentence that exceeded
the applicable advisory Guidelines range. We have found in an analogous context, however, that
the district court’s decision to impose a sentence above the applicable advisory Guidelines range
is not a guidelines departure, but an exercise of its discretion in sentencing, where the district
court “did not cite to a specific guidelines departure provision, and in the words of the district
court, the guidelines did ‘not adequately take into account the severity of the damage done by
[the defendant], and therefore, I find that they should not be applied.’” United States v. Eldick,
443 F.3d 783, 788 n.2 (11th Cir.) (per curiam), cert. denied, — U.S. — , 127 S. Ct. 251, 166 L.
Ed. 2d 196 (2006).
        Here, the district court sentenced Alcantara by stating, “It is the judgment of the Court
that Felix Ramon Alcantara be imprisoned for a term of 56 months. This term consists of 38
months as to Case No. 02-20370 [drug conspiracy] and a term of 18 months as to Case No. 03-
20825 [failure to appear] to be served consecutively.” R.3 at 8. Because the district court did
not expressly state that it was making an “upward departure” from the sentencing range, and did
not cite any departure provision, this appeal is governed by Alcantara’s waiver agreement.
Rather than dismiss the appeal based on the waiver, we will address the merits of Alcantara’s
claim because the government does not invoke the appeal waiver (see Gov. Brief at 2, note 3),
the parties have already expended the resources to brief the case on the merits, and application of
the waiver is not outcome-determinative. See United States v. Valnor, 451 F.3d 744, 745 n.1
(11th Cir. 2006).

                                                 5
Cir. 2007). Although the sentencing guidelines are now advisory after United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), “district

courts are still required to correctly calculate the appropriate advisory guidelines

range.” United States v. Livesay, 484 F.3d 1324, 1329 (11th Cir.) (per curiam),

petition for cert. filed, 76 U.S.L.W. 3094 (U.S. Aug. 31, 2007) (No. 07-294).

      Normally, we review the ultimate sentence for reasonableness, in light of the

sentencing factors set forth in 18 U.S.C. § 3553(a), United States v. Campbell, 491

F.3d 1306, 1313 (11th Cir. 2007). Because Alcantara did not raise the specific

claim that his cumulative sentence exceeds the advisory Guidelines range before

the district court, however, we review it for plain error only. See United States v.

Maurice, 69 F.3d 1553, 1557 (11th Cir. 1995) (per curiam).

      Under the plain error standard of review, a defendant “must show that: (1)

an error occurred; (2) the error was plain; (3) it affected his substantial rights; and

(4) it seriously affected the fairness of the judicial proceedings.” United States v.

Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). An error is not “plain” unless it is

“clear under current law,” and where neither the U.S. Supreme Court nor this Court

has resolved an issue, that issue cannot be the subject of plain error. United States

v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (per curiam) (internal quotation

marks omitted) (quoting United States v. Humphrey, 164 F.3d 585, 587 (11th Cir.



                                            6
1999). To determine whether the error affected substantial rights, and thus “the

outcome of the district court proceedings,” we look to the reasonable probability of

a different result, “which means a probability sufficient to undermine confidence in

the outcome.” United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005)

(internal quotation marks omitted).

                                    DISCUSSION

      Under the sentencing guidelines, the district court determines the base

offense level for multiple offenses by grouping together counts that “involve

substantially the same harm.” U.S.S.G. § 3D1.2. This encompasses situations in

which “one of the counts embodies conduct that is treated as a specific offense

characteristic . . . to the guideline applicable to another of the counts.” U.S.S.G.

§ 3D1.2(c).

      Application note 3 to § 2J1.6 of the sentencing guidelines, which governs

failure to appear, states that where there are convictions for failure to appear and an

underlying offense, the offenses are to be grouped, pursuant to U.S.S.G.

§ 3D1.2(c), and the failure to appear should be treated as an upward adjustment for

obstruction of justice under § 3C1.1. U.S.S.G. § 2J1.6, cmt. n.3. The commentary

notes that “18 U.S.C. § 3146(b)(2) does not require a sentence of imprisonment on

a failure to appear count, although if a sentence of imprisonment on the failure to



                                           7
appear count is imposed, the statute requires that the sentence be imposed to run

consecutively to any other sentence of imprisonment.” Id. The commentary

further states that “[t]he combined sentence will then be constructed to provide a

‘total punishment’ that satisfies the requirements both of § 5G1.2 (Sentencing on

Multiple Counts of Conviction) and 18 U.S.C. § 3146(b)(2).” Id.

      Our analysis of the grouping rules in U.S.S.G. § 3C1.2 and application note

3 to U.S.S.G. § 2J1.6 allows us to conclude that Congress intended that failure to

appear for trial be treated as an offense characteristic of the underlying offense,

with an upward adjustment for obstruction of justice. While the district court may

still impose a separate sentence for the failure to appear count, the cumulative term

of imprisonment for both offenses should fall within the advisory Guidelines range

that was calculated after applying the obstruction of justice adjustment. This

advisory Guidelines range therefore is the “total punishment” Congress refers to in

U.S.S.G. § 2J1.6 cmt., n.3. After Booker rendered the sentencing Guidelines

advisory, however, the Guidelines range is no longer the mandatory “total

punishment” that a district court is allowed to impose.

      As Alcantara concedes, the district court properly grouped the drug

conspiracy count and the failure to appear charge, as per U.S.S.G. § 3D1.2(c), and

calculated the appropriate guidelines range. Alcantara also agrees that the district



                                           8
court did not err in imposing separate, consecutive sentences for each offense. He

argues, however, that the “total punishment” for both offenses is the advisory

Guidelines range and that by imposing a cumulative sentence outside that range,

the district court engaged in impermissible double counting because the failure to

appear charge was fully accounted for by the obstruction of justice adjustment. We

reject this argument.

      Before Booker, we held that a district court engages in “impermissible

double counting” when “one part of the guidelines is applied to increase a

defendant’s sentence to reflect the kind of harm that has already been fully

accounted for by another part of the guidelines.” United States v. Dudley, 102 F.3d

1184, 1186 (11th Cir. 1997) (per curiam) (emphasis added). Neither before nor

after Booker have we addressed whether a district court engages in double counting

by imposing a separate sentence for failure to appear, where the failure to appear

has already been used to apply an obstruction of justice enhancement. 18 U.S.C. §

3146(b)(2) specifically requires that a sentence for failure to appear, if imposed,

run consecutively to the other sentence, and application note 3 to U.S.S.G. § 2J1.6

confirms this. Thus, imposing a separate sentence for failure to appear, alone, does

not constitute impermissible double counting, so long as the ultimate sentence is

reasonable in light of the sentencing factors of 18 U.S.C. § 3553(a). Therefore, the



                                           9
pithiest issue in Alcantara’s argument is whether the obstruction of justice

adjustment, which yielded a particular guidelines range, fully accounts for his

failure to appear so that a cumulative sentence outside the advisory guidelines

range is unreasonable.

      The district court factored Alcantara’s failure to appear into the guidelines

range by imposing an upward adjustment for obstruction of justice under U.S.S.G.

§ 3C1.1. Because Booker rendered the guidelines advisory, however, a district

court may exercise its discretion and impose a sentence outside the applicable

guidelines range, so long as the court considers the parties’ objections and the

resulting sentence is reasonable in light of the sentencing factors of 18 U.S.C. §

3553(a). United States v. Dorman, 488 F.3d 936, 944 (11th Cir.), cert. denied, No.

07-6411, 2007 WL 2692218 (Oct. 9, 2007).

      Here, the district court considered both Alcantara and the government’s

objections, but also considered that “[Alcantara] was out for about three and a half

years.” R. 3 at 5. The district court found that it should “consider both obstruction

of justice and something for . . . [Alcantara’s] violation of law on that [failure to

appear] case.” Id. Determining that the “decision to flee . . . is a very serious

offense and needs to be accounted for,” the court then imposed a consecutive

sentence for the failure to appear charge, which it had the authority to do, that



                                           10
reflected the seriousness of the offense. R. 3 at 8. By imposing a failure-to-appear

sentence that resulted in a cumulative sentence outside the advisory guidelines

range, the district court believed, in light of the § 3553(a) factors, that the advisory

guidelines range did not adequately reflect the “total punishment” for both

offenses.5 From our review of the record, the district court sufficiently justified its

decision to impose a cumulative sentence outside the advisory Guidelines range.

Even if we were to find that the district court erred in imposing an additional 10

months to Alcantara’s sentence, this would not constitute plain error as this issue

was not “clear under current law.” See Aguillard, 217 F.3d at 1321 (internal

quotation marks omitted).

                                        CONCLUSION

       The district court did not err in issuing a consecutive sentence for

Alcantara’s failure to appear that resulted in a cumulative sentence outside the

advisory Guidelines range, where the failure to appear charge already had been

grouped with the drug charge and factored into the guideline sentencing range in

the form of an obstruction of justice adjustment. The district court imposed a

       5
         18 U.S.C. § 3553(a)(2) provides, in relevant part, that “[t]he court, in determining the
particular sentence to be imposed, shall consider . . . the need for the sentence imposed—
        (A) to reflect the seriousness of the offense, to promote respect for the law, and to
        provide just punishment for the offense;
        (B) to afford adequate deterrence to criminal conduct;
        (C) to protect the public from further crimes of the defendant . . . .”


                                                11
sentence that reflected the very serious nature of Alcantara’s failure to appear and

the dangers created by his nearly four-year fugitive status and sufficiently justified

its exercise of discretion. Accordingly, we affirm Alcantara’s sentence.

      AFFIRMED.




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