                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-4503
SAMUEL C. TIGNEY,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
    for the Northern District of West Virginia, at Martinsburg.
              Frederick P. Stamp, Jr., District Judge.
                            (CR-02-40)

                      Argued: February 24, 2004

                        Decided: May 5, 2004

        Before MOTZ and TRAXLER, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Traxler and Senior Judge Hamilton joined.


                             COUNSEL

ARGUED: Barry Philip Beck, POWER, BECK & MATZUREFF,
Martinsburg, West Virginia, for Appellant. David J. Perri, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee. ON
BRIEF: Thomas E. Johnston, United States Attorney, Wheeling,
West Virginia, for Appellee.
2                      UNITED STATES v. TIGNEY
                              OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

   Samuel C. Tigney appeals the district court’s calculation of his
criminal history category. He contends that the court erred in includ-
ing his prior sentences for failure to appear when assessing his crimi-
nal history. The offense of failure to appear is "similar to" the offense
of contempt of court, and therefore the United States Sentencing
Guidelines instruct that a court should exclude a sentence for "failure
to appear" from a defendant’s criminal history. Accordingly, we
vacate Tigney’s sentence and remand for resentencing.

                                   I.

   Following Tigney’s conviction for making a false statement in con-
nection with the attempted acquisition of a firearm, in violation of 18
U.S.C. § 922(a)(6) (2000), the Probation Office prepared a presen-
tence report in which it assigned him four criminal history points.
Two of these points were attributable to prior misdemeanor convic-
tions (one point for each conviction) for failing to appear in West Vir-
ginia state court.1 On each occasion, after a police officer issued a
citation ordering Tigney’s appearance in court on a designated date,
Tigney failed to appear as required, ultimately pleaded guilty to the
offense, and was sentenced to pay a fine.

   Tigney objected to the presentence report, contending that the Pro-
bation Office improperly included the sentences attributable to these
two failure-to-appear convictions in calculating his criminal history.
He argued that these convictions constituted misdemeanors "similar
to" contempt of court and so the Probation Office should have
excluded them from his criminal history calculation pursuant to
    1
   Although Tigney was actually convicted of violating a local ordi-
nance, Martinsburg, W. Va., Ordinances § 501.07 (1995), failure to
appear is also a criminal offense under state law. See W. Va. Code § 62-
1-5a (2000). Accordingly, we must treat Tigney’s sentences for failure
to appear as if he had been convicted under the state statute, W. Va.
Code § 62-1-5a. See U.S. Sentencing Guidelines Manual § 4A1.2, cmt.
n.12 (2003).
                       UNITED STATES v. TIGNEY                        3
§ 4A1.2(c)(1) of the U.S. Sentencing Guidelines. The district court
disagreed. Relying on West Virginia law to define the offenses, the
court determined that although "failure to appear looks like a lesser
offense [than contempt of court], . . . it is not necessarily a lesser
included." Concluding that the elements of the two offenses were
therefore "dissimilar," the court overruled Tigney’s objection and
adopted the calculation in the presentence report.

   With four criminal history points, Tigney was classified as a Cate-
gory III offender, and with an offense level of fourteen, the applicable
guideline range was twenty-one to twenty-seven months imprison-
ment. U.S.S.G. ch. 5, pt. A. The district court imposed a mid-range
sentence of twenty-four months. If Tigney had not been assigned two
criminal history points for his failure-to-appear sentences, he would
have been a Category II offender, and the applicable guideline range
would have been eighteen to twenty-four months imprisonment. Id.

                                  II.

   "The Guidelines create a general presumption that all prior sen-
tences within the applicable time period will be included in calculat-
ing a defendant’s criminal history category." United States v. Harris,
128 F.3d 850, 853 (4th Cir. 1997). Thus, sentences for all felony
offenses are counted. U.S.S.G. § 4A1.2(c). Similarly, sentences for
misdemeanors are included unless they fall within the limited excep-
tion delineated in § 4A1.2(c). As relevant here, § 4A1.2(c)(1)
excludes from calculation sentences received for fifteen listed
offenses "and offenses similar to them, by whatever name they are
known," if the sentence imposed was less than one year probation or
thirty days imprisonment, and the prior offense was not similar to the
instant offense. U.S.S.G. § 4A1.2(c)(1) (emphasis added). One of the
enumerated excluded offenses is "contempt of court."

   In this case, it is undisputed that failure to appear is not a listed
offense; that Tigney’s only sentence for the failure-to-appear offenses
was imposition of a fine; and that those offenses were unrelated to the
instant offense. Thus, the sole question before us is a narrow one:
whether failure to appear under West Virginia law is "similar to" one
of the enumerated offenses under § 4A1.2(c). In particular, Tigney
argues that failure to appear is "similar to" contempt of court.
4                           UNITED STATES v. TIGNEY
   To ascertain whether a prior offense is "similar to" one of the listed
offenses, we apply an "elements test;" we compare "the elements of
the prior offense to the elements of the relevant offense listed in Sec-
tion 4A1.2(c)" to determine whether they are "nearly corresponding"
or "resembling in many respects." Harris, 128 F.3d at 854-55 (inter-
nal quotation marks and citation omitted). Although state law defines
the predicate offenses in this case, we adopt the approach uniformly
followed by other circuits and look to federal law to determine the
elements of the listed offense, as well as for the ultimate determina-
tion of whether the two offenses are "similar." See United States v.
Martinez-Santos, 184 F.3d 196, 198 (2d Cir. 1999) (noting that "other
circuits have uniformly found the classification of offenses as ‘simi-
lar’ to the offenses listed in § 4A1.2(c) to be a matter of federal law,
even though the prior offenses are defined and the sentences imposed
under state law"); see also United States v. Elmore, 108 F.3d 23, 25
(3d Cir. 1997) ("We determine the meaning of ‘disorderly conduct’
[a listed offense] pursuant to federal, not state, law.").

   "The phrase ‘contempt of court’ is generic, embracing within its
legal signification a variety of different acts." 17 C.J.S. Contempt § 3
(1999). It includes "[a]ny act which is calculated to embarrass, hinder,
or obstruct [a] court in administration of justice, or which is calcu-
lated to lessen its authority or dignity." Black’s Law Dictionary 319
(6th ed. 1990). Contempt of court is broad enough to encompass acts
occurring before a judge, as well as those outside the court’s pres-
ence. Id. The federal contempt of court statute recognizes, and pun-
ishes, both manifestations of contempt. See 18 U.S.C.A. § 401 (West
2003). As relevant here, the federal criminal contempt statute prohib-
its, inter alia, "[d]isobedience or resistance to [the court’s] lawful
writ, process, order, rule, decree, or command." Id.2 Thus, as the Gov-
    2
     In its entirety, § 401 provides that:
        A court of the United States shall have power to punish by fine
        or imprisonment, or both, at its discretion, such contempt of its
        authority, and none other, as — (1) Misbehavior of any person
        in its presence or so near thereto as to obstruct the administration
        of justice; (2) Misbehavior of any of its officers in their official
        transactions; (3) Disobedience or resistance to its lawful writ,
        process, order, rule, decree, or command.
                        UNITED STATES v. TIGNEY                           5
ernment conceded at oral argument, the elements of "contempt of
court" are (1) disobedience (2) of a lawful official court order.

   Similarly, "failure to appear" also requires (1) disobedience (2) of
a lawful official order. But, of course, "failure to appear" has a far
narrower reach than contempt of court, in that it outlaws a particular
manner of disobeying that order — by failing to appear in court on
the designated date. See W. Va. Code § 62-1-5a. A person can violate
a lawful official court order in numerous ways; all amount to con-
tempt, but only one constitutes a failure to appear in court pursuant
to a lawful official order. Given that both offenses punish offenders
for disobeying a lawful official order, we have no difficulty conclud-
ing that the elements of failure to appear "resembl[e] in many
respects" or "nearly correspond[ ]" to the elements for contempt of
court. Harris, 128 F.3d at 854.3
  3
    There is, however, an important distinction between contempt of court
generally and failure to appear under the circumstances presented here.
In this case, Tigney was convicted of failing to appear in court in
response to a citation issued by a police officer, not by the court. Because
an essential element of contempt of court under § 401(3) is that the court
enter a "lawful order," United States v. Bernardine, 237 F.3d 1279, 1282
(11th Cir. 2001), the federal contempt statute would not even have crimi-
nalized Tigney’s conduct. The Government does not argue that this dis-
tinction renders the two offenses "dissimilar," and, of course, offenses
need not be identical to qualify as "similar" under § 4A1.2(c). See United
States v. Spaulding, 339 F.3d 20, 22 (1st Cir. 2003). Moreover, to the
extent that the elements of the two offenses diverge in this one respect,
we note that failure to appear is also "similar to" another enumerated
offense — "[h]indering or failure to obey a police officer." U.S.S.G.
§ 4A1.2(c)(1); cf. United States v. Wilson, 927 F.2d 1188, 1189-90 (11th
Cir. 1991) (finding that "military AWOL" is "similar to the listed civilian
offenses of ‘[c]ontempt of court,’ and ‘[h]indering or failure to obey a
police officer’ because they "similarly involve a disregard for lawful
authority"). Both require the defendant to (1) fail to comply (2) with a
lawful order (3) issued by a police officer. See, e.g., W. Va. Code § 17C-
2-3(c) ("No person shall willfully fail or refuse to comply with a lawful
order or direction of any police officer . . . ."). Again, failure to appear
is slightly more specific in that it requires the non-compliance to be in
the form of failing to appear in court on the designated date, but the ele-
ments still "resembl[e]" each other "in many respects." Harris, 128 F.3d
at 854.
6                       UNITED STATES v. TIGNEY
   Although the Government itself acknowledges that failure to
appear could "technically [be] a form of contempt," and admits that
there is "some similarity" between the two offenses, it nevertheless
argues that because contempt of court encompasses a broad array of
behaviors and applies to other parties beyond the defendant, it cannot
be considered "similar to" failure to appear. The Government’s
approach, which would bar exemption of an offense that the Govern-
ment itself concedes actually is a form of contempt of court, would
essentially preclude any offense which was "similar to" but not itself
"contempt of court" from coming within the ambit of § 4A1.2(c). This
result conflicts with the plain language of § 4A1.2(c)(1), which
expressly excludes not only "contempt of court" but also "similar"
offenses. Not surprisingly then, the Government fails to cite, and we
have found no legal support for this novel argument.4

   The Government also maintains that a comparison of the respective
punishments for failure to appear and contempt of court favor its
interpretation. But, in fact, this comparison only serves to demonstrate
further the similarity between the offenses. Although we declined in
Harris to "define ‘similar’ offenses primarily with reference to factors
    4
    In addition, the Government contends that the omission of a specific
sentencing guideline for contempt, and provision of individual guidelines
for failure to appear, demonstrate that the "offenses are not treated simi-
larly in the Guidelines." This argument is equally unavailing. First, no
guideline addresses the sort of failure-to-appear offense at issue here —
a defendant’s failure to appear in response to a police citation without
having first been arrested and released by the court. See U.S.S.G. § 2J1.5
(addressing a material witness’s failure to appear); U.S.S.G. § 2J1.6
(addressing a defendant’s failure to appear after being released). But,
more importantly, the contempt of court guideline instructs courts to
apply the guideline of an analogous crime. See U.S.S.G. § 2J1.1
(instructing courts to apply § 2X5.1 which in turn directs courts to apply
"the most analogous offense guideline"). In looking for such an "analo-
gous" guideline, several courts have applied those for failure to appear.
See United States v. Jones, 278 F.3d 711, 716 (7th Cir. 2002); see also
United States v. Ryan, 964 F. Supp. 526, 529-30 (D. Mass. 1997) (sum-
marizing possible analogous guidelines, including failure to appear by a
material witness). Thus, on examination, this argument only provides
further support for the conclusion that the two offenses are indeed "simi-
lar."
                       UNITED STATES v. TIGNEY                         7
such as their respective punishments," Harris, 128 F.3d at 855
(emphasis added), we suggested that such a comparison might be
warranted if the defendant first established some similarity between
the elements. Id. (stating that "[a]bsent any similarity between the ele-
ments of [the defendant’s] prior offense and the elements of the
offenses listed in Section 4A1.2(c), we do not need to consider possi-
ble similarities in the punishments"). Thus, having in this case estab-
lished a similarity between the offenses based on a comparison of the
elements, we now look to their respective punishments.

   Contempt of court and failure to appear under West Virginia law
carry the same punishment — both leave the court with discretion to
fix the penalty. Compare 18 U.S.C. § 401 (giving the court the
"power to punish by fine or imprisonment, or both, at its discretion,
such contempt of its authority") (emphasis added) with W. Va. Code
§ 61-11-17 (stating that when the punishment for a misdemeanor is
not otherwise prescribed (as with § 62-1-5a), it shall be "ascertained
by the court"). Thus, the punishments for contempt of court and the
failure to appear violations at issue here are commensurate, providing
an additional indication that the offenses are substantively "similar."

                                  III.

   For all of these reasons, we hold that failure to appear under West
Virginia law is "similar to" contempt of court, and thus falls within
the misdemeanor exception under § 4A1.2(c)(1). As a result, the dis-
trict court improperly sentenced Tigney as a Category III offender.
Accordingly, we vacate Tigney’s sentence and remand for resentenc-
ing consistent with this opinion.

                                         VACATED and REMANDED
