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No Need to Prove Underlying Offense for Sentence Enhancement

By Robyn Hagan Cain | Last updated on

When a defendant decides to skip town instead of appearing at a change of plea hearing, he might not want to later plead guilty to failure to appear.

It's a calculated risk, of course, but the Eighth Circuit Court of Appeals explains this week why a guilty plea to the latter charge could be a bad idea.

In 2004, a grand jury charged Humberto Jacobo with conspiracy to distribute 500 grams or more of methamphetamine. Jacobo failed to appear at a change of plea hearing in 2005. As a result, a grand jury returned another indictment in October 2009, charging Jacobo with failure to appear.

In January 2010, during the pendency of the failure to appear case, the district court granted the government's motion to dismiss the April 2004 indictment against Jacobo without prejudice; he was never convicted of the underlying trafficking offense.

But Jacobo was still wanted for going M.I.A.

Authorities arrested Jacobo in June 2011. Four months later, he entered a guilty plea for his disappearing act.

The district court applied a 9-level increase to Jacobo's advisory guideline sentencing range for failure to appear because the underlying offense was punishable by death or imprisonment for a term of 15 years or more.

On appeal, Jacobo argued that the district court erred in applying the nine-level increase because the government failed to prove that Jacobo actually committed the underlying offense of conspiracy to distribute methamphetamine.

The Eighth Circuit concluded that the state didn't actually have to prove anything to justify the enhancement. The court noted, "There is no requirement, however, that the prosecution prove the underlying offense, so there was no plain error. The 'underlying offense' is 'the offense in respect to which the defendant failed to appear.' If that offense is 'punishable' by imprisonment for a term of fifteen years or more, then the guidelines direct the court to apply a nine-level increase."

The issue in failure to appear sentencing is not whether the defendant actually committed the underlying offense. Before you advise your client to plead guilty to dodging the court, make sure he understands that the court can impose a sentence enhancement based on dismissed charges.

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