King v. Andrews

44 F. App'x 262

Opinion

MEMORANDUM

**

David Stuart King was sentenced separately for failing to appear for trial and for the underlying offense of distributing methamphetamine. We have previously held that when an individual is convicted separately for failing to appear for trial and for the underlying offense, the combined sentence may be no longer than if the two charges had been joined in a single trial and grouped for sentencing. United States v. Jernigan, 60 F.3d 562, 564 (9th Cir.1995). The Sentencing Guidelines instruct that when a defendant is convicted of an offense, his failure to appear for trial warrants a two-level enhancement pursuant to § 3G1.1. U.S.S.G. § 2J1.6 n. 3. King received a 121-month sentence for distributing methamphetamine; that sentence included a two-level enhancement. The Bureau of Prisons, however, calculated King’s release date to have him serve not only the 121-month sentence, but an additional 36-month sentence imposed after his separate conviction for failing to appear for trial on the methamphetamine charges. The government acknowledges, and we agree, that the Bureau of Prisons erroneously calculated King’s release date and that the writ of habeas corpus should have been granted.

REVERSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.