In the
United States Court of Appeals
For the Seventh Circuit

No. 91-3007

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HUMBERTO LECHUGA,

Defendant-Appellant.


Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 91-CR-115--Thomas J. Curran, Judge.


ARGUED APRIL 1, 1992--DECIDED SEPTEMBER 18, 1992


   Before CUMMINGS, CUDAHY and EASTERBROOK, Circuit
Judges.

   CUMMINGS, Circuit Judge.   After his May 24, 1988, ar-
raignment for possession of cocaine with intent to distrib-
ute and conspiracy therefor, defendant Humberto Lechuga
was released on bail on the condition that he make all
court appearances and report each week to the U.S. Pre-
trial Services Office. The magistrate judge who presided
over the arraignment advised Lechuga that his narcotics
trial was set for July 5, 1988. Four days before that trial
date, Lechuga's probation officer reminded defendant that
he was required to attend the July 5, 1988, trial before
Judge Gordon at 10:00 a.m. in Milwaukee, Wisconsin.

   When Lechuga's case was called for trial on July 5, only
his co-defendant appeared. Consequently the district judge
revoked Lechuga's bail and issued a bench warrant for
his arrest. Lechuga was not located until over two years
later. On April 8, 1991, a federal marshal found Lechuga
in a Chicago apartment carrying a false Illinois driver's
license in the name of Margarito Medina, and possessing
an airplane ticket in that name for a May 26, 1991, trip
to Los Angeles. A week after he was located, Lechuga
was indicted under 18 U.S.C. sec. 3146(a)(1) for failure "to
appear before a court as required by the conditions of
his release."
   In May 1991, a jury found Lechuga guilty of both counts
in the narcotics case and subsequently Judge Gordon sen-
tenced him to concurrent sentences of 75 months' impris-
onment. In June 1991, a jury found defendant guilty of
the sec. 3146 failure to appear charge. For that crime, Judge
Curran sentenced defendant to 25 months' imprisonment,
to be served consecutive to the sentence in the narcotics
case. In reaching that sentence, Judge Curran rejected the
pre-sentence report's recommendation that the defendant
receive a two-level decrease for acceptance of responsibil-
ity under United States Sentencing Guideline ("U.S.S.G.")
sec. 3E1.1. It is from that proceeding before Judge Curran
that Lechuga now appeals.

   Lechuga raises numerous challenges to his conviction
and sentence under 18 U.S.C. sec. 3146. We affirm that con-
viction but remand for resentencing, as requested by both
parties.

Admission of certified court records

   Defendant first objects to the district court's admission
of nine government exhibits (Exhibits 3, 4, 6, 7, 8, 9, 10,
11 and 13). Those exhibits consist of various court records,
which include an Order Setting Conditions of Release, an
Appearance Bond, and minutes from several court proceed-
ings. Each of the public documents contained the required
certification, and each was admitted as a self-authenticating
document. See Rule 902(4) Federal Rules of Evidence. The
defendant makes no objection to the authentication, and
indeed concedes that the documents were appropriately
determined to be self-authenticating (Br. 16). Nevertheless,
he contends that the documents should not have been ad-
mitted because they contain hearsay and because the gov-
ernment failed to lay a foundation for their admission. Ac-
cording to the defendant, in order to admit the documents,
the government must prove that the makers of the docu-
ments, such as the magistrate judge or the court clerk,
were unavailable for trial. He also asserts that the docu-
ments must meet hearsay exceptions such as the excep-
tion for recorded recollections. In that vein, the defen-
dant suggests, for example, that before the government
may admit the certified minutes of court proceedings, the
court clerk must testify that she no longer remembers
the events transcribed, but recorded them when the mat-
ter was fresh in her memory.

   Even if these documents are hearsay, the defendant's
argument is easily rejected by reference to Rule 803 of
the Federal Rules of Evidence entitled Hearsay Excep-
tions; Availability of Declarant Immaterial. Rule 803 pro-
vides in relevant part:

   The following are not excluded by the hearsay rule,
even though the declarant is available as a witness:
* * * (8) Public Records and Reports. Records, re-
ports, statements, or data compilations, in any form,
of public offices or agencies, setting forth (A) the ac-
tivities of the office or agency, or (B) matters ob-
served pursuant to duty imposed by law as to which
matters there was a duty to report, excluding, how-
ever in criminal cases matters observed by police of-
ficers and other law enforcement personnel, or (C)
in civil actions and proceedings and against the Gov-
ernment in criminal cases, factual findings resulting
from an investigation made pursuant to authority
granted by law, unless the sources of information or
other circumstances indicate lack of trustworthiness.

   When an authorized person certifies facts asserted in
public records and reports, such as the fact that defen-
dant was released on bond, or the fact that at arraign-
ment the magistrate judge instructed Lechuga to appear
at trial on July 5, those assertions are admissible under
the public records exception to the hearsay rules. In the
Matter of Oil Spill by the Amoco Cadiz, 954 F.2d 1279,
1307-1308 (7th Cir. 1992), United States v. Lumumba, 794
F.2d 806, 815 (2d Cir. 1986), certiorari denied, 479 U.S.
855. The court records at issue in this case were proper-
ly received in evidence under Rule 902(4) and Rule 803(8)
of the Federal Rules of Evidence. United States v. Kord,
836 F.2d 368, 376 (7th Cir. 1988), certiorari denied, 488
U.S. 824, Oriental Health Spa v. City of Fort Wayne, 864
F.2d 486 (7th Cir. 1988).

Admission of tape recording of arraignment and plea

   Defendant also challenges the admission of government
Exhibit 12, a certified copy of the tape recording of the
May 24, 1988, arraignment and plea before Magistrate
Judge Goodstein in United States v. Humberto Lechuga,
Case No. 88-CR-59 (involving conspiracy and possession
of cocaine). That tape shows, among other things, that
the magistrate ordered Lechuga to appear at trial on July
5, 1988. This exhibit bore the following certification signed
by the deputy clerk and dated June 24, 1991:

U.S. District Court, Eastern Dis. of Wis. I hereby
certify that this is a true and correct copy of the
original now remaining of record in my office. Sofron
B. Nedilsky, Clerk.

This certification establishes that the tape recording was
a "true, accurate and authentic" recording of the May 24,
1988, arraignment and plea as required by United States
v. Carrasco, 887 F.2d 794, 802 (7th Cir. 1989). Since Ex-
hibit 12 was a certified copy of a public record, it was
admissible under Rules 803(8) and 902(4) of the Federal
Rules of Evidence. Oriental Health Spa v. City of Fort
Wayne, 864 F.2d 486, 490 (7th Cir. 1988).

Jury Instruction

   Defendant next submits that his requested instruction
11 should have been given by the trial judge. It provided
as follows:

In order for the government to convict Mr. Lechuga
it must prove beyond a reasonable doubt that Judge
Gordon revoked Mr. Lechuga's bond after 10:00 a.m.
on July 5, 1988.

The defendant's proffered instruction is not a correct state-
ment of law. Section 3146(a) of Title 18 of the United States
Code states that "Whoever, having been released under
this chapter knowingly--(1) fails to appear before a court
as required by the conditions of his release * * * shall
be punished as provided in subsection (b) of this section."
In order to prove a violation under sec. 3146(a)(1), the gov-
ernment must prove that the defendant 1) was released
on bail, 2) was required to appear in court, 3) was aware
of this required appearance, 4) failed to appear as required,
and 5) was willful in his failure to appear. United States
v. McGill, 604 F.2d 1252 (9th Cir. 1979), certiorari denied,
444 U.S. 1035. Even assuming arguendo that the district
court revoked Lechuga's bail at 9:55, the state's ability
to prove these five elements was not frustrated. Unlike
United States v. Castaldo, 636 F.2d 1169 (9th Cir. 1980),
on which Lechuga relies (Br. 32-33), this case does not
involve a defendant's failure to appear for a trial that was
scheduled after the defendant was already a fugitive from
the law, having failed to appear for an earlier court date.
The instruction was rightly refused.

Application of Sentencing Guidelines

   At sentencing on the obstruction offense the district
court computed Lechuga's criminal history score as in-
cluding his conviction for the underlying narcotics charge.
Therefore the court sentenced Lechuga within the guide-
line range for a base offense level of 15 and a criminal
history category of II. However, as the United States
Sentencing Commission recently clarified when it added
Application Note 4 to guidelines sec. 2J1.6, if the defendant
is sentenced on the underlying offense before being sen-
tenced on the failure to appear offense, "criminal history
points for the sentence imposed on the underlying offense
are to be counted in determining the guideline range on
the failure to appear offense only where the offense * * *
constituted a failure to report for service of sentence."
Lechuga's case involved a failure to report for trial, not
a failure to report for service of sentence. Thus his con-
viction for the drug offenses should not have increased
his criminal history category. The proper category is cate-
gory I rather than category II. Accordingly, the applicable
sentencing range for the obstruction offense should have
been 18-24 months, rather than 21-27 months. As such,
the 25-month sentence imposed by Judge Curran was out-
side the permissible guideline range.

   For the purpose of remand, and in the event that Le-
chuga's underlying conviction is upheld, we address the
appropriate manner of sentencing under the guidelines
when, at separate trials, a defendant has been convicted
of an underlying offense and of failure to appear for trial.
When a defendant is convicted in separate trials of two
crimes that would be grouped if they had been consoli-
dated in a single trial, the second trial court should im-
pose a total sentence commensurate with that which the
defendant would have received had the offenses been
grouped at a single trial. This is so even if the second
court must depart downward from the guidelines to achieve
such a result. This procedure accords with the sentencing
guidelines' purpose "to avoid unwarranted sentence dis-
parities among defendants with similar records who have
been found guilty of similar conduct." 18 U.S.C. sec. 3553.
The goal of eliminating unwarranted sentence disparities
directly pertains to the grouping provisions which were
devised "in order to limit the significance of the formal
charging decision." Introductory Comment, Section 3, Part
D--Multiple Counts. Thus in the second trial, the district
court must impose a total sentence equal to that which
would have been imposed in a single trial. See U.S.S.G.
sec. 5G1.3(b) and Commentary.

   When a defendant has been convicted of an underlying
offense and a failure to appear offense at a single trial, the
Application Notes to the guidelines explicitly provide that
those offenses should be grouped for sentencing. Appli-
cation Note 3 to sec. 2J1.6 to the November 1, 1991, guide-
lines provides that "in the case of a conviction on both
the underlying offense and the failure to appear [other
than a failure to appear for service of sentence], the fail-
ure to appear is treated under sec. 3C1.1 (Obstructing or
Impeding the Administration of Justice) as an obstruc-
tion of the underlying offense; and the failure to appear
count and the count(s) for the underlying offense are
grouped together under sec. 3D1.2(c)." See also Application
Note 6 to sec. 3C1.1. Although the Application Notes to the
guidelines in force at the time of Lechuga's sentencing
were slightly less explicit, they nevertheless lead to the
same result. Application Note 6 to sec. 3C1.1 of the Novem-
ber 1990 guidelines states: "Where the defendant is con-
victed of both the obstruction offense and the underly-
ing offense, the count for the obstruction offense will be
grouped with the counts for the underlying offense under
subsection (c) of sec. 3D1.2 (Groups of Closely-Related Counts).
The offense level for that group of closely-related counts
will be the offense level for the underlying increased by the
2-level adjustment specified by this section, or the offense
level for the obstruction offense, whichever is greater."/1
Under those Application Notes, if Lechuga had been con-
victed of both offenses during one trial, the failure to appear
offense (Case No. 91-CR-115) would have been treated
as an "Obstruction" of the underlying drug offenses (Case
No. 88-CR-59). This grouping would result in a two-level
enhancement for the obstruction offense. When added to
the defendant's base offense level of 26 for the drug of-
fenses, that enhancement would have yielded a Level 28
offense, and a sentencing range of 78 to 97 months' im-
prisonment. In this case then, the total sentence imposed
on Lechuga for the underlying offenses and the obstruc-
tion offense may not exceed 97 months unless there are
grounds for upward departure. Since Judge Reynolds sen-
tenced Lechuga to two concurrent 75-month sentences,
Judge Curran's sentence for the failure to appear offense
could not exceed 22 months.

   Of course, this analysis pertains only if Lechuga's un-
derlying drug conviction is upheld. If that conviction is
reversed, Judge Curran should resentence the defendant
for the failure to appear offense as though that offense
is his sole conviction.

Denial of credit for defendant's
acceptance of responsibility

   Judge Curran did not award defendant the two-level
reduction he sought for acceptance of responsibility as set
forth in U.S.S.G. sec. 3E1.1. A district court's determination
of a particular defendant's acceptance of responsibility is
a factual determination to which we defer absent evidence
of clear error. Here the court denied defendant that reduc-
tion, which was reasonable based on the defendant's fail-
ure to surrender voluntarily and based on his own false
identification to officers in Chicago. The ruling was not
erroneous. United States v. Knorr, 942 F.2d 1217, 1223
(7th Cir. 1991).

   Defendant's conviction is affirmed but the cause is
remanded to Judge Curran for resentencing.


FOOTNOTE


/1
   The November 1990 Application Note 3 to sec. 2J1.6 is
not to the contrary. That Note merely provides that or-
dinarily the penalty for a failure to appear offense will
not be increased by an obstruction enhancement.