U.S. v. Rosas, No. 09-10011 (7-27-10) (N. Smith with B. Fletcher and Thomas). If a defendant fails to appear for sentencing, and ends up in Mexico, it behooves him not to return to the US. Alas, this defendant did return (left in 2003 and got picked up in 2007), and got a new charge (failure to appear (18 U.S.C. 1346) and an increased sentence for his underlying drug charge (where he had been cooperating). Now on appeal, defendant argues that the Guidelines' commentary to enhance the underlying offense for obstruction of justice and to adjust for committing a new offense is double counting. Could be, said the 9th, but the Commission knows when to preclude double-counting, and so it can be said that they intended it in this instance. The use of obstruction and new crime is within the framework. The 9th also found that the other adjustments, such as loss of acceptance, were within the court's discretion, as was denial of minor role.

Note: the court still granted a downward variance of one level.