*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstancesset forth in 5THCIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-40292

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GERARDO RAMIREZ,

Defendant-Appellan6t.

Appeal from the United States District Court

For the Southern District of Texas

(B-95-CR-169)

March 12, 1998

Before WISDOM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

On January 2, 1996, Gerardo Ramirez pleaded guilty to failing to appear for sentencing in

violation of 18 U.S.C. § 3146(a) and (b)(1)(A)(I). The district court sentenced Ramirez to 24

months’ imprisonment to run consecutively with the 108 month sentence already imposed for the

underlying offense of possession with intent to distribute marijuana. Ramirez appeals.
2 United States v. Calverley, 37 F.3d 160, 162-4 (5th Cir. 1994).

3 U.S.S.G. § 2J1.6 (Application Note 4).

4 The offense levelfor Ramirez’sfailure to appear was 13. This level is calculated based

upon a base offense level of six, a nine level enhancement because the underlying offense was

punishable by a term of more than 15 years, and a two level decrease for acceptance ofresponsibility.

See U.S.S.G. § 2J1.6 (a)(2) and (b)(2)(A). The guideline range for an offense level of 13 and a

Criminal History Category of III is 18 to 24 months. Ramirez’s sentence was within this range.

5 United States v. Packer, 70 F.3d 357, 359-60 (5th Cir. 1995).

2

First, Ramirez argues that the district court erred in calculating his criminal history score for

the failure to appear offense. The district court found that Ramirez had eight criminal history points.

These included three for the underlying drug offense, three for a 1988 conviction for conspiracy to

possess with intent to distribute marijuana, and t wo for committing the current offense while on

supervised release. This score placed Ramirez in criminal history category IV. Ramirez argues that

his correct criminal history score was five, placing him in criminal history category III, because the

district court erred in assessing three pointsfor the underlying drug conviction. Ramirez did not raise

this issue in the district court. We review this argument for plain error.2 Although we find that the

district court should not have included the underlying drug conviction in the criminal history score

calculation,3 we find that no reversible error was committed. Ramirez was sentenced to 24 months’

imprisonment, a sentence within the appropriate guideline range for a criminal history category III

offender.4

Ramirez also argues that the district court erred by failing to group the underlying offense

with the charge of failure to appear. We disagree. In United States v. Packer, this Court expressly

rejected the argument that a charge offailure to appear must be grouped with the underlying offense.5

Finally, Ramirez maintains that the district court erred by imposing a sentence for the failure
6 United States v. Garcia, 962 F.2d 479, 480-1 (5th Cir. 1992).

7 The base offense levelfor this drug offense involving 909 kilograms of cocaine would

be 30. U.S.S.G. § 2D1.1. The district court granted Ramirez a three level downward departure for

acceptance of responsibility. This would give Ramirez an offense level of 27.

8 Thislevel is calculated the same as above with a two level increase for obstruction of

justice. U.S.S.G. § 3C1.1.

3

to appear charge after the court enhanced the sentence on the underlying count for obstruction of

justice. When reviewing a sentence, we will uphold that sentence unless it was imposed in violation

of the law, imposed as a result of an incorrect application of the guidelines, or was outside the

appropriate guideline range.6 We find that no reversible error was committed in this case. For

present purposes, we will assume that Ramirez’s argument is correct, and the district court could

either impose separate sentences for the two offenses or could enhance the sentence for the

underlying offense for obstruction of justice. Under either approach, Ramirez’s sentence is within

the appropriate guideline range. Under the first approach, Ramirez’s sentence for the underlying

offense would be calculated using an offense level of 277and a criminal history score ofIII, providing

for a sentencing range of 87 to 108 months’ imprisonment. The district court sentenced Ramirez to

108 months on the underlying offense, a sentence within the range. Under the second approach,

Ramirez’ssentence would be calculated based upon an offense levelof 29,8providing for a sentencing

range of between 108 and 135 months. The total sentence imposed on Ramirez for the two offenses

was 132 moths’ imprisonment, also within the guideline range. No reversible error was committed.

The judgment is AFFIRMED.