1

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 31 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THOMAS C. KNOWLES, a/k/a Harvey

Hamilton, a/k/a Lynn Curtis Ross,

Defendant-Appellant.

No. 96-2244

(D.C. No. CR-95-600-BB)

(D. N.M.)

ORDER AND JUDGMENT1

Before BRORBY, EBEL and KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.
1

 In Anders v. California, 386 U.S. 738, 744 (1967), the Supreme Court

provided a procedure for appellate counsel to withdraw from representation if he

finds the appeal lacks merit. In accord with Anders procedure, Mr. Knowles'

counsel requested permission to withdraw and submitted a brief referring to

arguments discussed in this opinion that might arguably support the appeal.

2

 Because we find Mr. Knowles' appeal lacks merit, we grant permission to

Mr. Knowles' counsel to withdraw from further representation of Mr. Knowles in

connection with this appeal. See Anders, 386 U.S. at 744.

2

Mr. Thomas C. Knowles, also know as Harvey Hamilton and Lynn Curtis Ross,

appeals the sentence imposed following his guilty plea for failure to appear in violation of

18 U.S.C. § 3146(a)(1) and (b)(1)(A)(i). He was sentenced to a term of thirty months

imprisonment followed by three years of supervised release. Mr. Knowles contends the

district court improperly applied United States Sentencing Guidelines § 2J1.6 (1995)

(U.S.S.G.), and abused its discretion in failing to grant him a downward departure. This

appeal comes to us from an Anders brief filed by Mr. Knowles' counsel.1 We affirm Mr.

Knowles' sentence.2

On November 1, 1995, Mr. Knowles was charged by a criminal complaint alleging

he passed, with intent to defraud, and possessed counterfeit $100 federal reserve notes in

violation of 18 U.S.C. § 472. At his initial appearance on the same day, Mr. Knowles was

released on personal recognizance and ordered to appear on November 6, 1995 for a

preliminary hearing. Mr. Knowles failed to appear at his preliminary hearing. A bench
3

 The relevant provisions of U.S.S.G. § 2J1.6 (Failure to Appear by

Defendant) provide:

(a) Base Offense Level:

(1) 11, if the offense constituted a failure to report for

service of sentence; or

(2) 6, otherwise.

....

3

warrant was issued for Mr. Knowles' arrest.

On November 16, 1995, an indictment was returned charging Mr. Knowles with

two counts of Utter and Possess Counterfeit Obligations in violation of 18 U.S.C. § 472. 

Mr. Knowles was subsequently arrested on April 16, 1996, on the warrant relating to his

indictment. On June 4, 1996, he pleaded guilty to one count of failure to appear, in

violation of 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(i). The counterfeiting charges were

dropped as part of Mr. Knowles' plea bargain.

Mr. Knowles' Presentence Report ("PSR") recommended a sentence between thirty

to thirty-seven months, based on a total offense level of thirteen with a criminal history

category of V. The PSR calculated Mr. Knowles' sentence using a base offense level of

six under U.S.S.G. § 2J1.6(a)(2), plus a nine-level enhancement under U.S.S.G.

§ 2J1.6(b)(2)(A)3 because the underlying counterfeit currency offense under 18 U.S.C.
[b](2) If the base offense level is determined under

subsection (a)(2), and the underlying offense is --

(A) punishable by death or imprisonment for a term of

fifteen years or more, increase by 9 levels ....

4

§ 472 carried a maximum penalty of fifteen years, less a two level decrease pursuant to

U.S.S.G. § 3E1.1(a) for acceptance of responsibility.

Prior to sentencing, Mr. Knowles moved for a downward departure from the PSR

recommended sentence on the ground U.S.S.G. § 2J1.6 was incorrectly applied. 

However, the district court denied Mr. Knowles' motion because it concluded Mr.

Knowles' case was "within the heartland of the sentencing guidelines for failure to

appear."

Mr. Knowles makes the same claims on appeal as he made in his presentencing

motion. Mr. Knowles first contends the trial court erred in applying U.S.S.G. § 2J1.6

because according to the guideline commentary, § 2J1.6 only "applies to a failure to

appear by a defendant who was released pending trial, sentencing, appeal, or surrender for

service of sentence," and not as in his case for failure to appear pending a preliminary

hearing. U.S.S.G. § 2J1.6, comment. (backg'd.). Mr. Knowles does not dispute the

district court's factual findings.
4

 18 U.S.C. § 3142 provides:

Upon the appearance before a judicial officer of a person charged

with an offense, the judicial officer shall issue an order that, pending

trial, the person be--

(1) released on personal recognizance ...;

(2) released on a condition or combination of conditions ...;

(3) temporarily detained ...; or

(4) detained [until and during trial] ....

(Emphasis added.)

5

"We review the district court's legal interpretation of the guidelines de novo." 

United States v. Agbai, 930 F.2d 1447, 1448 (10th Cir. 1991). The district court correctly

applied U.S.S.G. § 2J1.6 because Mr. Knowles failed to appear for a court proceeding

while released pending trial. Mr. Knowles had been arrested and charged by a criminal

complaint for violations of 18 U.S.C. § 472. At Mr. Knowles' initial appearance, the

district court exercised its authority pursuant to 18 U.S.C. § 3142(a)4

 to release Mr.

Knowles on personal recognizance pending trial. See also Fed. R. Crim. P. 5(c) and

46(a). A condition of Mr. Knowles' release pending trial was that he attend his

preliminary hearing, and he failed to appear. Therefore, the district court properly

applied § 2J1.6 to Mr. Knowles' sentence.

Mr. Knowles also contends the district court abused its discretion in not departing

downward from his recommended sentence because had he only pleaded guilty to the
6

counterfeit currency charge rather than the failure to appear charge, his sentence would

have been less. However, as this court ruled in Agbai, it is "logical and compelling" to

link the severity of the failure to appear sentence to the maximum penalty of the

underlying charge even when the defendant is acquitted of the underlying charge. 930

F.2d at 1449-50. The district court recognized it had discretion to depart downward, but

declined to do so. When a district court recognizes its authority to depart but refuses to

exercise that discretion, we have no jurisdiction to review the district court's decision. 

United States v. Sanders, 18 F.3d 1488, 1490 (10th Cir. 1994). As a result, we do not

consider Mr. Knowles' second contention.

Accordingly, we AFFIRM Mr. Knowles' sentence.

Entered for the Court

WADE BRORBY

United States Circuit Judge