UNITED STATES of America, Plaintiff-Appellee,

                                                     v.

                                Salvador MAGLUTA, Defendant-Appellant.

                                           Nos. 98-4023, 98-4024.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                               Dec. 23, 1999.

Appeals from the United States District Court for the Southern District of Florida. (Nos. 96-341-CR-JAL,
97-102-CR-JAL), Joan A. Lenard, Judge.

Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge.

         RICHARD MILLS, Senior District Judge:

         Magluta appeals from his conviction and sentence imposed in two separate cases: the "false

identification case" and the "bond jumping case."

         Mainly, he seeks review of the district court's denial of his motion to suppress evidence and the

sentences he received.

         We affirm in part, vacate in part, and remand for re-sentencing.

                                             I. BACKGROUND

A.       False identification case

         Before his incarceration, Magluta was a wanted man. At the time of his arrest on October 15, 1991,

Magluta had four outstanding arrest warrants from several jurisdictions: one from the State of Florida for

1979 cocaine trafficking charges; one from the State of California for 1985 drug trafficking charges; one

from the Middle District of Florida for a currency structuring conspiracy charge; and one from the Southern

District of Florida for various narcotic offenses.




     *
    Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois, sitting by
designation.
        Based on the four outstanding warrants, the United States Marshal's Service Fugitive Unit conducted

a search for Magluta and eventually located him through a confidential informant. The law enforcement

officials determined that Magluta was at a house located at 98 East LaGorce Circle in Miami Beach, Florida

("LaGorce residence") and that he had rented the premises since August 1, 1987 using the name "Santiago

Menendez." On October 15, 1991, at about 6:30 p.m., several federal and state law enforcement officials

arrested Magluta in the bushes of a neighbor's house. Law enforcement officials also arrested another suspect

in the LaGorce residence, and conducted a security sweep of the residence.

        That evening, Special Agent David Borah of the Drug Enforcement Administration ("DEA") swore

to an affidavit and obtained a search warrant for the LaGorce residence. The warrant affidavit contained

Agent Borah's sworn statement that: 1) several witnesses, including a neighbor, verified that Magluta lived

at the LaGorce residence; 2) that during a security sweep of the premises, law enforcement officers observed

"black gym bags inside the closet that were covered up by blankets;" 3) that the officers also observed a safe,

numerous papers, and a "large amount of cash" in plain view of a bedroom closet in the guest house;1 4) that

Borah had been investigating Magluta since 1986, and that as a result of his investigations, Magluta was

indicted in 1991 for violating federal drug laws; 5) that Agent Borah has received information from

confidential informants regarding Magluta's drug and money laundering activities since 1986.

        The magistrate judge found that there was probable cause to believe that Magluta was involved in

drug trafficking activities, and approved the search warrant.2 As a result of the search, agents seized various

documents, $349,000 worth of jewelry, six cellular phones, two fax machines, a money counter, $126,002

in cash, and newspaper articles and documents relating to pending court proceedings against Magluta. Agents

also seized various identification documents with Magluta's picture, but with different names. The documents

seized were as follows: Florida driver's licenses in the names of "Samuel Martinez," "Luis Alberto Chang,"

"Angelo Rosario," and "Christian David Galeano;" New Jersey driver's licenses in the names of "Manuel


   1
   Agent Borah swore that based upon his experience as a member of the DEA, such items were
commonly possessed by drug traffickers.
   2
    After a separate trial on the drug charges, a jury acquitted Magluta.
Martinez" and "Christian D. Galiano;" a California driver's license in the name of "Michael Santini;" a United

States passport in the name of "Samuel Martinez;" a Venezuelan passport in the name of "Manuel Martinez;"

a Panamanian passport in the name of "Luis Alberto Chang Acosta;" two counterfeit INS forms I-94 in the

names of "Manuel A. Martinez" and "Luis Alberto Chang Acosta;" and Social Security cards and Dade

County voter registration cards in the names of "Samuel Martinez," "Christian David Galeano," and "Michael

Santini." Agents also seized bank records for four foreign bank accounts opened with various aliases,

documents relating to Magluta's rental of various properties, and other receipts.3

        On August 2, 1996, a grand jury returned a ten count indictment against Salvador Magluta:

        Count I charged Magluta with making a false statement in an application for a passport, in violation

of 18 U.S.C. § 1542 and § 2;

        Count II charged that Magluta intentionally procured and obtained documentary evidence of U.S.

naturalization and citizenship in violation of 18 U.S.C. § 1425(b);

        Count III charged that Magluta unlawfully possessed a Venezuelan passport purportedly issued to

"Manuel A. Perez," which contained a photograph of Magluta, in violation of 18 U.S.C. § 1546;

        Count IV charged that he unlawfully possessed a Panamanian passport with the name "Luis Alberto

Chang," which contained a photograph of Magluta, in violation of 18 U.S.C. § 1546;

        Count V charged that he obtained a Florida Driver's license through the use of his "Luis Alberto

Chang" passport in violation of 18 U.S.C. § 1544;

        Counts VI and VII charged him with possession with intent to use unlawfully five or more false

identification documents, in violation of 18 U.S.C. § 1028(a)(3);

        Counts VIII, IX, and X charged Magluta with furnishing false information on an application for a

Social Security card, in violation of 42 U.S.C. § 408(a)(6).

        A jury convicted Magluta on all ten counts.



   3
    The receipts were for money spent at Nevada casinos between 1985 through 1991 which totaled
approximately $200,000.00, a stay at New York's St. Regis hotel in October 1991 which totaled
$7,000.00, and a ski trip to Aspen, Colorado in November 1989 which totaled $9,400.00.
B.       Bond jumping case

         On February 6, 1997, during the course of his false identifications trial, Magluta left the courthouse

and asked the court security officer to tell Magluta's attorney that he had left to get something from the car.

Magluta, however, did not return for the remainder of the trial.

         Over two months later, federal marshals arrested Magluta in West Palm Beach, Florida.4 Magluta

eventually pleaded guilty to failure to appear before the district court during his trial—a violation of 18

U.S.C. § 3146.

C.       Sentencing hearing

         The district court held a combined six-day sentencing hearing for both cases. In the false

identification case, the parties agreed that the ten counts should be grouped together pursuant to U.S.S.G. §

3D1.2(b) (1990). Out of the three possible sections that the district court could have applied under § 3D1.3

in determining the base offense level, the district court applied § 2F1.1 (provision for fraud or deceit) to the

counts and assigned a base offense level of six. The district court also imposed a two-level increase for

"violation of judicial ... process" under § 2F1.1(b)(3)(B) because Magluta used false identification documents

to avoid judicial process, and increased the base offense level to 12 under § 2F1.1(b)(5) for using a foreign

bank account in the offense. The district court found that, based on a base offense level of 12 and a criminal

history category of III, the relevant imprisonment range was 15 to 21 months.

         The district court, however, imposed a six-level upper departure pursuant to U.S.S.G. § 5K2.7,

Application Note 9 to § 2F1.1 and § 5K2.9, for disrupting governmental function, committing the offense to

facilitate the commission of another offense, and causing loss of confidence in an important institution,

respectively. The court also granted the government's request for an upper departure of Magluta's criminal


     4
     At the time of his arrest, Magluta was driving a car that was rented to "Carlos Guerra." Moreover, he
had changed his appearance by shaving his head and wearing a wig. He possessed a bag containing
$20,000.00 in cash, several identification documents in the name of "Juan Alfonso," and a notepad
containing various notes, including, but not limited to: instructions to his son regarding grand jury
testimony; a list of "[p]eople I need to have access with;" a note stating "[r]edo-do = all corporations &
redistribute all shares;" and a note stating, "FORFEITURES: Everybody put claimers on all the objects
etc." In addition, it was later determined that he had been living in a suite at the Ritz-Carlton hotel under
the name of "Edward Cedras."
history category from III to VI, pursuant to § 4A1.3. As a result, the adjustments yielded a sentencing range

of 57-71 months, and the court sentenced Magluta to 71 months imprisonment.

        In the bond jumping case, the district court applied U.S.S.G. § 2J1.6(a)(2) (1997) and set the base

offense level at six. Holding that "the underlying offense" carried a possible term of imprisonment for over

15 years, the court then increased the offense level by nine pursuant to § 2J1.6(b)(2)(A). The court then

added two-levels for obstruction of justice under § 3C1.1 based on the documents Magluta possessed at the

time of his arrest regarding his assets and corporate entities as well as the fraudulent identifications he

possessed and used while he was a fugitive. The court then gave a three-level reduction for acceptance of

responsibility under § 3E1.1. With regard to Magluta's criminal history category, the court departed upward

to criminal history category of V based on the risk of recidivism. Accordingly, based on a base offense level

of 14 and a criminal history category of V, the court found the relevant sentencing range to be 33-41 months.

The court sentenced Magluta to 41 months.

        In both cases, the district court sentenced Magluta to three years supervised release, and that the

respective sentences and supervised release were to be served consecutively.

                                                 II. ISSUES

        The issues raised in this appeal are whether:

1.      Magluta's conviction in the false identification case should be reversed because the search warrant
        affidavit that justified the search of Magluta's LaGorce residence was facially insufficient to support
        a finding of probable cause;

2.      In the false identification case, whether the district court erred in applying the fraud provision (§
        2F1.1) as opposed to the guideline for false citizenship and naturalization documents (§ 2L1.1);

3.      In the false identification case, whether the district court erroneously imposed the enhancements for
        use of a foreign bank account and for a violation of "judicial process;"

4.      In the false identification case, whether the district court erred in increasing Magluta's criminal
        history category by three levels;

5.      In the bond jumping case, whether the district court correctly applied the Sentencing Guidelines to
        impose a sentence that is consecutive to the sentence in the false identification case;

6.      In both cases, whether the district court erroneously ordered the terms of supervised release to run
        consecutively.
                                       III. STANDARD OF REVIEW

         Whether a search warrant affidavit provides sufficient facts to establish probable cause is reviewed

de novo. See United States v. Butler, 

, 1198 (11th Cir.), cert. denied, 

, 

, 

(1997).

         We review the district court's interpretation of the sentencing guidelines de novo. See United States

v. Maurice, 

, 1556 (11th Cir.1995). The sentencing court's factual determinations are reviewed

for clear error. See United States v. Taylor, 

, 942 (11th Cir.1996); United States v. Howard, 

, 1503 (11th Cir.1991). Lastly, the district court's decision to depart from the applicable sentencing

guideline range is reviewed for abuse of discretion. See Koon v. United States, 

, 97, 

, 2046, 

(1996); United States v. Hoffer, 

, 1199 (11th Cir.1997).

                                              IV. DISCUSSION

A.      Search Warrant

        Magluta contends that Agent Borah's affidavit failed to establish probable cause to search the

LaGorce residence. We must reject Magluta's argument.

         The task of the issuing magistrate judge [in determining whether to issue a warrant] is simply to

make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before

him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is

a fair probability that contraband or evidence of a crime will be found in a particular place. See Illinois v.

Gates, 

, 238, 

, 2332, 

(1983). This question is reviewed de novo

by an appellate court, "tak[ing] care to review findings of historical fact only for clear error and to give due

weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas

v. United States, 

, 697, 

, 1662, 

(1996). We note, however, that

"[i]nformation [in the warrant application] must be timely for probable cause to exist, for probable cause must

exist at the time the magistrate judge issues the search warrant." United States v. Green, 

, 1172

(11th Cir.1994) (quoting United States v. Harris, 

, 450 (11th Cir.1994)).
         Magluta first argues that the information relating to the 1991 indictment were "stale," and not

indicative of an ongoing criminal enterprise because the affidavit failed to indicate "when Magluta was said

to have been involved [in the drug transactions.]" We reject this argument for three reasons: first, the "basic

criterion as to the duration of probable cause [or staleness] is the inherent nature of the crime." U.S. v.

Bascaro, 

, 1345 (11th Cir.1984). In this case, it is undisputed that Magluta was being

investigated for drug trafficking activities—which are activities this Court has previously noted to be

"inherently protracted and continuous." See 

Thus, the specific dates that Magluta engaged in the

illegal activity are not as important as the nature of the underlying offense in determining the staleness issue.

Second, the affidavit also demonstrated that Magluta maintained an ongoing relationship with a coconspirator,

Orlando Lorenzo. Such a relationship with a coconspirator is a strong indicator of a defendant's continuing

criminal activity. See United States v. Harris, 

, 451 (11th Cir.1994) (noting that a coconspirator's

access to the defendant's house made it "probable that drug-related activities took place or drug-related

documents were stored at the house.") Third, even if we were to assume that the information related to the

indictment is stale information, "such information is not fatal where the government's affidavit updates,

substantiates, or corroborates the stale material." United States v. Green, 

, 1172 (11th Cir.1994)

(quoting United States v. Harris, 

, 450 (11th Cir.1994)). As noted before, the items observed by

law enforcement officers during the security sweep are typical in a drug trafficker's home. As such, the

observed items contemporized and corroborated the information that Magluta had been—and was—engaged

in drug trafficking at the time the warrant was issued.

        Magluta's "lack of nexus" argument must also fail. The affidavit points out that Magluta was living

at the LaGorce residence, that he was a known drug trafficker, and that law enforcement officials saw items

that are typically held by drug traffickers inside the LaGorce residence. Accordingly, we find that the

affidavit shows a nexus between Magluta's drug trafficking activity and the LaGorce residence to support a

search warrant for the residence.
         In sum, we find that given the information relating to Magluta's past drug trafficking activity,

corroborated by the recent information obtained during the security sweep, there was a fair probability that

Magluta was involved in illegal activity, and that evidence of that activity would be found at the LaGorce

residence. Accordingly, the search warrant was supported by probable cause and the evidence seized during

the search—e.g., fake passports, driver's licenses, identification cards and Social Security cards—were

properly obtained and admitted during the course of the false identification trial.

         Magluta's conviction is hereby affirmed.

B.       Sentence in the false identification case

1.       Whether the district court used the correct guideline

         The district court adopted the recommendation in the PSI that § 2F1.15 governed the guidelines for

Counts VI-X, which charged violations of 18 U.S.C. § 1028, and 42 U.S.C. § 408. Magluta argues that the

district court should have looked at the specific conduct underlying the conviction and should have applied

§ 2L2.2, the Guideline for "Fraudulently Acquiring Evidence of Citizenship or Documents Authorizing Entry

for Own Use." The question about whether a particular guideline applies to a given set of facts is a question

of law, see United States v. Scroggins, 

, 1206 n. 5 (11th Cir.1989), and thus, we review the

district court's decision de novo.

         Magluta analogizes this case with United States v. Kuku, 

(11th Cir.1997), where this

Court vacated a sentence of a defendant who was convicted of unlawfully producing Social Security cards

and selling them to illegal aliens. In that case, the district court sentenced the defendant under § 2F1.1

without examining the underlying offense conduct to determine whether § 2F1.1 actually envisioned

defendant's offense conduct. See 

. On appeal, this Court held that the facts in that

case, along with the language used in the Guidelines, made § 2L2.1 more applicable. Similarly, Magluta




     5
    Although the sentencing occurred in 1997, the district court used the 1990 version of the Sentencing
Guideline to calculate Magluta's base offense level in the false identifications case, presumably because
the 1990 version is more favorable to Magluta than the 1997 version.
argues that the district court failed to examine the underlying conduct and erroneously used § 2F1.1, when

the facts of this case and the language used in the Guidelines makes § 2L2.2 more appropriate.

        We reject this argument.

        First, under the statutory index of the 1990 Guidelines, § 2F1.1 is the only referenced provision for

violations of 42 U.S.C. § 408. Moreover, 2F1.1 is available as a relevant provision to 18 U.S.C. § 1028

violations, while § 2L2.2 is not listed as one of the available provisions. See U.S.S.G.App. A (1990).6 Based

on this index, the district court correctly applied § 2F1.1.

        Second, there is a critical difference between this case and Kuku.7 In Kuku, the case involved

trafficking false identification documents for the purpose of violating, or assisting others to violate, the laws

relating to naturalization, citizenship, or legal resident status, which made § 2L2.1 a natural fit. In this case,

the record is devoid of any evidence that suggests Magluta possessed the false documents to violate laws

relating to naturalization, citizenship, or resident status. Magluta did not use the false identifications to

portray that he was an American citizen; Magluta was already a naturalized citizen. Instead, the record

reflects that Magluta provided false information to various government agencies to fraudulently obtain false

identifications to use in evading law enforcement officials. Thus, when we look at the "conduct which formed

the basis of the underlying conviction" as Magluta suggests, we find that § 2F1.1 (fraud and deceit) better

suits the facts of this case. See also U.S.S.G. § 2F1.1 comment. (n.11) (1990) ("Offenses involving fraudulent

identification documents ... in violation of 18 U.S.C. §§ 1028 and 1029, are also covered by this guideline.")


   6
    Although the statutory index may not be conclusive as to the propriety of a certain Guideline, see,
e.g., United States v. Velez, 

, 1037 (9th Cir.1997), we find that it is an important starting
point for determining the correct guideline.
   7
    In Kuku, this Court relied in part on the language in Commentary 11 of § 2F1.1, which reads in
pertinent part:

                 Where the primary purpose of the offense involved the unlawful production, transfer,
                 possession, or use of identification documents for the purpose of violating, or assisting
                 another to violate, the laws relating to naturalization, citizenship, or legal resident
                 status, apply § 2L2.1 or § 2L2.2, as appropriate, rather than § 2F1.1.

        U.S.S.G. § 2F1.1 comment. (n.11), as amended by U.S.S.G.App. C, Amendment 483. [Emphasis
        added].
        Accordingly, we find no error in the district court's decision to apply § 2F1.1.

2.      Enhancement for use of a foreign bank account under § 2F1.1(b)(5)

        The district court enhanced Magluta's base offense level under § 2F1.1(b)(5) because Magluta had

a Bahamian bank account in the name of Manuel A. Martinez. Section 2F1.1(b)(5) allows an enhancement

if "the offense involved the use of foreign bank accounts or transactions to conceal the true nature or extent

of the fraudulent conduct." The court found that § 2F1.1(b)(5) was an appropriate adjustment "based on both

the nature and extent of the concealment and of the fraud concerning the concealment of funds and the

concealment of the person that were intertwined through the use of a foreign bank account."

        Magluta argues that this adjustment was improper because Magluta's offense—possession or

procurement of false identifications—did not "involve a use of a foreign bank account" as used in §

2F1.1(b)(5), and that even if a foreign bank account was used, the enhancement was still improper because

the account was not used to "conceal the true nature or extent of the fraudulent conduct." In contrast, the

government argues that since the "driving force" of Magluta's offense was his concealment of himself from

law enforcement officials, he used funds from his foreign bank account to sustain his fugitive status, and thus,

the enhancement was proper. Since this issue presents a mixed question of law and fact, we review the

district court's decision de novo. See United States v. Arguedas, 

, 1057 (11th Cir.1996).

         There are no reported court of appeals cases that address the imposition of a § 2F1.1(b)(5)

enhancement. The plain language of this subsection, however, suggests that there are two basic elements to

this enhancement: first, the offense must involve the use of the foreign bank account; and second, the use

must be to "conceal the true nature or extent of the fraudulent conduct." The Commission appears to have

included this subsection because:

        [o]ffenses that involve the use of transactions or accounts outside the United States in an effort to
        conceal illicit profits and criminal conduct involve a particularly high level of sophistication and
        complexity. These offenses are difficult to detect and require costly investigations and prosecutions.
        Diplomatic processes often must be used to secure testimony and evidence beyond the jurisdiction
        of United States courts.
U.S.S.G. § 2F1.1, comment. (backg'd). Thus, the provision was designed to punish and deter defendants from

using foreign accounts to conceal illicit profits and criminal conduct, because the use of foreign bank accounts

often resulted in additional difficulties imposed on the government in investigating the defendant.

Consequently, we hold that for an offense to "involve the use of a foreign bank account," the foreign bank

account was used to further the underlying offenses, or somehow was used to hinder the investigation and/or

the prosecution of the underlying offenses.

         In this case, the district court focused on Magluta's relevant conduct, and not solely on the possession

of false identifications to support the enhancement under this section. Therefore, as an initial matter, we must

determine whether the "offense" as used under this subsection encompasses Magluta's relevant conduct of

avoiding capture. The government argues that the driving force behind Magluta's conduct was the

concealment of himself from law enforcement authorities. Since Magluta was able to conceal himself and

his assets through the use of the money in the foreign bank account, the enhancement was justified.

        We agree.

        Although Magluta was convicted for possessing and procuring false identifications documents, his

"offense" for sentencing purposes includes all other relevant conduct that relates to the conviction.8 In this

case, Magluta's relevant conduct consisted of using those false identifications to avoid arrest and to impede

prosecution of the false identification charge, and other charges. Thus, his "offense" includes his conduct to

avoid capture and prosecution.

        The record reflects that Magluta had a foreign bank account in the name of one of his aliases, and that

during the time he was concealing himself from law enforcement officials, he made several withdrawals from

that account. Due to the large amount of money that Magluta possessed in his foreign bank account, he was

able to use the money to conceal himself from the authorities. Moreover, unlike in cases where the law

enforcement officials can capture fugitives by tracking the fugitive's domestic bank transactions, the facts of

this case show that because Magluta's fiscal resources were located in a foreign bank, law enforcement


   8
    Relevant conduct includes, "all acts ... in the course of attempting to avoid detection or responsibility"
for the underlying offense. U.S.S.G. § 1B1.3 (a)(1) (1990).
officials had additional difficulty tracking Magluta.9 Further, it is reasonable to infer that Magluta's financial

resources gave him the ability to hide in places where law enforcement officials would not normally look for

a fugitive, e.g., expensive hotels, and also that the financial resources gave Magluta greater geographic

mobility. Therefore, we hold that Magluta's "offense" involved the use of a foreign bank account and that

such use hindered the investigations into the offense.

          Magluta further argues that even if the foreign bank account was used, the enhancement was still

improper because it was not used to "conceal the true nature or extent of the fraudulent conduct." We

disagree. As noted before, the district court correctly found that the true nature of Magluta's fraudulent

conduct involved the use of false identifications to avoid prosecutions in several jurisdictions. Since we held

that the district court correctly found that Magluta used the money in the foreign bank account to sustain his

fraudulent conduct of hiding himself from law enforcement officials, we necessarily conclude that the second

element is also satisfied. Accordingly, we hold that the § 2F1.1(b)(5) enhancement was proper.10

3.        Upward departures

          In addition to the abovementioned enhancements, the district court made a six-level upward departure

based on § 5K2.7, § 2F1.1, Application Note 9, and § 5K2.9. Magluta argues that the departure was erroneous

because the reasons given for the departures were already used in imposing the enhancements. We review

a district court's decision to depart from the Guidelines for an abuse of discretion. See 

,

. In reviewing departures from the Guidelines, this Court has developed a three-part test:

          (1) Was the aggravating circumstance cited by the district court adequately taken into consideration
          by the Sentencing Commission in formulating the Guidelines?

          (2) If adequate consideration was not given to the circumstance, was consideration of the
          circumstance consistent with the goals of the Sentencing Guidelines?



     9
    As such, we necessarily reject Magluta's contention that § 2F1.1(b)(5) was designed solely to punish
"financial" fraud.
     10
     Section 2F1.1(b)(5) requires the base offense level to be raised to 12 if the base offense level is less
than 12. See U.S.S.G. § 2F1.1(b)(5). Since we affirmed the enhancement under this section, Magluta's
challenge to the § 2F1.1(b)(3)(B) enhancement is moot because that enhancement would have no effect
on Magluta's base offense level.
        (3) If the circumstance was properly taken into account, was the extent of the departure from the
        guideline range reasonable?

United States v. Gunby, 

, 1499 (11th Cir.1997). The first prong of the test is not present in this

appeal. Moreover, since the departure grounds used were based on factors suggested by the Commission,

we need not discuss the second prong of the test. We address whether the facts in this case adequately fall

under the factors listed to support the departure, and if they do, whether the amount of the departure is

reasonable.

                                                a. Section 5K2.7

        If the "defendant's conduct resulted in a significant disruption of a governmental function," § 5K2.7

allows the district court to depart from the Guidelines. The district court based the departure on the following

three reasons: first, Magluta's use of false identifications led to the disruption of the orderly process of the

court; second, at the time of the arrest, there were four outstanding warrants for him which disrupted the

administration of justice; and third, that the U.S. Marshals Service expended a tremendous amount of

resources to apprehend him.

         Magluta argues that with the exception to the latter, the district court's stated reasons are repetitive

of the reasons given for the § 2F1.1(b)(3)(B) enhancement. Moreover, he argues that his conduct did not

"disrupt governmental function" as defined under § 5K2.7. With respect to his first argument relating to

double-counting, Magluta's argument is mooted by our decision today. Since § 2F1.1(b)(3)(B) (and the

reasons given therefore) enhancement has no effect on the base offense level, we hold that even if the reasons

given for the § 2F1.1 enhancement were used again to support the upward departure, that double counting

is, at best, harmless error. That being said, we first direct our attention to whether the reasons given by the

district court can support the departure under § 5K2.7.

        Magluta's main argument with respect to this provision is that there was no "disruption" of

governmental function as defined by § 5K2.7 because the cases upholding the § 5K2.7 departure reveal two

distinct fact patterns, in neither of which this case fell. Magluta identifies that the first group of cases involve

defendants who were government employees whose crimes seriously compromised the ability of their
governmental employer to perform its appointed functions. See, e.g., United States v. Gunby, 

,

1500-03 (11th Cir.1997) (a magistrate embezzling filing fees); United States v. Baird, 

, 871 (3d

Cir.1997) (corrupt police officer). The other group of cases involve offenses of the outside actor that

significantly frustrate the normal day-to-day operations of government. See, e.g., United States v. Kramer,

, 1550 (11th Cir.1991) (a crashed helicopter on prison grounds in an unsuccessful prison escape

justified a § 5K2.7 departure); United States v. Kikumura, 

, 1117 (3d Cir.1990) (disallowing

a § 5K2.7 departure based on a defendant's intent to bomb federal buildings in order to influence policy).

Magluta argues that since the facts of this case do not fall into either category, there was no "disruption" of

a governmental function.

         The government argues that Magluta's conduct disrupted the governmental function in two ways.

First, Magluta imposed substantial costs upon the Marshal's Service which, beginning in January 1990, had

provided assistance to other law enforcement agencies. Second, Magluta undermined the ability of courts

and the criminal justice system to enforce its judgments and thereby societal order.

        Initially, we reject Magluta's contention that the facts of this case must fall into one of the two

patterns in order to support a "disruption of governmental function" departure. We find nothing in the case

law or the Sentencing Guidelines that limits the application of § 5K2.7 to just the two fact patterns. Further,

we disagree with the government's argument that Magluta's acts significantly disrupted the functions of the

Marshal's Service because one of the functions of the Marshal's Service is to track fugitives. See 28 U.S.C.

§ 566(e)(1)(B). The record does not show that the Marshal's Service was significantly disrupted by Magluta's

use of the false identification documents. The Marshals were merely carrying out their normal duties of

tracking fugitives.

        With respect to the government's second argument that Magluta undermined the ability of various

courts to enforce its judgments, we hold that the district court's finding was proper. As we noted in United

States v. Gunby, 

, 1502 (11th Cir.1997), the most basic function of the court system is to

promote the rule of law, which cannot function properly if the people lose respect for, and confidence in, the
judiciary. We conclude that it was reasonable for the district court to find Magluta's continuous disregard

for the rule of law, as evidenced by the number of outstanding warrants, coupled with his extravagant lifestyle

while a fugitive, caused people to lose confidence in the effectiveness of the judicial system and, in turn,

disrupted the orderly process of the administration of justice. Therefore, we hold that the district court did

not abuse its discretion in upward departing Magluta's base offense level.

                                       b. Application Note 9 of § 2F1.1

          As another basis for the upward departure, the district court relied on Application Note 9 of § 2F1.1,

which reads: "[d]ollar loss often does not fully capture the harmfulness and seriousness of the conduct. In

such instances, an upward departure may be warranted." Specifically, the district court found that subsection

(e) applied to Magluta's offense, which allows a departure if a defendant's conduct caused a "loss of

confidence in an important institution." The "institution" that the district court referred to was the judicial

system.

          The record shows that the district court relied on the same conduct that supported the application of

§ 5K2.7 to apply Application Note 9. Mainly, to support both grounds for upward departures, the district

court found that the "loss of confidence" in the court system resulted in a "disruption of a governmental

function." In essence, we find that the reasons given by the district court to support the departures were

extremely similar, and thus, we conclude that the district court abused its discretion in relying on the same

conduct to upward depart under § 5K2.7 and Application Note 9.

                                               c. Section 5K2.9

          The district court also found that § 5K2.9 applied, which permits a departure if the "defendant

committed the offense in order to facilitate or conceal the commission of another offense." The district court

stated, "based upon the facts and circumstances of this case, there are indications of tax evasion, possession

of a firearm by a convicted felon and of course bond jumping." Magluta argues that since the district court

did not find by a preponderance that he had committed the offense of tax evasion and felon-in-possession of

a firearm, but that there were "indications" of such conduct. Consequently, he argues, that finding is
inadequate to support the departure. Alternatively, Magluta argues that even if there was sufficient evidence

to support a finding that Magluta committed the offenses of tax evasion and felon-in-possession, the district

court erred because it made no finding that he acquired and possessed false identification documents in order

to commit those offenses. We reject both of these arguments.

         We find that the record sufficiently shows that Magluta acquired and possessed the false documents

in order to commit the offense of tax evasion, and felon-in-possession. The record reflects that Magluta did

not have a steady source of legitimate income, yet he possessed money in excess of $1.2 million, and lived

an extravagant life. In addition, he held some of these assets in a bank account opened through the use of a

false identification. Under these facts, it is reasonable to infer and find by a preponderance that Magluta

acquired false identifications to facilitate his hiding of assets from the government—mainly, the Internal

Revenue Service. Moreover, with regard to the felon-in-possession charge, Magluta used one of his aliases,

Angelo Maretto, to purchase a firearm. This is strong circumstantial evidence that Magluta obtained the false

identification to illegally purchase the firearm, because he knew he could not purchase a firearm in his own

name. Based on these pieces of evidence, we conclude that the district court correctly found that Magluta

committed the offense to facilitate the crime of tax evasion and felon-in-possession of a firearm, and that he

possessed the false identifications to facilitate the commission of those crimes. Accordingly, we find no

abuse of discretion in the district court's reliance of § 5K2.9 as a departure ground.

        In sum, we find that the reasons given by the district court in support of the departure satisfies the

first two prongs of the Gunby test. Magluta's base offense level does not adequately take into consideration

the aggravating circumstances stated by the district court. Per the third prong of the test—whether the extent

of the departure is reasonable—we must remand. Since we found that one of the grounds relied on by the

district court constituted double counting, we must remand for a determination by the district court of whether

a six-level departure can be reasonably supported by just the two factors in § 5K2.7 and § 5K2.9.

4.      Criminal history category departure in the false identification case
        The district court raised Magluta's criminal history category from III to VI in the false identifications

case. Magluta argues that the court erred in departing because it relied on impermissible grounds. We review

the district court's decision to depart for abuse of discretion. See 

, 116 S.Ct. at 2046;

United States v. Hoffer, 

, 1199 (11th Cir.1997).

        Section 4A1.3 allows the sentencing court to upward depart on the criminal history category "[i]f

reliable information indicates that the criminal history category does not adequately reflect the seriousness

of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." In

addition, § 4A1.3 provides some non-exhaustive list of examples which demonstrate possible bases of

departure, such as "whether defendant was pending trial or sentencing on another charge at the time of the

instant offense." U.S.S.G. § 4A1.3(d).

        The record reflects that the district court based the upper departure on three grounds: first, Magluta's

fugitive status as a result of pending charges in California and Florida; second, the likelihood of recidivism

"based upon the facts and circumstances of this case;" and third, the fact that Magluta used false identification

after he absconded himself from the trial. The district court chose the criminal history category of VI because

"it is the criminal history category which adequately reflects the defendant's conduct, taking into

consideration the number of charges that were pending against him during the offense and the likelihood of

recidivism."

        Magluta argues that the reasons given by the district court cannot support departure in the false

identifications case because they relate to acts that were contemporaneous with, if not part of, the underlying

offense. See United States v. Ledesma, 

, 821 (11th Cir.1992) ("[T]he criminal history category

depends on the defendant's conduct prior to, rather than contemporaneous with, the offense of conviction.")

In other words, he argues that a § 4A1.3 departure can only be based on conduct that occurred prior to the

current offense.

         Magluta also argues that since the district court already considered the previous pending charges as

relevant conduct in calculating the base offense level, they were part of the offense in this case, and thus, they
too could not be used as a basis of criminal history departure. See United States v. Adudu, 

, 824

(11th Cir.1993) ("if the criminal acts were 'part of ... the same course of conduct or common scheme or plan

as the offense of conviction,' then, as a matter of law, it was an impermissible ground upon which to base a

criminal history departure.") (quoting United States v. Jones, 

, 737 n. 11 (D.C.Cir.1991)). The

government does not directly dispute Magluta's contentions, but rather argues that the district court did not

abuse its discretion by departing because it also relied on Magluta's post-flight conduct of acquiring more

false identification to determine the risk of recidivism. The government relies on United States v. Fayette,

(11th Cir.1990) for the proposition that Magluta's acts of gathering more false identifications

further supports the risk of recidivism, and in turn, supports the criminal history departure. We agree.

        In Fayette, we held that § 4A1.3 was the appropriate mechanism, as opposed to an unguided § 5K2.0

departure, for factoring a defendant's post-plea offenses to the defendant's sentence. See 

. While reaching this conclusion, we suggested that the timing of the offenses was insignificant with

respect to a § 4A1.3 departure, and considered that such post-plea conduct under § 4A1.3 as a basis for a

departure was consistent with the "individual deterrence" objective of the Guidelines. See 

reject Magluta's argument that only the conduct that occurred prior to the offense can be considered for the

purposes of § 4A1.3 departure; all conduct that occurred prior to sentencing, that was not already considered

as part of the offense of conviction, can be considered in determining the risk of recidivism, and in turn, can

support a criminal history category departure.11

         In the case at bar, the district court relied, in part, on Magluta obtaining and using more false

identifications after he jumped bond to support the departure. That conduct was not part of the offense of

conviction, nor was it considered as relevant conduct in calculating the base offense level. Since Magluta

was convicted of possessing and using false identification documents, his post-conviction, pre-sentence

procurement of more false identifications shows that there was a likelihood of recidivism. We find no error


   11
     Our holding today does not conflict with the Adudu case. In Adudu we merely held that conduct that
is part of the offense cannot be a basis for a criminal history departure. See Adudu, 

, 823.
Nothing in Adudu prevents the district court from considering post-conviction, pre-sentencing conduct
when making a criminal history category departure.
in the district court's finding in that respect. However, we do find that the other two grounds the district court

stated—the pending cases against Magluta, and the risk of recidivism stemming therefrom—were already

factored into the calculation of Magluta's base offense level through the relevant conduct provisions. 

.

          Having so decided, we must remand the case for a determination regarding the propriety of the

three-level departure. On remand, the district court should make a determination as to how much departure

is appropriate when considering only the conduct that was not part of the offense of conviction.

C.        Sentencing in the bond jumping case

1.        Whether the district court properly imposed consecutive sentences

          After the consolidated sentencing hearing, the district court imposed a separate sentence for the bond

jumping case to run consecutively to the false identification case. In his reply brief, Magluta conclusively

argues for the first time that under Application Note 3 of § 2J1.6,12 the district court was required to treat his

bond jump solely as a two-level upward adjustment for obstruction of justice in the false identification case,

and not as a separate case for sentencing purposes.

          This Court "consider[s] sentence objections raised for the first time on appeal under the plain error

doctrine to avoid manifest injustice." United States v. Hansley, 

, 715 (11th Cir.1995) (quoting

United States v. Newsome, 

, 1579 (11th Cir.1993)). For the Court to correct plain error: (1)

there must be error; (2) the error must be plain; and (3) the error must affect substantial rights. See United

States v. Vazquez, 

, 1221 (11th Cir.1995); see also United States v. Olano, 

, 731-

35, 

, 1776-77, 

(1993). In addition, the error must "seriously affect the

fairness, integrity, or public reputation of a judicial proceeding." United States v. Humphrey, 

,

588 n. 3 (11th Cir.1999) (citing 

, 

.)

          Application Note 3 of § 2J1.6 states in part: "[I]n the case of a conviction on both the underlying

offense and the failure to appear, the failure to appear is treated under § 3C1.1 (obstructing or impeding the


     12
    The district court used the 1997 version of the Sentencing Guidelines to calculate Magluta's base
offense level in the bond jumping case.
Administration of Justice) as an obstruction of the underlying offense; and the failure to account and the

count(s) for the underlying offenses are grouped together under § 3D1.2(c)." Based on this language,

Magluta argues that the district court should have only imposed a § 3C1.1 enhancement to the false

identification case for his bond jump instead of performing a separate calculation for the bond jumping case.

In contrast, the government argues that Application Note 3 should not apply because it conflicts with the

statutory language in the failure to appear statute, 18 U.S.C. § 3146(b), which mandates that, "[a] term of

imprisonment imposed pursuant to this section shall be consecutive to the sentence of imprisonment for any

other offense."13 The government argues that since the Guideline's grouping rule conflicts with the statutory

language and cannot be reconciled with the statutory mandate of a consecutive sentence, the Sentencing

Guideline should not be followed. See, e.g., United States v. Packer, 

, 359 (5th Cir.1995) ("The

[G]uideline treatment of section 3146(b)(2) would defeat the statutory intent that a failure to appear offense

be considered separate and distinct from the underlying offense, warranting a separate and distinct penalty.")

          We agree with Magluta that the district court may have committed an error by not following the

application note to § 2J1.6. However, there is no need for us to address whether the Guideline does conflict

with the statutory language, because we cannot find that the district court committed an error that is "plain."

As we have explained in Humphrey, a district court's error is not "plain" or "obvious" if there is no precedent

directly resolving a issue. See 

. We find nothing in our case law that directly

deals with the potential conflict between the Guidelines and the failure to appear statute. At the worst, we

find that there is at least room for doubt as to whether the Guideline's sentencing approach conflicts with the

statutory mandate of the statute. As such, we find that the district court's decision to calculate separate base

offense levels in both the false identification case and the bond jumping case, and to impose a consecutive

sentence is not an error that is "plain." Thus, we reject Magluta's argument.

2.        Enhancement under § 2J1.6(b)(2)



     13
     In Stinson v. United States, 

, 

, 

(1993), the Supreme Court
held that the Guideline commentary is authoritative unless it conflicts with the Constitution or an
applicable statute.
           Above argument notwithstanding, Magluta argues that the district court erroneously enhanced his

base offense level by three levels. Under § 2J1.6, a defendant's adjusted base offense level is based on the

statutory maximum sentence for "the underlying offense" on which he failed to appear. U.S.S.G. § 2J1.6

assigns a base level of six, and then directs that offense level be increased by six levels if the "underlying

offense" is punishable by five or more, but less than 15 years, or by nine levels if the "underlying offense"

is punishable by a term of 15 years or more. See U.S.S.G. § 2J1.6(b)(2) (1997).

           The district court enhanced Magluta's offense level by nine levels under § 2J1.6(b)(2)(A), concluding

that "the underlying offense" on which Magluta jumped bond carried a statutory maximum sentence of 50

years, the aggregate of the five year statutory maximum on each of the ten counts of the indictment. Magluta

argues that the district court should have interpreted the terms "underlying offense" to only include the most

serious of the ten counts, and use it to calculate the appropriate amount of enhancement. In other words,

under Magluta's interpretation of the "underlying offense," the maximum sentence that should be used to

calculate the enhancement should be five years.

           In support of his position, Magluta relies on United States v. Iddeen, 

(5th Cir.1988). In

Iddeen, a pre-guidelines case, Iddeen was convicted of ten counts of mail fraud, which carried a five year

maximum on each count, and was released on bond pending sentencing. See 

Iddeen jumped bond,

but was later captured and convicted for failure to appear in violation of 18 U.S.C. § 3146. In formulating

a sentence under the failure to appear statute, the district court aggregated maximum sentences in the ten

counts of mail fraud and sentenced Iddeen to ten years of imprisonment under § 3146(b)(1)(A), which was

to run consecutive to the forty years he received for the mail fraud convictions. See 

Circuit

remanded, holding that the terms "an offense punishable by" used in § 314614 means the maximum


   14
        18 U.S.C. § 3146 proscribes punishment for violations as follows:

           (b) Punishment.—(1) The punishment for an offense under this section is—

                   (A) if the person was released in connection with a charge of, or while awaiting sentence,
           ...

                   (i) an offense punishable by death, life imprisonment, or imprisonment for a term of 15
punishment of one offense, out of all the counts in the indictment, and not the aggregate of all offenses

charged. See 

        The government first argues that the district court correctly interpreted the terms "the underlying

offense" to encompass the aggregation of all the counts in the complaint because aggregating the sentences

best fulfills the objective of providing greater deterrence to defendants who are facing longer prison terms,

as opposed to a defendant who only faces a light sentence. Second, the government argues that under the

plain language, the phrase "the underlying offense" within § 2J1.6(a) reflects the Commission's intent to reach

the full scope of penalties that a bond jumping defendant seeks to escape. Under its view, the government

suggests that the use of the definite article "the" to modify "underlying offense" distinguishes § 2J1.6 from

the statutory language relied on by the Iddeen court, and that in light of vast number of federal indictments

being multi-count indictments, " § 2J1.6(b)(2) necessarily considers the multiple counts of an indictment as

part of the same 'underlying offense.' " We disagree with the government.

        First, we believe that the operative word to focus on is the word "offense," as opposed to "offenses,"

and not on the articles "the" or "an." With the proper focus, we find no ambiguity in the words "the

underlying offense." The terms describe one offense, and nothing more. If we were to adopt the

government's argument, we would be giving a plural meaning to the otherwise plain, singular meaning of the

word "offense." We find nothing in the Guidelines or the case law which suggests that Commission really

meant the plural when it used the singular term "offense."

        If the Commission wanted "the underlying offense" to mean the aggregate of all the counts, it could

have removed all doubt by using the plural form of the word offense, "offenses." This logic is even more

probative of the Commission's intent when viewed in the fact that the Commission should have been aware

of the holding in Iddeen—a pre-guideline case—when it promulgated subsequent revisions to the Guidelines.


        years or more, a fine under this title or imprisonment for not more than ten years, or both;

                  (ii) an offense punishable by imprisonment for a term of five years or more, a fine under
        this title or imprisonment for not more than five years, or both[.]

        18 U.S.C. § 3146.
         Thus, we carry over the reasoning in Iddeen to the Guidelines, and hold that the terms "the

underlying offense" refers to the one count in the indictment—the most serious of the counts referred to in

the indictment—and not the aggregate of all the maximum penalties in the counts under § 2J1.6. Accordingly,

we hold that the district court erred in enhancing Magluta's base offense level in the bond jumping case by

nine levels.

3.      Obstruction enhancement under § 3C1.1

        The district court imposed a two level obstruction of justice enhancement to Magluta's base offense

level under § 3C1.1, reasoning that the enhancement was "appropriate under the facts and circumstances of

this case based on the documents that were found on the defendant at the time of his arrest and the additional

fraudulent identifications and the use of those identifications...." Section 3C1.1 provides for a two level

increase in the offense level if the defendant "willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice during the investigation, prosecution, or sentencing of the instant

offense." U.S.S.G. § 3C1.1 (1997). However, for failure to appear offenses and other offenses covered under

§ 2J1.6, the Commission instructs that the obstruction enhancement "does not apply, unless the defendant

obstructed the investigation or trial of the failure to appear count." U.S.S.G. § 2J1.6 comment. (n.2). We

review the district court's factual findings of obstruction of justice for clear error, and its legal conclusions

de novo. See United States v. Arguedas, 

, 1059 (11th Cir.1996).

        Magluta argues that the enhancement was improper because the reasons on which the district court

relied to support the enhancement were already taken into consideration in formulating the applicable

guideline, and that he did not obstruct the investigation or trial of his bond jump. With regard to his first

argument, Magluta relies on United States v. Sarna, 

(7th Cir.1994). In Sarna, the Seventh

Circuit, in the context of a guideline departure, opined that fleeing the jurisdiction, traveling, working under

assumed names, and evading law enforcement officials were types of conduct that "commonly inhere in the

offense of failure to appear," and thus, such conduct could not be a basis for a departure from the Guidelines.

. Similarly, Magluta argues that his post-flight conduct—hiding from law enforcement
authorities by using false identification—was already factored into his base offense level because such

conduct is inherent in the crime of failure to appear. We reject this argument.

          Magluta oversimplifies his post-flight conduct. Even if we were to agree with the Sarna court and

hold that certain typical post-flight conduct is inherent in the crime of failure to appear, we cannot say that

Magluta's conduct falls within that category.15 Unlike the defendant in Sarna, Magluta was not merely

working under assumed names or avoiding law enforcement officials by his own conduct. As noted before,

the district court based the enhancement on the documents found on Magluta at the time of his arrest. These

documents evidenced Magluta directing his family and friends to assist him in remaining at large by assessing

a large amount of cash, erasing his asset trail, and instructing his son regarding the son's grand jury testimony.

          Based on these pieces of evidence, the district court could have easily found that Magluta obstructed

justice when law enforcement officials were attempting to apprehend Magluta. We do not find that Magluta's

conduct of enlisting his friends and family members to help him remain a fugitive is the type of conduct that

is "inherent" in the offense of failure to appear. Quite the contrary, we find that such conduct is classic

obstructive conduct.

          Accordingly, we find no error in the district court's decision to enhance Magluta's base offense level

for obstructing justice.

4.        Criminal history category departure in the bond jumping case

          Magluta argues that the district court erroneously departed upward on his criminal history category

in the bond jumping case because the bases which the district court used to depart were already used in

departing in the false identifications case. We review the district court's decision to depart under the abuse

of discretion standard. See 

.

          Contrary to Magluta's argument, we do not find that the district court relied on identical facts to

support a risk of recidivism finding in both cases. The record shows that while granting the government's

motion for an upward departure in the bond jump case, the district court relied on the risk of recidivism as


     15
    We express no opinion with regard to whether fleeing the jurisdiction, working under aliases and
evading law enforcement officials are types of conduct that are inherent in the crime of failure to appear.
suggested by Magluta's past and present bond jumps. In making a criminal history category departure in the

false identification case, however, the district court relied on the risk of recidivism, as shown partly by

Magluta's post-flight conduct of obtaining more false identifications, to support a criminal history departure.

        The crimes to which the particular recidivism risk applies are different: in the bond jump case, the

risk of recidivism relates to the chance that Magluta will jump bond in the future. In the false identification

case, the recidivism risk relates to the chance that Magluta will possess and/or use more false identifications

in the future. Due to this critical distinction, we conclude that the district court relied on different factual

bases while departing from Magluta's criminal history category. More importantly, we do not find that the

district court abused its discretion while departing upward.

D.      Consecutive supervised release

         The district court also imposed a three year supervised release in both cases to be served

consecutively. As Magluta and the government correctly point out, "any term of supervised release imposed

is to run concurrently with any other term of supervised release imposed." See 18 U.S.C. § 3624(e) ("The

term of supervised release commences on the day the person is released from imprisonment and runs

concurrently with any Federal, State, or local term of probation or supervised release or parole for another

offense to which the person is subject or becomes subject during the term of supervised release"); U.S.S.G.

§ 5G1.2 comment. Accordingly, we vacate the sentence of consecutive term of supervised release and

remand for re-sentencing.

                                             V. CONCLUSION

        We affirm the conviction in the false identification case. However, we must vacate the sentences

entered in both cases, and remand for re-sentencing.

        In the false identification case, the district court should address on remand whether the six-level

upward departure in the base offense level can be supported by the factors listed in § 5K2.7 and 2.9.

Similarly, the district court should also determine whether the three-level upward criminal history departure

can be supported based on Magluta's acts that were not part of his "offense" as defined in the Guidelines.
        In the bond jumping case, Magluta's adjusted base offense level must be recalculated by only

enhancing the base offense level by six levels, and not nine.

        Lastly, the sentence of consecutive supervised release is vacated. The supervised release should run

concurrently as directed by the Guidelines.

        AFFIRMED in part, VACATED and REMANDED in part.