United States v. Hernandez-Olivares , 21 F. App'x 807 ( 2001 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    OCT 11 2001
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                    No. 01-6090
    (D.C. No. 98-CR-176-T)
    JOSE RAMON HERNANDEZ-                                 (W.D. Okla.)
    OLIVARES,
    Defendant-Appellant.
    ORDER AND JUDGMENT            *
    Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and         BRORBY , Senior
    Circuit Judge.
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument.
    *
    This order and judgment is not binding precedent, except under the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.
    The defendant challenges the sentence imposed following his plea of guilty
    to two counts of distribution of methamphetamine. He contends that the district
    court erred by failing to apply the safety-valve reduction set forth in USSG §
    2D1.1(b)(6), by enhancing the sentence for obstruction of justice and denying a
    reduction for acceptance of responsibility, and by departing upward in criminal
    history. We affirm.
    The defendant was originally arrested pursuant to a complaint filed on
    September 25, 1998. He was released on an unsecured bond on condition that he
    participate in a 30-day in-patient treatment program. He was admitted to such a
    program on October 1. However, three days later he left the facility without
    permission and absconded from supervision. He remained a fugitive until August
    2000, when he was arrested by state authorities on a new charge of possession of
    a controlled dangerous substance. He was subsequently returned to federal
    authorities, and charged in a superseding indictment with two counts of
    distributing a specific quantity of methamphetamine to which he pled guilty.
    The presentence report recommended that, because the defendant had
    absconded, a two-level enhancement be imposed for obstruction of justice and a
    reduction for acceptance of responsibility be denied. The report also
    recommended that the district court depart upward as the defendant’s criminal
    history category of I under-represented his criminal activities. The defendant
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    objected to the recommendation that an adjustment be made for obstruction of
    justice and that he be denied a downward adjustment for acceptance of
    responsibility. He also argued that he should receive the benefit of the safety-
    valve provision under USSG § 2D1.1(b)(6) (cross-referencing USSG § 5C1.2).
    The government did not object to the report, but did file a motion for an upward
    departure, contending that the defendant’s criminal history category did not
    reflect the seriousness of his past criminal conduct or the likelihood that the he
    will commit other crimes. The district court overruled the defendant’s objections
    and granted the government’s motion.
    The defendant first contends that the district court erred in denying him a
    2-point decrease in base offense level under § 2D1.1(b)(6). The defendant has the
    burden of demonstrating that he qualifies for this decrease.   United States v.
    Patron-Montano , 
    223 F.3d 1184
    , 1189 (10th Cir. 2000). The defendant can
    satisfy this burden by demonstrating, by a preponderance of the evidence, that he
    meets the criteria set forth in § 5C1.2.   Id. The only disputed requirement in this
    case is the one which obligates a defendant “not later than the time of the
    sentencing hearing, ... [to] truthfully provide[] to the Government all information
    and evidence the defendant has concerning the offense or offenses that were part
    of the same course of conduct or of a common scheme or plan ....”
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    Here the defendant alleges that he was willing to provide information to the
    government, but that the government did not ask him for any. The government
    does not bear the burden of seeking out information from the defendant.      See
    United States v. Ramirez , 
    94 F.3d 1095
    , 1101 (7th Cir. 1996). “Rather, the
    burden is on the defendant to come forward and to supply the government with
    full and truthful information.”   
    Id.
     Accordingly, the district court did not err in
    refusing to grant the defendant a decrease under § 2D1.1(b)(6).
    The defendant next argues that the district court erred by enhancing the
    sentence for obstruction of justice and denying a reduction for acceptance of
    responsibility. The district court concluded that because the defendant had
    absconded while under pre-trial release it was appropriate to enhance his sentence
    for obstruction of justice. The defendant contends that merely walking away from
    a drug treatment center and never voluntarily returning to court does not rise to
    the level of obstruction of justice. Because the defendant’s argument does not
    challenge the district court’s factual findings, we review the court’s legal
    conclusions de novo . United States v. Hankins , 
    127 F.3d 932
    , 934 (10th Cir.
    1997).
    Section 3C1.1 provides that ‘[i]f the defendant willfully obstructed or
    impeded, or attempted to obstruct or impede, the administration of justice,” then a
    two level increase in the offense is warranted. Obstruction of justice includes
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    “escaping or attempting to escape from custody before trial or sentencing; or
    willfully failing to appear, as ordered, for a judicial proceeding.”   See USSG §
    3C1.1, comment. (n.4(e)). Walking away from a drug treatment facility, where
    the defendant was ordered to reside as a condition of his pre-trial release, falls
    within these examples. His escape from the court-imposed restrictions constituted
    an obstruction of justice.   See United States v. Swanson , 
    253 F.3d 1220
    , 1224
    (10th Cir. 2001), petition for cert. filed   (U.S. Sept. 17, 2001) (No. 01-6394)
    (holding that escape from a halfway house is escape from custody for purposes of
    § 3C1.1).
    In a related argument, the defendant argues that the district court erred in
    not granting him a reduction in his base offense level for acceptance of
    responsibility. The obstruction enhancement and the acceptance of responsibility
    reduction are intertwined.    See United States v. Amos , 
    984 F.2d 1067
    , 1073 (10th
    Cir. 1993). “Conduct resulting in an enhancement [for obstruction of justice]
    ordinarily indicates that the defendant has not accepted responsibility for his
    criminal conduct.” USSG § 3E1.1, comment. (n.4). Nevertheless, the defendant
    contends that the district court should have considered the acceptance of
    responsibility independently of the obstruction of justice enhancement in light of
    the fact that he left the drug treatment facility two years before he pled guilty.
    While we recognize that there may be “extraordinary cases in which adjustments
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    under both §§ 3C1.1 and 3E1.1 may apply,” USSG § 3E1.1, comment. (n.4),
    “[t]rue acceptance of responsibility for a crime includes acceptance of whatever
    justice society deems proper in response.”         Swanson , 
    253 F.3d at 1225
    . Walking
    away from a court-imposed condition and continuing to participate in criminal
    behavior do not indicate acceptance of responsibility.
    The defendant’s final argument is that the district court erred in departing
    upward from category I to category III. The district court based its departure on
    the facts that at the time the defendant committed the instant offense there were
    two state charges pending against him, a firearms charge and a drug charge, that
    he had absconded from bond, and that he was subsequently arrested for yet
    another drug offense. Applying an abuse of discretion standard,        Koon v. United
    States , 
    518 U.S. 81
    , 91 (1996), we see no error in the court’s determination that
    an upward departure was warranted.
    The judgment of the United States District Court for the Western District of
    Oklahoma is AFFIRMED .
    Entered for the Court
    Bobby R. Baldock
    Circuit Judge
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