United States v. Roberto Lara , 472 F. App'x 247 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4901
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERTO LARA, a/k/a Roberto Lopez,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Solomon Blatt, Jr., Senior
District Judge. (9:08-cr-01224-SB-2)
Submitted: March 19, 2012 Decided: April 2, 2012
Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher L. Murphy, STUCKEY LAW OFFICES, LLC, Charleston,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Sean Kittrell, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roberto Lara pled guilty without benefit of a plea
agreement to conspiracy to possess more than 500 grams of
cocaine with intent to distribute, 21 U.S.C. § 846 (2006), and
was sentenced to a term of 108 months’ imprisonment. Lara
appeals his sentence, contending that the district court erred
in making an adjustment for obstruction of justice, U.S.
Sentencing Guidelines Manual § 3C1.1 (2010). We affirm.
A two-level enhancement applies “[i]f (A) the
defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect
to the investigation, prosecution, or sentencing of the instant
offense of conviction, and (B) the obstructive conduct related
to (i) the defendant’s offense of conviction and any relevant
conduct; or (ii) a closely related offense.” USSG § 3C1.1.
Obstructive conduct includes “willfully failing to appear, as
ordered, for a judicial proceeding.” USSG § 3C1.1 cmt. n.4(E).
It does not include “avoiding or fleeing from arrest.” Id. cmt.
n.5(D).
Lara was arrested by South Carolina law enforcement
officers in February 2008 and charged with cocaine trafficking,
but released on bond. Based on the same conduct, he was later
indicted on a federal charge of conspiring to possess cocaine
with intent to distribute. Although an arrest warrant was
2
issued with the indictment, Lara’s attorney negotiated an
agreement by which Lara would be permitted to surrender
voluntarily. Instead of surrendering, Lara fled South Carolina.
His wife informed the federal agent in charge that Lara didn’t
trust the government, thought he would get too long a sentence,
and failed to appear for that reason. Subsequently she also
disappeared with their children.
After several months, federal marshals located Lara’s
likely residence in Los Angeles and attempted to arrest a man
outside the house who proved not to be him. The next day,
Lara’s wife consented to a search of the house. It contained no
evidence that an adult male was living there. However, one of
the young children pointed out the bed where his father slept.
Lara’s wife then cooperated and took the deputies to a
construction business where she had taken Lara the night before,
after the attempted arrest. The manager directed them to a job
site where Lara was working. After a forty-minute search, Lara
was located hiding in a ventilation shaft. He gave a false
name, but was positively identified by his distinctive tattoos.
Lara contested his detention, asserting that he did
not know he was wanted when he left South Carolina; he sought to
be released and allowed to travel to South Carolina on his own
to self-report there. Because the district court judge in
California seemed inclined to release Lara, a federal agent
3
traveled to California to testify at the detention hearing,
after which Lara was detained and returned to South Carolina.
At his sentencing hearing, the federal agent testified
and the government introduced emails to the agent from Lara’s
former attorney stating that he had discussed the arraignment
with Lara. Defense counsel argued that the evidence did not
establish that Lara knew about his attorney’s agreement for his
self-surrender. He argued that his conduct amounted to fleeing
from arrest, which usually does not constitute obstruction of
justice. See USSG § 3C1.1 cmt. n.5(D). The district court
determined that Lara knew of the agreement that he would self-
surrender, willfully failed to appear, and subsequently engaged
in further conduct intended to obstruct his prosecution.
On appeal, Lara acknowledges the distinction
recognized in United States v. Gonzalez, 608 F.3d 1001 (7th Cir.
2010), cert. denied, 131 S. Ct. 952 (2011), between “panicked”
or “instinctual” flight “in the immediate after-math of a
crime,” and “calculated evasion” or “a deliberate pre-or-post-
arrest attempt to frustrate or impede an ongoing criminal
investigation.” 608 F.3d at 1007 (internal quotations and
citation omitted). However, he argues that he did nothing more
than flee to avoid arrest, that his wife’s conduct in removing
all signs of his presence from the house in Los Angeles should
not be attributed to him, and that concealing himself in the
4
ventilation shaft was a panicked, spur-of-the-moment attempt to
avoid arrest.
While mere flight may not trigger the § 3C1.1
adjustment, flight in circumstances that indicate deliberately
obstructive conduct warrants it. See, e.g. United States v.
Curb, 626 F.3d 921, 928 (7th Cir. 2010) (defendant who willfully
failed to appear for sentencing and evaded capture for more than
two months obstructed justice); United States v. Reeves, 586
F.3d 20, 23-24 (D.C. Cir. 2009) (defendant who willfully failed
to appear at arraignment and remained a fugitive for eleven
months obstructed justice); United States v. Dunham, 295 F.3d
605, 609 (6th Cir. 2002) (defendant who provided no adequate
reason for his failure to appear in response to grand jury
subpoena obstructed justice).
Here, the district court did not clearly err in
finding as a fact that, when Lara fled South Carolina, he knew
he had been indicted, an arrest warrant had been issued, and his
attorney had arranged for him to surrender himself voluntarily.
Lara’s failure to surrender, his flight to California, and his
attempts to evade capture when he was located there by federal
marshals all constituted conduct intended to thwart his
prosecution, rather than instinctive flight from arrest at the
scene of a crime. Consequently, we conclude that the district
court did not err in finding that Lara obstructed justice.
5
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
6