United States v. James K. Thomas ( 1995 )

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No. 95-2831
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
James Kenneth Thomas, also known * Western District of Missouri.
as Jim Autry, *
* [PUBLISHED]
Appellant. *
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Submitted: December 12, 1995
Filed: December 27, 1995
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Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
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PER CURIAM.
James Kenneth Thomas appeals the sentence imposed by the district
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court following his guilty plea to conspiracy to distribute marijuana, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm.
After pleading guilty and being released on bond, Thomas tested
positive for various controlled substances. Thomas later absconded for
approximately three months. After he was re-arrested, Thomas admitted he
had used marijuana while out on bond. At sentencing, the district court
overruled Thomas's objections to an obstruction-of-justice enhancement and
denied him an acceptance-of-responsibility reduction. The court sentenced
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The Honorable Russell G. Clark, United States District Judge
for the Western District of Missouri.
Thomas to the 60-month statutory maximum term of imprisonment, which was
below Thomas's Guidelines sentencing range of 63 to 78 months imprisonment.
Thomas first argues the district court erred by assessing an
obstruction-of-justice enhancement under U.S.S.G. § 3C1.1. We review de
novo whether section 3C1.1 applies to Thomas's specific conduct. See
United States v. Sykes, 4 F.3d 697, 699 (8th Cir. 1993) (per curiam).
Because Thomas absconded from supervision, we conclude the district court
properly assessed the obstruction-of-justice enhancement. See United
States v. Shinder, 8 F.3d 633, 635 (8th Cir. 1993) (holding § 3C1.1
enhancement proper where defendant fled to California after conviction and
prior to sentencing); United States v. Lyon, 959 F.2d 701, 707 (8th Cir.
1992) (holding § 3C1.1 enhancement proper where defendant fled
jurisdiction, became fugitive, and used alias); cf. U.S.S.G. § 3C1.1,
comment. (n.3(e)) (1992) (example of conduct to which § 3C1.1 enhancement
applies is when defendant escapes from custody before sentencing).
Next, Thomas argues the district court erred by denying him an
acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1. Given
Thomas's continued drug use, we conclude the district court did not clearly
err by denying him the reduction. See United States v. Evans, 51 F.3d 764,
766 (8th Cir. 1995) (standard of review): United States v. Poplawski, 46
F.3d 42, 42-43 (8th Cir.) (no error in denying reduction for acceptance of
responsibility when defendant, while free on bond, continued use of drug
related to instant conspiracy offense), cert. denied, 115 S. Ct. 2261(1995); United States v. Wivell, 893 F.2d 156, 159 (8th Cir. 1990) (same).
Finally, we reject Thomas's argument that the district court erred
by not granting him a downward departure under U.S.S.G. §§ 5K1.1, p.s. or
5K2.0, p.s. Absent a government motion, the district court lacked the
authority to grant Thomas a section 5K1.1
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departure. See Wade v. United States, 112 S. Ct. 1840, 1843-44 (1992).
The district court also lacked the authority to depart under section 5K2.0
on the basis of substantial assistance. See United States v. Baker, 4 F.3d
622, 624 (8th Cir. 1993).
Accordingly, the judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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