United States v. Jeffrey B. Martinez ( 2000 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    _____________
    No. 00-1653MN
    _____________
    United States of America,                *
    *
    Appellee,                   * On Appeal from the United States
    * District Court for the
    v.                                 * District of Minnesota.
    *
    Jeffrey Brian Martinez,                  * [To Be Published]
    *
    Appellant.                  *
    ___________
    Submitted: November 29, 2000
    Filed: December 12, 2000
    ___________
    Before RICHARD S. ARNOLD, HANSEN, and BYE, Circuit Judges.
    ___________
    PER CURIAM.
    Jeffrey Brian Martinez pleaded guilty to conspiring to commit bank larceny from
    automatic teller machines (ATMs), in violation of 
    18 U.S.C. §§ 371
     and 2113(b), and
    bank larceny from an ATM, in violation of 
    18 U.S.C. §§ 2
     and 2113(b). The
    presentence report recommended assessing an obstruction-of-justice enhancement and
    denying an acceptance-of-responsibility reduction, because, although Martinez had
    been cooperative throughout the interview process, he subsequently failed alcohol and
    drug tests while under court-ordered supervision at a halfway house, he absconded
    from the halfway house prior to a bond-revocation hearing, and he failed to appear for
    the hearing. Over his objection at sentencing, the District Court1 denied a reduction for
    acceptance of responsibility and applied an enhancement for obstruction of justice.
    Martinez was sentenced to concurrent prison terms of 5 years and 5 years 11 months,
    plus 3 years supervised release. He appeals, arguing the Court erred as to the
    enhancement and reduction, because they were based on the same misconduct and
    were not directly linked to the ATM offenses. He also contends the Court erred by not
    analyzing his case to determine whether it was “extraordinary.”
    We review for clear error the District Court’s findings with respect to the
    obstruction-of-justice enhancement and the acceptance-of-responsibility reduction. See
    United States v. Baker, 
    200 F.3d 558
    , 562 (8th Cir. 2000) (standard of review for
    enhancement); United States v. Ervasti, 
    201 F.3d 1029
    , 1043 (8th Cir. 2000) (standard
    of review for reduction). Having done so, we find no error in light of Martinez’s pre-
    sentencing misbehavior. See U.S.S.G. § 3C1.1, comment. (n.4(e)) (obstruction
    enhancement applies to escaping from custody before sentencing, and willful failure to
    appear for judicial proceeding); U.S.S.G. § 3E1.1, comment. (n.4) (conduct supporting
    obstruction enhancement ordinarily indicates defendant should not receive acceptance
    reduction; however, in “extraordinary cases . . . adjustments under both §§ 3C1.1 and
    3E1.1 may apply”); United States v. Honken, 
    184 F.3d 961
    , 968, 970 (8th Cir.) (burden
    is on defendant to establish entitlement to acceptance reduction; committing obstructive
    conduct between plea and sentencing “would almost certainly” disqualify defendant
    from receiving such reduction), cert. denied, 
    120 S. Ct. 602
     (1999); United States v.
    Byrd, 
    76 F.3d 194
    , 197 (8th Cir. 1996) (§ 3E1.1 does not preclude sentencing judge,
    in exercise of discretion, from considering unlawful conduct unrelated to offense of
    conviction in determining whether defendant qualifies for acceptance reduction); United
    States v. Shinder, 
    8 F.3d 633
    , 635 (8th Cir. 1993) (defendant’s flight prior to
    1
    The Honorable James M. Rosenbaum, United States District Judge for the
    District of Minnesota.
    -2-
    sentencing was “sufficient ground” both to apply obstruction enhancement and to deny
    acceptance reduction).
    Accordingly, we affirm.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -3-