United States v. Hilario Avila ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 99-1124SI
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United States of America, *
* On Appeal from the United
Appellee, * States District Court
* for the Southern District
v. * of Iowa.
*
Hilario Avila, * [Not To Be Published]
*
Appellant. *
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Submitted: January 4, 2000
Filed: January 25, 2000
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Before RICHARD S. ARNOLD, FLOYD R. GIBSON, and HANSEN, Circuit Judges.
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PER CURIAM.
Hilario Avila appeals from the final judgment of the District Court1 after he
pleaded guilty to a one-count indictment for possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a). On appeal, counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), suggesting the District Court
1
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
erred in not granting Avila a downward departure, and in imposing a 2-level
obstruction-of-justice enhancement.
We conclude the District Court’s refusal to depart downward is unreviewable,
because its statements, taken as a whole, indicate it was aware of its authority to depart
downward and it exercised its discretion not to do so. See United States v. Knight, 96
F.3d 307, 311 (8th Cir. 1996). We further conclude the District Court did not err in
imposing a 2-level sentencing enhancement for obstruction of justice, because Avila’s
fear for his safety does not excuse the fact that he eluded authorities for over a year.
See U. S. Sentencing Guidelines Manual § 3C1.1 (1998); United States v. Taylor, 997
F.2d 1551, 1559-60 (D.C. Cir. 1993); United States v. Lyon, 959 F.2d 701, 707 (8th
Cir. 1992).
In accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we have reviewed
the record for any nonfrivolous issues and have found none. We grant counsel’s
motion to withdraw.
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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