United States v. Hurd

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS FEB 17 1999
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-7072
v.
(D.C. No. 97-CR-9-S)
(E. D. Okla.)
RANDY LEE HURD,
aka Randy Hurd,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.
Randy Lee Hurd was arrested after delivering approximately ten pounds of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
methamphetamine and was charged in an eight-count indictment with numerous
federal drug violations. He entered into a plea bargain under which he pled guilty
to one count of possession with intent to distribute methamphetamine and the
government dismissed the remaining counts. Mr. Hurd was released on bond
pending completion of the presentence report and he failed to appear for
sentencing. He was apprehended and returned for sentencing several months
later.
In sentencing Mr. Hurd, the district court awarded him a two-level
reduction under U.S.S.G. § 5C1.2, and a three-level reduction for acceptance of
responsibility. The court imposed a two-level enhancement for obstruction of
justice based on Mr. Hurd’s flight prior to sentencing, and denied his request for a
downward departure. Mr. Hurd was sentenced to 168 months, the lowest possible
sentence allowed by the applicable guideline range.
Mr. Hurd’s attorney filed a notice of appeal 1 and subsequently filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). Anders holds that if after
Mr. Hurd’s appeal was filed one day late. A defendant such as Mr. Hurd,
1
“who filed his notice of appeal within the Rule 4(b) thirty-day extension period
may obtain relief by showing excusable neglect notwithstanding his failure to file
a motion seeking such relief within that same time frame.” United States v.
McMillan, 106 F.3d 322, 324 (10th Cir. 1997). Mr. Hurd filed his notice of
appeal within the thirty-day extension period and the district court subsequently
determined that excusable neglect was shown. Accordingly, we have jurisdiction
over this appeal.
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conscientious examination counsel finds a case to be wholly frivolous, he should
so advise the court and request permission to withdraw. Counsel must in addition
submit to both the court and his client a brief referring to anything in the record
arguably supportive of the appeal. The client may then raise any points he
chooses, and the appellate court thereafter undertakes a complete examination of
all the proceedings and decides whether the appeal is wholly frivolous. If it so
finds, it may grant counsel’s request to withdraw. See id. at 744.
In his Anders brief, counsel presents two possible points: the district
court’s imposition of an upward adjustment for obstruction of justice and the
court’s denial of Mr. Hurd’s motion for a downward departure. Counsel states his
opinion that the appeal presents no non-frivolous issues and requests leave to
withdraw as counsel. Mr. Hurd has not filed a pro se brief in response.
Accordingly, we turn to an examination of the proceedings to determine if this
appeal is wholly frivolous.
Under U.S.S.G. § 3C1.1, a defendant’s offense level is increased two levels
if he has obstructed justice. The commentary to that guideline includes as an
example of obstructive conduct “willfully failing to appear, as ordered, for a
judicial proceeding.” Id. comment. (n.4(e)). See also United States v. St. Julian,
922 F.2d 563, 571 (10th Cir. 1990) (failure to appear for scheduled sentencing
hearing justified imposition of enhancement for obstruction of justice). It is
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undisputed that Mr. Hurd willfully fled the jurisdiction after his release on bond
and willfully failed to appear for his scheduled sentencing hearing. Accordingly,
we see no error in the district court’s imposition of an enhancement for
obstruction of justice.
The district court refused to grant Mr. Hurd a downward departure. In so
doing, the court clearly recognized that it had the discretion to depart downward
but declined to do so. Because the court acknowledged its authority to grant such
a departure, we have no jurisdiction to review its decision refusing to exercise
that authority. See United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.
1994).
After review of the entire proceedings, we conclude that the record
establishes no non-frivolous ground for appeal. The judgment is therefore
AFFIRMED and counsel’s motion to withdraw is GRANTED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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