Case Information
*1 Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
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RILEY, Chief Judge.
Antonio Morales Chavez (Morales) claims the district court erred in finding he obstructed justice and did not accept responsibility for his crimes. We disagree.
I. BACKGROUND
Morales was caught selling methamphetamine in Melrose, Minnesota, when his buyer turned out to be a police informant. A few days later, he was charged by complaint and released on bond. He then left for Mexico. He says he went to take care of his mother, who had cancer and was facing surgery, and he did not tell the authorities because he was afraid they would not let him go. That was in 2004.
Morales returned to the United States in 2007, left again, and came back in 2008. Both times he reentered the country, he was inspected and admitted at the border after showing his lawful permanent resident card. After his return, he lived and worked in California, where he paid taxes and child support under his real name.
In 2013, Morales sent his name and fingerprints to the FBI for a criminal background check to see if he had an outstanding warrant. He did. A bond- revocation hearing had been scheduled and a warrant issued for his arrest around the time he absconded to Mexico in 2004. Morales was then detained in the Eastern District of California and eventually transferred back to the District of Minnesota, where he stood trial and was found guilty of conspiring to distribute, possessing with the intent to distribute, and distributing methamphetamine, see 21 U.S.C. §§ 841(a)(1), (b)(1), 846; see also 18 U.S.C. § 2(a) (accomplice liability). In determining Morales’s advisory sentence under the United States Sentencing Guidelines (U.S.S.G. or Guidelines), the district court increased his offense level by two levels for obstructing justice, see U.S.S.G. § 3C1.1, and refused to decrease it by two levels for accepting responsibility, see id. § 3E1.1(a). Morales unsuccessfully
*3 contested both points. The Guidelines calculations resulted in an advisory range of 121 to 151 months in prison. The district court varied downward and sentenced Morales to 96 months in prison and three years of supervised release. On appeal, see 28 U.S.C. § 1291 (appellate jurisdiction), Morales challenges the rulings on the two adjustments.
II. DISCUSSION
With respect to the obstruction-of-justice adjustment, Morales’s argument is
not about what he did—in short, jumped bond and then lived abroad and in another
state for nearly nine years—but whether his conduct satisfies the relevant section of
the Guidelines. We review that legal question de novo. See United States v. Mashek,
Guidelines § 3C1.1(1) calls for a two-level increase if “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
[defendant’s] instant offense of conviction.” Morales says his conduct was not
willful, because he left to be with his sick mother, not to interfere with the
investigation or prosecution of his case. Cf., e.g., United States v. Collins, 754 F.3d
626, 629 (8th Cir. 2014) (“In order to act willfully [for purposes of § 3C1.1], the
defendant must ‘consciously act with the purpose of obstructing justice.’” (quoting
United States v. Watts,
Morales points out that an application note to § 3C1.1 lists “willfully failing
to appear,
as ordered
, for a judicial proceeding” as an “example[] of the types of
conduct to which this adjustment applies.” U.S.S.G. § 3C1.1 application n.4(E)
(emphasis added). Because he left the country before being ordered to make any
appearances, Morales reasons, his conduct falls outside that provision. That may be
true, but the list of examples in the note is explicitly “non-exhaustive,” id., and we
have repeatedly upheld adjustments under § 3C1.1 for defendants who, like Morales,
did not have any proceedings scheduled when they left town. See, e.g., Billingsley,
III. CONCLUSION
The district court did not err in determining that the obstruction-of-justice adjustment did apply to Morales and the acceptance-of-responsibility adjustment did not. Morales’s sentence is affirmed.
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Notes
[1] The Honorable John R. Tunheim became Chief Judge of the United States District Court for the District of Minnesota on July 1, 2015.
[2] Some of the dates in the record and the parties’ briefs with respect to this chapter of Morales’s story do not line up. As far as we can tell, the inconsistency stems from a paragraph in the presentence investigation report that mistakenly dated Morales’s background check to 2014 rather than 2013. We discern no actual dispute or uncertainty about how long Morales was on the lam.
[3] We are also unpersuaded by Morales’s theory that because he had not yet been
indicted his departure for Mexico was analogous to “avoiding or fleeing from arrest,”
which another application note says generally should not trigger an offense-level
increase. See U.S.S.G. § 3C1.1 application n.5(D). We have explained that flight
“does not warrant enhancement because it is more of an initial instinctive reaction
than willful obstruction of justice” and “generally occurs without knowledge that an
investigation is underway.” United States v. Hare,