Submitted: November 11, 2014.
Appeal from United States District Court for the District of Nebraska - Omaha.
For United States of America, Plaintiff - Appellee: Martin Conboy, IV, Special Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Nebraska, Omaha, NE.
Daniel T. Ray, Defendant - Appellant, Pro se, Adelanto, CA.
For Daniel T. Ray, Defendant - Appellant: Michael J. Tasset, JOHNSON & MOCK, Oakland, NE.
Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges.
RILEY, Chief Judge.
A grand jury indicted Daniel T. Ray for possessing with intent to distribute at least five grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii), and possessing a firearm in furtherance of this drug trafficking crime in violation of 18 U.S.C. § 924(c). While on pretrial release, Ray was to reside at a residential drug treatment facility and follow facility rules. On October 17, 2013, at Ray's request, the magistrate judge ordered Ray to appear for a change-of-plea hearing on November 7, 2013. Three days before the hearing, Ray slipped away from the treatment facility after curfew and did not return. With Ray still missing on November 6, 2013, the magistrate judge issued a warrant for his arrest. Ray did not appear at the November 7 hearing. Arrested the next day, Ray ultimately pled guilty to both counts. The district court sentenced Ray to 160 months imprisonment (100 months for methamphetamine possession and a consecutive 60 months for firearm possession). Ray appeals his sentence.
A. Obstruction-of-Justice Enhancement
Ray argues the district court procedurally erred by applying a two-level obstruction-of-justice enhancement in United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 3C1.1. The enhancement applies to, among other things, " escaping or attempting to escape from custody before trial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding." U.S.S.G. § 3C1.1 cmt. n.4(E). By absconding from the drug treatment facility
in violation of his pretrial release conditions, Ray escaped " from custody" within the meaning of U.S.S.G. § 3C1.1. See Hayes v. United States, 281 F.3d 724, 725 (8th Cir. 2002).
Ray also satisfied § 3C1.1 by failing to appear at his court ordered change-of-plea hearing. Ray claims he was at the courthouse on the day of the hearing and left without appearing in court. He argues his nonappearance " did not cause the court . . . any material delay or expense." But unlike United States v. Peters,394 F.3d 1103 (8th Cir. 2005), to which Ray compares his case, Ray's plea hearing was scheduled weeks in advance, he gave no explanation for his absence, and he never requested a continuance.
Compare Peters, 394 F.3d at 1106 (excusing the defendant's failure to appear at the hearing scheduled on short notice where the defendant had informed her attorney of her inability to attend the hearing, leading her attorney to move successfully for a continuance). Ray's plea hearing was cancelled and rescheduled because Ray chose not to attend, leaving the magistrate judge sitting on the bench waiting for Ray to appear. Ray's actions also forced the ...