Submitted: May 16, 2016
from United States District Court for the District of
Minnesota - St. Paul
RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
Morales Chavez (Morales) claims the district
court erred in finding he obstructed justice and
did not accept responsibility for his crimes. We disagree.
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.
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.
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
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 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.
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, 406
F.3d 1012, 1017 (8th Cir. 2005).
§ 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,
940 F.2d 332, 332-33 (8th Cir. 1991))). But "[a]
district court can find that a defendant consciously acts
with the purpose of obstructing justice"-that is, acts
willfully-"when his 'misconduct occurs with
knowledge of an investigation, or at least with a correct
belief that an investigation is probably underway.'"
Id. at 629-30 (quoting United States v.
Dierling, 131 F.3d 722, 738 (8th Cir. 1997)). After
being arrested, consenting to searches of his trailer home
and car, providing a detailed account of his activities to a
police investigator, and being charged by complaint, Morales
unquestionably knew the authorities were building a case
against him. Whatever Morales's reasons for initially
going to Mexico, they do not explain staying away for years
afterward. Indeed, Morales's eventual decision to have
the FBI check for outstanding warrants demonstrates his
awareness that, notwithstanding his consistent use of his
real name, his unexplained disappearance and continued
absence from Minnesota might be standing in the way of
efforts to bring him to justice.
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, 160 F.3d at 507;
United States v. Eagle, 133 F.3d 608, 611 (8th Cir.
1998). And the crux of how Morales obstructed justice was not
just that he skipped a particular hearing, but that by living
abroad and then resettling across the country he delayed the
resolution of his case by almost a decade. The two-level
increase was justified.
the two-level decrease Morales sought, generally
"[c]onduct resulting in an enhancement under §
3C1.1 . . . indicates that the defendant has not accepted
responsibility for his criminal conduct." U.S.S.G.
§ 3E1.1 application n.4. The adjustment is also usually
inapplicable "to a defendant who, " like Morales,
"puts the government to its burden of proof at trial by
denying the essential factual elements of guilt."
Id. § 3E1.1 application n.2. There may be
"rare" exceptions to these rules in
"extraordinary cases, " id. § 3E1.1
application nn.2, 4, but Morales has not convinced us it was
a clear error for the district court not to recognize his as
such a special case. See, e.g., United
States v. Muro, 357 F.3d 743, 744 (8th Cir. 2004) (per
curiam) (standard of review). Morales's cooperation with
the police both times he was caught does not outweigh the
years of obstruction he caused in between. Cf. id.
at 744-45 (upholding the denial of an adjustment because the
defendant "willfully chose the course of conduct that
obstructed justice instead of choosing other options, "
"failed to take any affirmative action to confirm his
acceptance of responsibility after he fled, " and
"merely provided an excuse for his flight"). And
Morales's explanation that he felt compelled to go to
trial despite acknowledging his guilt because "any plea
agreement would . . . have likely required [him] to agree
that he was not entitled to acceptance of responsibility
under U.S.S.G. §3E1.1" anyway, besides being
entirely speculative, apparently rests on the premise that
the only way he ...