United States v. Alvaro Hernandez, T/n Maximilliano Alvaro Avelar-Hernandez

139 F.3d 909, 1998 U.S. App. LEXIS 12037, 1998 WL 81453

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 1998
• Docket: 97-50058
• Status: Unpublished

Opinion

139 F.3d 909

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
United States of America, Plaintiff-Appellee,
v.
Alvaro HERNANDEZ, T/N Maximilliano Alvaro Avelar-Hernandez,
Defendant-Appellant.

No. 97-50058.
D.C. No. CR-96-00054-LHM.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 4, 1998**.
Decided Feb. 24, 1998.

Appeal from the United States District Court for the Central District of California Linda H. McLaughlin, District Judge, Presiding.

Before WALLACE, TROTT, and HAWKINS, Circuit Judges.

MEMORANDUM*

We affirm the district court's imposition of a two-point increase in Mr. Hernandez's base offense level. Mr. Hernandez's escape attempt placed him squarely within the definition of obstructing justice pursuant to U.S.S.G. § 3C1.1. See U.S.S.G. § 3C1.1, Application Note 3(e).

We also affirm the district court's denial of a reduction for acceptance of responsibility. Mr. Hernandez's arguments do not demonstrate that his case is an extraordinary one which warrants a reduction for acceptance of responsibility despite his attempt to obstruct justice. See U.S.S.G. § 3E1.1, Application Note 4.

Finally, we reject Mr. Hernandez's contention that the enhancement, coupled with the denial of reduction, constituted impermissible double counting under the Sentencing Guidelines. The Sentencing Guidelines clearly contemplate double counting in this context. See U.S.S.G. § 3E1.1, Application Note 4. In addition, the increase and the denial of reduction each "serve[] a unique purpose under the Guidelines" and application of both is therefore permissible. United States v. Reese, 2 F.3d 870, 895 (9th Cir.1993) (citing United States v. Starr, 971 F.2d 357, 361 (9th Cir.1992)). Mr. Hernandez's escape attempt--as an attempt to obstruct justice--warranted an increase in his offense level. His escape attempt also constituted evidence that he did not believe he deserved punishment for his crime. Thus, the attempt supported the denial of reduction as well.

AFFIRMED.

** The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a); 9th Cir. R. 34-4

* This disposition is not appropriate for publication and may not be cited to or by the courts in this circuit except as provided by Ninth Circuit Rule 36-3