United States v. Benitez-Jaimes

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 20, 1997
• Docket: 96-50968
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-50968 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSÉ MARCIANO BENITEZ-JAIMES,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-94-CR-83-13 - - - - - - - - - - August 14, 1997 Before KING, HIGGINBOTHAM, and DUHÉ, Circuit Judges.

PER CURIAM:*

José Marciano Benitez-Jaimes appeals the increase in his

offense level for obstruction of justice and the denial of credit

for acceptance of responsibility. Benitez-Jaimes contends that

the Government did not prove that he willfully failed to appear

for sentencing, and the district court did not make a finding

that his failure to appear was willful. Benitez-Jaimes contends

that because he should not have received the increase for

obstruction of justice, the district court erred by denying him a

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 96-50968 -2-

reduction for acceptance of responsibility.

We review the district court's determination that appellant

obstructed justice within the meaning of U.S.S.G. § 3C1.1 for

clear error. United States v. Bethley, 973 F.2d 396, 402 (5th

Cir. 1992). Benitez-Jaimes’ deliberate failure to appear for

sentencing provided grounds for imposing a two-level increase for

obstruction of justice. See U.S.S.G. § 3C1.1, comment. (n.3(e));

United States v. O’Callaghan, 106 F.3d 1221, 1223 (5th Cir. 1997)

(failure to appear is willful if it is conscious and deliberate).

The district court’s reliance on the information in the

presentence report was not clearly erroneous. See United States

v. Vital, 68 F.3d 114, 120 (5th Cir. 1995) (the district court

may consider information in the presentence report as reliable

evidence). The district court’s implicit finding that

appellant's failure to appear for sentencing was willful obviates

a remand. See United States v. Puig-Infante, 19 F.3d 929, 943

(5th Cir. 1994) (district court can make implicit findings as to

contested facts as long as reviewing court is not left to second-

guess the basis for the sentencing decision).

Benitez-Jaimes did not object to the denial of credit for

acceptance of responsibility, and our review is limited to plain

error. See Fed. R. Crim. P. 52(b). Benitez-Jaimes’ conduct,

failing to appear at sentencing and remaining a fugitive, does

not support a finding that this is an extraordinary case in which

adjustments for both obstruction of justice and acceptance of No. 96-50968 -3-

responsibility would be appropriate. See United States v. Ayala,

47 F.3d 688, 691 (5th Cir. 1995) (defendant's subsequent

cooperation and entry of guilty plea after flight from custody,

constituting obstruction of justice, did not warrant a finding of

acceptance of responsibility). The district court did not commit

error, plain or otherwise, by denying credit for acceptance of

responsibility.

AFFIRMED.