United States v. Reed

52 F. App'x 17

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 27, 2002
• Docket: No. 02-30080; D.C. No. CR-01-00013-RHW
• Status: Published

Opinion

MEMORANDUM

**

Dale Demont Reed appeals his 220-month sentence imposed following his guilty plea conviction for one count of armed bank robbery, in violation of 18 U.S.C. § 2113(d). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

Reed first contends that the district court erred by applying adjustments for both obstruction of justice under U.S.S.G. § 3C1.1 and reckless endangerment during flight under § 3C1.2 based on the same conduct. Reviewing de novo, United States v. Hernandez-Sandoval, 211 F.3d 1115, 1118 (9th Cir.2000), we are not persuaded.

The reckless endangerment adjustment should not be applied if another adjustment based on the same conduct is applied. U.S.S.G. § 3C1.2, cmt. n. 1; United States v. Alexander, 48 F.3d 1477, 1493 (9th Cir.1995). Reed obstructed justice when he escaped from custody, see United States v. Petersen, 98 F.3d 502, 508 (9th Cir.1996), and recklessly endangered others one month later when he evaded recapture, see Alexander, 48 F.3d at 1493. Because the adjustments were not based on the same conduct, see United States v. Christoffel, 952 F.2d 1086, 1089 (9th Cir.1991), the district court did not err by increasing his offense level for both acts. See United States v. Dixon, 201 F.3d 1223, 1234 (9th Cir.2000).

Reed’s second contention is that the district court erred by refusing to decrease his offense level for acceptance of responsibility under § 3E1.1. Reviewing for clear error, United States v. Thompson, 80 F.3d 368, 370 (9th Cir.1996), we disagree.

Only in an extraordinary case would both an obstruction of justice enhancement under § 3C1.1 and an acceptance of responsibility adjustment under § 3E1.1 apply. U.S.S.G. § 3E1.1, cmt. n. 4; Thompson, 80 F.3d at 371. This is not an extraordinary case because Reed obstructed justice by escaping before sentencing, remaining a fugitive for over a month, and evading apprehension once the police located him. See Thompson, 80 F.3d at 371. Thus, the district court did not err by not granting an acceptance of responsibility adjustment. See id.

Reed’s final contention is that the district court erred by not granting a downward departure for disparity between his sentence and a co-defendant’s sentence. Because Reed did not raise this issue in the district court, it is waived on appeal. See United States v. Tucker, 133 F.3d 1208, 1219 (9th Cir.1998).

AFFIRMED.

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