1

“Except as authorized by this subchapter, it shall be unlawful for any person

knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with

intent to manufacture, distribute, or dispense, a controlled substance . . . .” 21 U.S.C.

§ 841(a)(1). 

2

“Any person who attempts or conspires to commit any offense defined in this

subchapter shall be subject to the same penalties as those prescribed for the offense,

the commission of which was the object of the attempt or conspiracy.” 21

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 04-1035

___________

United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Pedro C. Baldovinos, *

* [UNPUBLISHED]

Defendant-Appellant. *

___________

Submitted: October 18, 2004

Filed: October 29, 2004

___________

Before COLLOTON, LAY, and BENTON, Circuit Judges.

___________

PER CURIAM.

Pedro Baldovinos pled guilty to one count of conspiracy to distribute cocaine

in violation of 21 U.S.C. §§ 841(a)(1)1

 and 846.2 He absconded while free on bond
U.S.C. § 846.

3

The Honorable Richard E. Dorr, United States District Judge for the Western

District of Missouri.

4

“Commentary in the guidelines manual that interprets or explains a guideline

is authoritative unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that guideline.” United States v.

Honken, 184 F.3d 961, 968 n.5 (8th Cir. 1999) (citing Stinson v. United States, 508

U.S. 36, 38 (1993)).

-2-

awaiting sentencing. A warrant was issued for his arrest and authorities ultimately

arrested him some eleven months later at his Missouri home. The district court3

sentenced Baldovinos to 140 months after imposing a sentencing enhancement for

obstruction of justice, and declining to grant a sentencing reduction for acceptance

of responsibility. He now appeals his sentence. We find no clear error. We affirm.

On appeal, the sentencing court’s interpretation of the Sentencing Guidelines

is a question of law subject to de novo review, while its factual determinations are

subject to review for clear error. United States v. Auginash, 266 F.3d 781, 785 (8th

Cir. 2001). The sentencing judge’s determination that Baldovinos accepted

responsibility is a finding of fact reviewed only for clear error. United States v.

Ervasti, 201 F.3d 1029, 1043 (8th Cir. 2000). Because the sentencing court is in a

unique position to evaluate the defendant’s acceptance of responsibility, its

determination of acceptance “is entitled to great deference on review.” U.S.S.G.

§ 3E1.1, cmt. n.5 (2003).4

The Sentencing Guidelines require the sentencing judge to impose an

enhancement of two levels where the defendant has obstructed or impeded justice.

See U.S.S.G. § 3C1.1. Likewise, the Sentencing Guidelines require the sentencing

judge to reduce the offense level by three levels in circumstances where the defendant

clearly accepts responsibility for his crimes and enters a timely guilty plea that
5

The mandate in this case is stayed pending the Supreme Court’s resolution of

United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, ___ U.S. ___,

2004 WL 1713654 (Aug. 2, 2004), and United States v. Fanfan, Docket 03-47-P-H

(D. Me. June 28, 2004), cert. granted, ___ U.S. ___, 2004 WL 1713655 (August 2,

2004).

-3-

relieves the government of the burden of preparing for trial. See U.S.S.G.

§ 3E1.1(b)(2). Conduct resulting in an enhancement for obstructing or impeding

justice “ordinarily indicates that the defendant has not accepted responsibility for his

criminal conduct.” U.S.S.G. § 3E1.1, cmt. n.4. 

Baldovinos argues that the sentencing judge erred by not exercising discretion

to allow him a reduction for his timely guilty plea despite his subsequent flight to

avoid incarceration. We disagree. While the Sentencing Guidelines allow the

sentencing judge to grant a reduction for acceptance notwithstanding flight, the

Sentencing Guidelines specifically state that such a reduction is appropriate only in

“extraordinary circumstances.” U.S.S.G. § 3E1.1, cmt. n.4. The sentencing judge

appropriately concluded that no such extraordinary circumstances were present in

Baldovinos’ case. While it appears that Baldovinos accepted responsibility for his

criminal conduct by pleading guilty, his subsequent flight indicates that he actually

sought to avoid responsibility by avoiding prison. Likewise, the nature of

Baldovinos’ obstructive conduct was significant: he absconded while on bond,

delayed his sentencing, and caused the authorities to locate him and to arrest him.

Moreover, this conduct was not an isolated incident early in the investigation, but a

sustained, eleven-month flight from justice which was not voluntarily terminated by

Baldovinos. Under these facts, it cannot be said that the sentencing judge’s refusal

to grant a reduction for acceptance of responsibility was clearly erroneous.

The sentence imposed by the district court is affirmed.5

______________________________