UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4901

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERTO LARA, a/k/a Roberto Lopez,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Beaufort. Solomon Blatt, Jr., Senior

District Judge. (9:08-cr-01224-SB-2)

Submitted: March 19, 2012 Decided: April 2, 2012

Before MOTZ, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Christopher L. Murphy, STUCKEY LAW OFFICES, LLC, Charleston, 

South Carolina, for Appellant. William N. Nettles, United 

States Attorney, Sean Kittrell, Assistant United States

Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Roberto Lara pled guilty without benefit of a plea 

agreement to conspiracy to possess more than 500 grams of 

cocaine with intent to distribute, 21 U.S.C. § 846 (2006), and 

was sentenced to a term of 108 months’ imprisonment. Lara 

appeals his sentence, contending that the district court erred 

in making an adjustment for obstruction of justice, U.S. 

Sentencing Guidelines Manual § 3C1.1 (2010). We affirm.

A two-level enhancement applies “[i]f (A) 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 instant 

offense of conviction, and (B) the obstructive conduct related 

to (i) the defendant’s offense of conviction and any relevant 

conduct; or (ii) a closely related offense.” USSG § 3C1.1. 

Obstructive conduct includes “willfully failing to appear, as 

ordered, for a judicial proceeding.” USSG § 3C1.1 cmt. n.4(E). 

It does not include “avoiding or fleeing from arrest.” Id. cmt. 

n.5(D). 

Lara was arrested by South Carolina law enforcement 

officers in February 2008 and charged with cocaine trafficking, 

but released on bond. Based on the same conduct, he was later 

indicted on a federal charge of conspiring to possess cocaine 

with intent to distribute. Although an arrest warrant was 
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issued with the indictment, Lara’s attorney negotiated an 

agreement by which Lara would be permitted to surrender 

voluntarily. Instead of surrendering, Lara fled South Carolina. 

His wife informed the federal agent in charge that Lara didn’t 

trust the government, thought he would get too long a sentence, 

and failed to appear for that reason. Subsequently she also 

disappeared with their children. 

After several months, federal marshals located Lara’s 

likely residence in Los Angeles and attempted to arrest a man 

outside the house who proved not to be him. The next day, 

Lara’s wife consented to a search of the house. It contained no 

evidence that an adult male was living there. However, one of 

the young children pointed out the bed where his father slept. 

Lara’s wife then cooperated and took the deputies to a 

construction business where she had taken Lara the night before, 

after the attempted arrest. The manager directed them to a job 

site where Lara was working. After a forty-minute search, Lara 

was located hiding in a ventilation shaft. He gave a false 

name, but was positively identified by his distinctive tattoos.

Lara contested his detention, asserting that he did 

not know he was wanted when he left South Carolina; he sought to 

be released and allowed to travel to South Carolina on his own 

to self-report there. Because the district court judge in 

California seemed inclined to release Lara, a federal agent 
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traveled to California to testify at the detention hearing, 

after which Lara was detained and returned to South Carolina. 

At his sentencing hearing, the federal agent testified 

and the government introduced emails to the agent from Lara’s 

former attorney stating that he had discussed the arraignment 

with Lara. Defense counsel argued that the evidence did not 

establish that Lara knew about his attorney’s agreement for his 

self-surrender. He argued that his conduct amounted to fleeing 

from arrest, which usually does not constitute obstruction of 

justice. See USSG § 3C1.1 cmt. n.5(D). The district court 

determined that Lara knew of the agreement that he would selfsurrender, willfully failed to appear, and subsequently engaged 

in further conduct intended to obstruct his prosecution.

On appeal, Lara acknowledges the distinction 

recognized in United States v. Gonzalez, 608 F.3d 1001 (7th Cir. 

2010), cert. denied, 131 S. Ct. 952 (2011), between “panicked” 

or “instinctual” flight “in the immediate after-math of a 

crime,” and “calculated evasion” or “a deliberate pre-or-postarrest attempt to frustrate or impede an ongoing criminal 

investigation.” 608 F.3d at 1007 (internal quotations and 

citation omitted). However, he argues that he did nothing more 

than flee to avoid arrest, that his wife’s conduct in removing 

all signs of his presence from the house in Los Angeles should 

not be attributed to him, and that concealing himself in the 
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ventilation shaft was a panicked, spur-of-the-moment attempt to 

avoid arrest.

While mere flight may not trigger the § 3C1.1 

adjustment, flight in circumstances that indicate deliberately 

obstructive conduct warrants it. See, e.g. United States v. 

Curb, 626 F.3d 921, 928 (7th Cir. 2010) (defendant who willfully 

failed to appear for sentencing and evaded capture for more than 

two months obstructed justice); United States v. Reeves, 586 

F.3d 20, 23-24 (D.C. Cir. 2009) (defendant who willfully failed 

to appear at arraignment and remained a fugitive for eleven 

months obstructed justice); United States v. Dunham, 295 F.3d 

605, 609 (6th Cir. 2002) (defendant who provided no adequate 

reason for his failure to appear in response to grand jury 

subpoena obstructed justice).

Here, the district court did not clearly err in 

finding as a fact that, when Lara fled South Carolina, he knew 

he had been indicted, an arrest warrant had been issued, and his 

attorney had arranged for him to surrender himself voluntarily. 

Lara’s failure to surrender, his flight to California, and his 

attempts to evade capture when he was located there by federal 

marshals all constituted conduct intended to thwart his 

prosecution, rather than instinctive flight from arrest at the 

scene of a crime. Consequently, we conclude that the district 

court did not err in finding that Lara obstructed justice.
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We therefore affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

AFFIRMED