The Honorable Russell G. Clark, United States District Judge 1

for the Western District of Missouri.

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No. 95-2831

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United States of America, *

 *

Appellee, *

 *

v. * Appeal from the United States

 * District Court for the

James Kenneth Thomas, also known * Western District of Missouri.

as Jim Autry, *

 * [PUBLISHED]

Appellant. *

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 Submitted: December 12, 1995

 Filed: December 27, 1995

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Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.

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PER CURIAM.

James Kenneth Thomas appeals the sentence imposed by the district

court following his guilty plea to conspiracy to distribute marijuana, in 1

violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm.

After pleading guilty and being released on bond, Thomas tested

positive for various controlled substances. Thomas later absconded for

approximately three months. After he was re-arrested, Thomas admitted he

had used marijuana while out on bond. At sentencing, the district court

overruled Thomas's objections to an obstruction-of-justice enhancement and

denied him an acceptance-of-responsibility reduction. The court sentenced
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Thomas to the 60-month statutory maximum term of imprisonment, which was

below Thomas's Guidelines sentencing range of 63 to 78 months imprisonment.

Thomas first argues the district court erred by assessing an

obstruction-of-justice enhancement under U.S.S.G. § 3C1.1. We review de

novo whether section 3C1.1 applies to Thomas's specific conduct. See

United States v. Sykes, 4 F.3d 697, 699 (8th Cir. 1993) (per curiam).

Because Thomas absconded from supervision, we conclude the district court

properly assessed the obstruction-of-justice enhancement. See United

States v. Shinder, 8 F.3d 633, 635 (8th Cir. 1993) (holding § 3C1.1

enhancement proper where defendant fled to California after conviction and

prior to sentencing); United States v. Lyon, 959 F.2d 701, 707 (8th Cir.

1992) (holding § 3C1.1 enhancement proper where defendant fled

jurisdiction, became fugitive, and used alias); cf. U.S.S.G. § 3C1.1,

comment. (n.3(e)) (1992) (example of conduct to which § 3C1.1 enhancement

applies is when defendant escapes from custody before sentencing).

Next, Thomas argues the district court erred by denying him an

acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1. Given

Thomas's continued drug use, we conclude the district court did not clearly

err by denying him the reduction. See United States v. Evans, 51 F.3d 764,

766 (8th Cir. 1995) (standard of review): United States v. Poplawski, 46

F.3d 42, 42-43 (8th Cir.) (no error in denying reduction for acceptance of

responsibility when defendant, while free on bond, continued use of drug

related to instant conspiracy offense), cert. denied, 115 S. Ct. 2261

(1995); United States v. Wivell, 893 F.2d 156, 159 (8th Cir. 1990) (same).

Finally, we reject Thomas's argument that the district court erred

by not granting him a downward departure under U.S.S.G. §§ 5K1.1, p.s. or

5K2.0, p.s. Absent a government motion, the district court lacked the

authority to grant Thomas a section 5K1.1
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departure. See Wade v. United States, 112 S. Ct. 1840, 1843-44 (1992).

The district court also lacked the authority to depart under section 5K2.0

on the basis of substantial assistance. See United States v. Baker, 4 F.3d

622, 624 (8th Cir. 1993).

Accordingly, the judgment is affirmed.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.