FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 August 20, 2004 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 03-14354

Non-Argument Calendar

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D. C. Docket No. 02-00009-CR-T-23-TGW

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

GARRY VICTOR FRASIER, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

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(August 20, 2004)

Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.

PER CURIAM:

In January 2002, appellant and Lonnie Code were indicted for having
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committed the following armed bank robberies in Florida: Count One, an October

23, 2001 robbery of the Suncoast Schools Federal Credit Union in Bradenton;

Count Four, a November 8, 2001 robbery of the Washington Mutual Bank in

Orlando; Count Six, a November 13, 2001 robbery of the Prosperity Bank in St.

Augustine. Appellant was charged in Counts Two and Seven with using or

carrying a firearm during and in relation to the robberies charged in Counts One

and Six. 

Code pled guilty as charged; appellant stood trial before a jury. After the

district court denied his motion for judgment of acquittal, the jury convicted

appellant on all counts. The court sentenced him to prison on all counts for a total

of 528 months as follows: concurrent sentences of 168 months on Counts One,

Four and Six, a consecutive sentence of 60 months on Count Two, and a

consecutive sentence of 300 months on Count Seven. Appellant now appeals his

convictions on Counts Two and Seven and his sentences.

I.

Appellant contends that the district court should have granted his motion for

judgment of acquittal on Counts Two and Seven on the ground that the evidence

was insufficient to show that he used and carried a handgun during the robberies of

the Suncoast Schools Federal Credit Union and the Prosperity Bank. Actually, his
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contention is that the testimony of the witnesses who said that he was armed with a

handgun during those robberies is unworthy of belief. 

The prosecutor presented these witnesses. In support of Count Two, the

prosecutor called a Suncoast service center manager. She testified that two men

entered the credit union and robbed it of $15,500. She identified appellant as a

man depicted in a photo taken by a security camera during the robbery. Appellant

was holding a firearm. A Suncoast customer and a Suncoast teller also identified

appellant from the same photo. In support of Count Seven, the prosecutor called a

Prosperity Bank employee whom appellant confronted during the robbery. He

was armed. She had no trouble identifying him. The branch manager also

identified appellant as one of the robbers. Appellant entered his office, instructed

him to move into the lobby, and pulled out a gun. 

The testimonies of the Count Two and Seven witnesses, along with the

photos made during the course of these robberies, were more than adequate to

establish the offenses charged in Counts Two and Seven of the indictment. We

therefore affirm appellant’s convictions on those counts

II.

Appellant asks that we set aside his sentences on Counts One, Four, and Six

and remand the case for resentencing on the ground that the district court, in
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determining the appropriate sentencing ranges under the Guidelines for those

counts, clearly erred in adjusting his base offense levels upward by two levels

pursuant to U.S.S.G. § 3C1.1. We find no clear error and therefore affirm

appellant’s sentences.

A two-level, obstruction-of-justice enhancement is appropriate under section

3C1.1 if (1) a defendant willfully obstructed or impeded “the course of the

investigation, prosecution, or sentencing of the instant offense of conviction,” and

(2) the obstructive conduct related to either the offense of conviction or any

relevant conduct. U.S.S.G. § 3C1.1. Attempting to escape from custody prior to

trial constitutes obstruction of justice under § 3C1.1. U.S.S.G. § 3C1.1, comment

(n.4(e)). 

The court applied section 3C1.1 in this case because it found that appellant

attempted to escape from the Orange County, Florida jail to avoid federal

prosecution. Appellant was being held in the Orange County jail as a pretrial

detainee, having been charged by the State of Florida for committing the bank

robberies at issue here. An FBI agent came to the jail and informed appellant that

the federal government was investigating the robberies and that he was a target of

the investigation. The agent hoped that appellant, once indicted by a federal grand

jury, would cooperate and assist the government in recovering the stolen money. 
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Following the agent’s visit, appellant attempted to escape from the jail.

Appellant contends that section 3C1.1 is inapplicable in this case because 

no federal charges were pending at the time of his escape attempt. Absent federal

charges, he could not have known that he was obstructing a federal investigation. 

He cites United States v. Rudisill, 187 F.3d 1260 (11th Cir. 1999), to support his

theory that to receive an obstruction-of-justice enhancement, the defendant must

have known that he was being detained for a federal proceeding. 

In Rudisill, we held that a defendant’s encouragement of a witness to flee,

rather than comply with a federal grand jury subpoena, constituted obstruction of

justice. Rudisill, 187 F.3d at 1264. Although we have not passed on the situation

appellant’s case presents, other circuits expressly have found that an obstructionof-justice enhancement is applicable where the defendant’s conduct obstructed a

state investigation, which later turned into a federal investigation. See United

States v. Imenec, 193 F.3d 206, 209 (3rd Cir. 1999) (concluding that “a § 3C1.1

enhancement is appropriate where the defendant has obstructed a prosecution

based on the same criminal conduct underlying the offense of conviction even

though that prosecution [was] going forward in a state court”); United States v.

Emery, 991 F.2d 907, 911 (1st Cir.1993) (finding that a defendant should not be

rewarded “merely because he managed to engineer his attempted escape just before
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the federal investigation formally began”); United States v. Roberts, 243 F.3d 235,

240 (6th Cir. 2001) (finding that escape, which preceded federal involvement in a

case, could be grounds for an obstruction-of-justice enhancement); United States v.

Adediran, 26 F.3d 61, 65 (8th Cir. 1994) (stating that obstruction-of-justice

enhancement was not barred because state entities were involved); United States v.

Lato, 934 F.2d 1080, 1083 (9th Cir. 1991) (ruling that the obstruction of a state

investigation was sufficient for an obstruction-of-justice enhancement). In

contrast, only the Seventh Circuit has found that the obstruction of a state

investigation was insufficient to justify imposition of the section 3C1.1

enhancement. See United States v. Perez, 50 F.3d 396, 400 (7th Cir.1995) (finding

that defendant’s act of fleeing a state drug charge did not impede a later federal

drug conspiracy charge).

Because an FBI agent had informed appellant prior to his attempted escape 

that the federal government was going to prosecute him, we conclude that the

district court was justified in imposing the obstruction-of-justice enhancement.

AFFIRMED.