United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-1653MN

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United States of America, *

*

Appellee, * On Appeal from the United States

* District Court for the

v. * District of Minnesota.

* 

Jeffrey Brian Martinez, * [To Be Published]

*

Appellant. *

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 Submitted: November 29, 2000

 Filed: December 12, 2000

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Before RICHARD S. ARNOLD, HANSEN, and BYE, Circuit Judges.

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PER CURIAM.

Jeffrey Brian Martinez pleaded guilty to conspiring to commit bank larceny from

automatic teller machines (ATMs), in violation of 18 U.S.C. §§ 371 and 2113(b), and

bank larceny from an ATM, in violation of 18 U.S.C. §§ 2 and 2113(b). The

presentence report recommended assessing an obstruction-of-justice enhancement and

denying an acceptance-of-responsibility reduction, because, although Martinez had

been cooperative throughout the interview process, he subsequently failed alcohol and

drug tests while under court-ordered supervision at a halfway house, he absconded
1The Honorable James M. Rosenbaum, United States District Judge for the

District of Minnesota.

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from the halfway house prior to a bond-revocation hearing, and he failed to appear for

the hearing. Over his objection at sentencing, the District Court1 denied a reduction for

acceptance of responsibility and applied an enhancement for obstruction of justice.

Martinez was sentenced to concurrent prison terms of 5 years and 5 years 11 months,

plus 3 years supervised release. He appeals, arguing the Court erred as to the

enhancement and reduction, because they were based on the same misconduct and

were not directly linked to the ATM offenses. He also contends the Court erred by not

analyzing his case to determine whether it was “extraordinary.”

We review for clear error the District Court’s findings with respect to the

obstruction-of-justice enhancement and the acceptance-of-responsibility reduction. See

United States v. Baker, 200 F.3d 558, 562 (8th Cir. 2000) (standard of review for

enhancement); United States v. Ervasti, 201 F.3d 1029, 1043 (8th Cir. 2000) (standard

of review for reduction). Having done so, we find no error in light of Martinez’s presentencing misbehavior. See U.S.S.G. § 3C1.1, comment. (n.4(e)) (obstruction

enhancement applies to escaping from custody before sentencing, and willful failure to

appear for judicial proceeding); U.S.S.G. § 3E1.1, comment. (n.4) (conduct supporting

obstruction enhancement ordinarily indicates defendant should not receive acceptance

reduction; however, in “extraordinary cases . . . adjustments under both §§ 3C1.1 and

3E1.1 may apply”); United States v. Honken, 184 F.3d 961, 968, 970 (8th Cir.) (burden

is on defendant to establish entitlement to acceptance reduction; committing obstructive

conduct between plea and sentencing “would almost certainly” disqualify defendant

from receiving such reduction), cert. denied, 120 S. Ct. 602 (1999); United States v.

Byrd, 76 F.3d 194, 197 (8th Cir. 1996) (§ 3E1.1 does not preclude sentencing judge,

in exercise of discretion, from considering unlawful conduct unrelated to offense of

conviction in determining whether defendant qualifies for acceptance reduction); United

States v. Shinder, 8 F.3d 633, 635 (8th Cir. 1993) (defendant’s flight prior to
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sentencing was “sufficient ground” both to apply obstruction enhancement and to deny

acceptance reduction).

Accordingly, we affirm. 

A true copy.

Attest:

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