United States v. Carl D. Hopkins, Jr. ( 1996 )

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No. 95-4081
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Carl D. Hopkins, Jr., *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 31, 1996
Filed: June 11, 1996
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Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Carl D. Hopkins, Jr., challenges the 210-month sentence imposed by
the district court1 after he pleaded guilty to distributing more than fifty
grams of a mixture or substance containing cocaine base, in violation of
21 U.S.C. § 841(a)(1). We affirm.
Following his March 1994 arrest, Hopkins was released to the custody
of a third party pursuant to an order setting his release conditions. In
June 1994, a warrant for Hopkins's arrest was issued after he ceased to
reside at his court-ordered placement and failed to report for court-
ordered drug and alcohol counselling. In December 1994, Hopkins was
arrested. Hopkins asserted that he
1
The Honorable Thomas M. Shanahan, United States District
Judge for the District of Nebraska.
went into hiding and failed to abide by his release conditions because his
life had been threatened after an alleged leak that he was cooperating with
the government. During the time between his disappearance and his December
arrest, however, Hopkins did not inform law enforcement authorities of his
whereabouts or the threats.
Over Hopkins's objections, the district court assessed an
obstruction-of-justice enhancement, denied an acceptance-of-responsibility
reduction, and declined to sentence Hopkins under the Guidelines applicable
to cocaine powder rather than cocaine base.
The Guidelines provide for a two-level increase if the defendant
"willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the investigation, prosecution, or
sentencing of the instant offense." U.S.S.G. § 3C1.1. Escaping or
attempting to escape from custody before trial or sentencing, or willfully
failing to appear for a judicial proceeding as ordered, are examples of
conduct to which the enhancement applies. Id., comment. (n.3(e)). We
review de novo whether a defendant's conduct merits the enhancement, United
States v. Thomas, 72 F.3d 92, 93 (8th Cir. 1995) (per curiam), and review
for clear error the district court's supporting factual findings, United
States v. Zerba, 21 F.3d 250, 253 (8th Cir. 1994).
Hopkins was in "custody" for purposes of section 3C1.1 when he left
his court-ordered placement, failed to appear for the required counselling,
and failed to advise the appropriate authorities of his location. See
United States v. Draper, 996 F.2d 982, 985-86 (9th Cir. 1993) (custody need
only involve some degree of official control over defendant such that
subsequent evasion amounts to more than merely avoiding or fleeing arrest);
cf. Thomas, 72 F.3d at 93 (upholding assessment of § 3C1.1 enhancement
where defendant absconded from supervision while on bond pending
sentencing).
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Hopkins does not contend that he lacked notice of his release conditions,
and in fact admits violating them. Cf. United States v. Monroe, 990 F.2d
1370, 1376 (D.C. Cir. 1993) (defendant's failure to appear at arraignment
not willful where she did not have notice of arraignment). We conclude the
district court did not err in assessing the enhancement.
We also reject Hopkins's challenge to the district court's denial of
an acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1(a) (two-
level reduction warranted if defendant clearly demonstrates acceptance of
responsibility for offense). Hopkins's guilty plea did not automatically
entitle him to the reduction, see id., comment. (n.3), and the
determination as to whether he accepted responsibility is a factual
question largely dependent on the district court's credibility assessment,
see United States v. Yell, 18 F.3d 581, 583 (8th Cir. 1994). We have
concluded that Hopkins's conduct supported the obstruction-of-justice
enhancement, and we do not believe this is an extraordinary case in which
both provisions apply. See U.S.S.G. § 3E1.1, comment. (n.4); cf. Lyon, 959
F.2d at 707 (upholding denial of § 3E1.1 reduction based on defendant's
year-long fugitive status). The district court did not clearly err in
denying Hopkins an acceptance-of-responsibility reduction. See United
States v. Nguyen, 52 F.3d 192, 194 (8th Cir. 1995) (standard of review).
Finally, Hopkins's equal protection challenge to the penalty scheme
for cocaine base is foreclosed by our recent decision in United States v.
Smith, 82 F.3d 241, 1996 WL 200730, at *2 (8th Cir. Apr. 26, 1996).
Accordingly, the judgment of the district court is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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