     Case: 18-11544      Document: 00515069182         Page: 1    Date Filed: 08/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                    No. 18-11544
                                                                                FILED
                                                                           August 8, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JB FOSTER MCAFEE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:15-CR-20-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       JB Foster McAfee pleaded guilty to possession with intent to distribute
five grams or more of methamphetamine, and he received a within-guidelines
sentence of 175 months in prison. On appeal, he challenges the imposition of
an enhancement for obstruction of justice under U.S.S.G. § 3C1.1. We review
the district court’s factual finding of obstruction of justice for clear error.
United States v. Cisneros, 112 F.3d 1272, 1279 (5th Cir. 1997).


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-11544

      The enhancement was based on the fact that after McAfee was released
on bond after his arrest on drug charges in Texas, he fled and was ultimately
discovered years later in Massachusetts under an assumed name, using
fraudulent identification documents. McAfee argues that the enhancement did
not apply because he was not “in custody” at the time of his flight and that his
actions constituted mere “fleeing from arrest” that does not warrant an
enhancement under the commentary to the Guideline. See § 3C1.1, comment.
(n.5(D)). As there is no dispute that McAfee’s flight did not occur during the
attempt to arrest him and occurred much later, his focus on whether he was
“in custody” at the time of his flight is not on point. Cf. United States v. Wright,
496 F.3d 371, 373, 375 (5th Cir. 2007) (holding that a defendant’s flight out of
a back door when officers arrived to arrest him did not warrant an
enhancement because he was never taken into custody); United States v.
Huerta, 182 F.3d 361, 363, 365-66 (5th Cir. 1999) (concluding that the
defendant’s brief escape from officers warranted an enhancement because he
had been handcuffed and transported to a police station).
      McAfee also notes that at the time he left Texas, federal charges had not
yet been filed. In addition, he contends that his use of an alias was not
obstructive because the presentence report indicated that he had obtained the
fraudulent documents solely to obtain employment.            McAfee’s flight and
subsequent use of false identification documents was obstructive and not an
ordinary case of an individual attempting to avoid arrest, and the
enhancement was not clearly erroneous. See § 3C1.1, comment. (n.5(D)); see
also United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000) (stating that
factors for a court to consider in determining whether a defendant’s conduct
rose to the level of obstruction are whether there was a high risk that
obstruction of justice occurred and whether the conduct required extensive



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                                 No. 18-11544

planning as opposed to a spontaneous decision). Because the district court’s
determination is “plausible in light of the record read as a whole,” the
imposition of the enhancement does not constitute clear error. United States
v. Claiborne, 676 F.3d 434, 437 (5th Cir. 2012) (internal quotation marks and
citation omitted).
      In addition, McAfee argues that the district court should have awarded
a reduction under § 3E1.1 for acceptance of responsibility. Such a reduction is
normally precluded if a defendant receives an enhancement for obstruction of
justice. § 3E1.1, comment. (n.4). McAfee concedes this fact, but he maintains
that he was entitled to the reduction because he did not challenge the federal
proceedings after his arrest in Massachusetts and because he promptly
pleaded guilty. Given that he fled the state in order to avoid at least a state
prosecution arising out of the same operative facts as the federal charges,
McAfee has not shown that his is an “extraordinary case” warranting both the
enhancement and a reduction. § 3E1.1, comment. (n.4); see United States
Lujan-Sauceda, 187 F.3d 451, 451-52 (5th Cir. 1999) (upholding denial of
acceptance of responsibility after defendant voluntary surrendered after her
flight prior to sentencing). McAfee has not established that the district court’s
denial was “without foundation.” United States v. Juarez-Duarte, 513 F.3d
204, 211 (5th Cir. 2008). Accordingly, the judgment of the district court is
AFFIRMED.




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