                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-4040
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Michael James Longoria

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                for the Eastern District of Arkansas - Little Rock
                                 ____________

                          Submitted: September 27, 2013
                             Filed: November 7, 2013
                                  [Unpublished]
                                  ____________

Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
                              ____________

PER CURIAM.

      Michael Longoria pleaded guilty to one count of possession of a counterfeit
check, in violation of 18 U.S.C. § 513(a). At his sentencing hearing, the district
court1 imposed a two-level enhancement for obstruction of justice pursuant to
U.S.S.G. § 3C1.1 due to Longoria’s attempted escape from state custody. On appeal,
Longoria challenges this sentencing guidelines enhancement. We affirm.

       State authorities arrested Longoria on July 14, 2011 for using a counterfeit
check. Longoria was incarcerated in the Hot Spring County Jail in Malvern,
Arkansas pending state charges. While there, Longoria and his girlfriend devised a
plan of escape. On December 9, 2011, state authorities arrested Longoria’s girlfriend
as she attempted to help Longoria escape. At the time of Longoria’s attempted
escape, federal authorities were investigating his use of counterfeit checks. Longoria
does not dispute that federal authorities interviewed him about this conduct in July
2011, several months before his failed escape. Moreover, three days before
Longoria’s attempted escape, a federal grand jury indicted him on nine counts of
possession of a counterfeit check. Longoria alleges that he did not learn of this
indictment until after he attempted to escape from state custody.

       Longoria pleaded guilty to one of the counts in the federal indictment, and the
Government subsequently moved to dismiss the remaining counts. Prior to
Longoria’s sentencing hearing, the Government objected to the presentence report
because it did not include a two-level enhancement for obstruction of justice under
§ 3C1.1. At the sentencing hearing, Longoria’s counsel conceded the facts of
Longoria’s attempted escape but argued against the enhancement because “anything
[Longoria] did was not trying to avoid [] federal prosecution.” The district court
agreed with the Government and imposed the two-level enhancement for obstruction
of justice, which resulted in an advisory guidelines range of 33 to 41 months’
imprisonment. The district court then granted the Government’s motion for an



      1
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.

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upward departure based on Longoria’s criminal history and sentenced him to 72
months’ imprisonment.

       “We review a district court’s factual findings underlying an obstruction of
justice enhancement for clear error and its construction and application of the
guidelines de novo.” United States v. Mendoza-Gonzalez, 363 F.3d 788, 796 (8th Cir.
2004). Section 3C.1.1 of the guidelines provides:

      If (1) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice with respect to the
      investigation, prosecution, or sentencing of the instant offense of
      conviction, and (2) the obstructive conduct related to (A) the
      defendant’s offense of conviction and any relevant conduct; or (B) a
      closely related offense, increase the offense by 2 levels.

U.S.S.G. § 3C1.1. The application notes specify that an enhancement for obstruction
of justice applies to an attempted escape from custody before trial or sentencing.
U.S.S.G. § 3C1.1, cmt. n.4(E). Longoria makes two arguments for why the district
court improperly imposed the obstruction of justice enhancement, both of which are
foreclosed by controlling precedent. First, Longoria argues that § 3C1.1 does not
apply because his attempted escape from state custody did not obstruct the
investigation, prosecution, or sentencing of “the instant offense of conviction.”
Second, Longoria argues that he could not have “willfully obstructed” the federal
investigation into his use of counterfeit checks because he was unaware of the federal
indictment against him when he tried to escape.

       An obstruction of justice enhancement can result from a defendant’s attempt
to escape from state custody. United States v. Ball, 999 F.2d 339, 340 (8th Cir.
1993). In Ball, while recognizing that “[t]he term ‘instant offense’ [in § 3C1.1] refers
to the offense of conviction,” we nonetheless affirmed the enhancement because the



                                          -3-
defendant’s failed escape was an attempt to obstruct both the state proceedings and
the federal investigation. Id. Furthermore, an enhancement under § 3C1.1 is proper
where, at the time of the obstructive conduct, a defendant is unaware of the federal
investigation that led to the offense of conviction but is aware of a state investigation
that involves a “closely related offense.” United States v. Brown, 461 F.3d 1062,
1072 (8th Cir. 2006).2

       The district court properly imposed the obstruction of justice enhancement
based on Longoria’s attempted escape from state custody. Longoria does not dispute
that he was interviewed by federal authorities about his use of counterfeit checks
before he tried to escape. Consistent with Ball, Longoria’s attempted escape was
therefore an attempt to obstruct both the state and the federal investigations into his
use of counterfeit checks. See 999 F.2d at 340 (noting that defendant had “cooperated
with federal officials” prior to escape attempt); see also United States v. Martin, 369
F.3d 1046, 1061 (8th Cir. 2004) (explaining that willful conduct “occurs with
knowledge of an investigation, or at least with a correct belief that an investigation
is probably underway” (emphasis omitted) (quoting Brown v. United States, 169 F.3d
531, 536 (8th Cir. 1999)). That Longoria was unaware of the federal indictment
against him when he tried to escape makes no difference. See 999 F.2d at 340
(affirming obstruction enhancement where defendant had not been indicted at the
time he attempted to escape); § 3C1.1 (stating that obstruction enhancement applies
to obstructive conduct “with respect to the investigation . . . of the instant offense of
conviction”). Even assuming that Longoria was unaware of the federal investigation
when he attempted to escape, “[t]his distinction is irrelevant” since the state
investigation, of which Longoria was aware, “involved a closely related offense.”

      2
       Section 3C1.1 of the guidelines has been amended several times since we
decided Ball and Brown. None of these amendments, however, upset their holdings
on the issue of conduct that obstructs both state and federal investigations and/or
proceedings.


                                          -4-
Brown, 461 F.3d at 1072. Here, both the federal and the state investigations centered
on Longoria’s use of counterfeit checks. More specifically, the federal investigation
produced a nine-count indictment for possession of a counterfeit check on nine
occasions throughout May, June, and July 2011. Similarly, the state investigation
stemmed from Longoria’s use of a counterfeit check on July 14, 2011. As in Brown,
the state investigation into Longoria’s conduct “involved a closely related offense.”
See id. Thus, regardless of whether Longoria knew of the federal investigation into
his conduct, the district court properly imposed the two-level sentencing enhancement
pursuant to § 3C1.1.

      For the foregoing reasons, we affirm the district court’s application of the
obstruction of justice enhancement.3
                        ______________________________




      3
        Longoria also filed two pro se briefs and a pro se motion to “enforce appellant
to prevail on his pro se supplemental brief.” Since Longoria was represented by
counsel on appeal, we ordinarily do not consider these submissions. See, e.g.,
Howard v. Caspari, 99 F.3d 895, 898 (8th Cir. 1996). Nevertheless, we have
considered the arguments raised in Longoria’s pro se submissions, and we conclude
that they are uniformly without merit. See United States v. Brewer, 624 F.3d 900, 909
n.7 (8th Cir. 2010). We also deny defense counsel’s motion to withdraw. Counsel
may renew his motion after informing Longoria about his option to petition for
rehearing and about the procedures for petitioning the Supreme Court for certiorari,
in compliance with Part V of our plan to implement the Criminal Justice Act. See
United States v. Smith, 410 F.3d 426, 432 n.6 (8th Cir. 2005).


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