                                                                              F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               APR 18 1997
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee.

 v.                                                  Case No. 96-4115

 DONALD KEITH AVERILL,                               (D.C. 2:96-CV-336-S)
                                                     (District of Utah)
               Defendant-Appellant,




                             ORDER AND JUDGMENT*


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has unanimously

determined that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.




        * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Defendant Donald Keith Averill appeals the district court’s denial of his motion

under 28 U.S.C. § 2255 to vacate and set aside his sentence on the ground that he

received ineffective assistance of counsel. Mr. Averill points to his counsel’s failure to

object to a two-level sentencing enhancement for obstruction of justice. We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.



                                   I. BACKGROUND

       Mr. Averill was sentenced to 97 months imprisonment after pleading guilty to an

information charging him with distributing cocaine in violation of 21 U.S.C. § 841(a)(1).

The district court adopted a two-level enhancement under United States Sentencing

Guideline (“USSG”) § 3C1.1 because Mr. Averill had failed to appear for trial on a prior

indictment. The indictment was dismissed without prejudice after Mr. Averill failed to

appear. After he later surrendered, the government filed the information under which Mr.

Averill was ultimately sentenced, charging some of the same conduct under the same

statute as in the indictment.



                                    II. DISCUSSION

       We review claims of ineffective assistance of counsel de novo. See United States

v. Lopez, 100 F.3d 113, 118 (10th Cir. 1996). To prevail, Mr. Averill must show that his

counsel’s performance fell below an objective standard of reasonableness, and that his


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counsel’s deficient performance was prejudicial. See Strickland v. Washington, 466 U.S.

668, 687-88, 694 (1984); Lopez, 100 F.3d at 117.

       Mr. Averill claims his counsel was derelict in failing to object to the enhancement

because USSG § 3C1.1 only permits enhancements for obstruction of justice as to “the

instant offense.” USSG Manual § 3C1.1 (1995). Mr. Averill notes that he did not

obstruct justice as to the information under which he was sentenced; rather, he failed to

appear for trial on the indictment, which was subsequently dismissed, and under which he

was not sentenced.

       This argument is without merit. We have stated that the “instant offense” language

of § 3C1.1

       enunciates a nexus requirement that must be met to warrant an adjustment.
       This requirement is that the obstructive conduct, which must relate to the
       offense of conviction, must be undertaken during the investigation,
       prosecution, or sentencing. Obstructive conduct undertaken prior to an
       investigation, prosecution, or sentencing; prior to any indication of an
       impending investigation, prosecution, or sentencing; or as regards a
       completely unrelated offense, does not fulfill this nexus requirement.

United States v. Gacnik, 50 F.3d 848, 852 (10th Cir. 1995). In this case, the nexus

requirement is clearly satisfied: The indictment encompassed the charges later contained

in the information. Thus, when Mr. Averill failed to appear for trial, he obstructed the

prosecution of charges for which he was later sentenced. As the Seventh Circuit has

stated: “It is difficult to imagine conduct that more clearly interferes with the

administration of justice than a defendant’s failure to be present. When the disposition of



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the charges cannot proceed until the defendant’s presence is secured . . . there is

obstruction of justice.” United States v. Teta, 918 F.2d 1329, 1335 (7th Cir. 1990).

       Thus, it is of no significance that Mr. Averill failed to appear for trial on one

charging document and was later sentenced under another. Indeed, the only reason a

second charging document had to be filed is that Mr. Averill’s flight forced the dismissal

of the first document under the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-3174.

Under these circumstances, it would have been unjust for the district court to deny the

enhancement for obstruction of justice; doing so would have allowed Mr. Averill to

benefit from having put the government to the expense of refiling charges against him.

       Because the enhancement was appropriate, we cannot say that counsel’s failure to

object to it “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at

688. Even if counsel’s performance had been deficient, we could not say that it was

prejudicial: Mr. Averill has not shown that “counsel’s . . . performance rendered the

proceeding ‘fundamentally unfair or unreliable.’” United States v. Kissick, 69 F.3d 1048,

1055 (10th Cir. 1995) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)), cert.

denied, 117 S.Ct. 1008 (1997).



                                   III. CONCLUSION

       Accordingly, because Mr. Averill has failed to show deficient performance by

counsel, or prejudice in the outcome of the proceedings, the judgment of the district court

is AFFIRMED.

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The mandate shall issue forthwith.

                                         Entered for the Court,



                                         Robert H. Henry
                                         Circuit Judge




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