                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          FEB 17 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 98-7072
 v.
                                                   (D.C. No. 97-CR-9-S)
                                                       (E. D. Okla.)
 RANDY LEE HURD,
 aka Randy Hurd,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

      Randy Lee Hurd was arrested after delivering approximately ten pounds of

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
methamphetamine and was charged in an eight-count indictment with numerous

federal drug violations. He entered into a plea bargain under which he pled guilty

to one count of possession with intent to distribute methamphetamine and the

government dismissed the remaining counts. Mr. Hurd was released on bond

pending completion of the presentence report and he failed to appear for

sentencing. He was apprehended and returned for sentencing several months

later.

         In sentencing Mr. Hurd, the district court awarded him a two-level

reduction under U.S.S.G. § 5C1.2, and a three-level reduction for acceptance of

responsibility. The court imposed a two-level enhancement for obstruction of

justice based on Mr. Hurd’s flight prior to sentencing, and denied his request for a

downward departure. Mr. Hurd was sentenced to 168 months, the lowest possible

sentence allowed by the applicable guideline range.

         Mr. Hurd’s attorney filed a notice of appeal 1 and subsequently filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967). Anders holds that if after




        Mr. Hurd’s appeal was filed one day late. A defendant such as Mr. Hurd,
         1

“who filed his notice of appeal within the Rule 4(b) thirty-day extension period
may obtain relief by showing excusable neglect notwithstanding his failure to file
a motion seeking such relief within that same time frame.” United States v.
McMillan, 106 F.3d 322, 324 (10th Cir. 1997). Mr. Hurd filed his notice of
appeal within the thirty-day extension period and the district court subsequently
determined that excusable neglect was shown. Accordingly, we have jurisdiction
over this appeal.

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conscientious examination counsel finds a case to be wholly frivolous, he should

so advise the court and request permission to withdraw. Counsel must in addition

submit to both the court and his client a brief referring to anything in the record

arguably supportive of the appeal. The client may then raise any points he

chooses, and the appellate court thereafter undertakes a complete examination of

all the proceedings and decides whether the appeal is wholly frivolous. If it so

finds, it may grant counsel’s request to withdraw. See id. at 744.

      In his Anders brief, counsel presents two possible points: the district

court’s imposition of an upward adjustment for obstruction of justice and the

court’s denial of Mr. Hurd’s motion for a downward departure. Counsel states his

opinion that the appeal presents no non-frivolous issues and requests leave to

withdraw as counsel. Mr. Hurd has not filed a pro se brief in response.

Accordingly, we turn to an examination of the proceedings to determine if this

appeal is wholly frivolous.

      Under U.S.S.G. § 3C1.1, a defendant’s offense level is increased two levels

if he has obstructed justice. The commentary to that guideline includes as an

example of obstructive conduct “willfully failing to appear, as ordered, for a

judicial proceeding.” Id. comment. (n.4(e)). See also United States v. St. Julian,

922 F.2d 563, 571 (10th Cir. 1990) (failure to appear for scheduled sentencing

hearing justified imposition of enhancement for obstruction of justice). It is


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undisputed that Mr. Hurd willfully fled the jurisdiction after his release on bond

and willfully failed to appear for his scheduled sentencing hearing. Accordingly,

we see no error in the district court’s imposition of an enhancement for

obstruction of justice.

         The district court refused to grant Mr. Hurd a downward departure. In so

doing, the court clearly recognized that it had the discretion to depart downward

but declined to do so. Because the court acknowledged its authority to grant such

a departure, we have no jurisdiction to review its decision refusing to exercise

that authority. See United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir.

1994).

         After review of the entire proceedings, we conclude that the record

establishes no non-frivolous ground for appeal. The judgment is therefore

AFFIRMED and counsel’s motion to withdraw is GRANTED.

                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Chief Judge




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