                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-2007
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                             Antonio Morales Chavez

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                             Submitted: May 16, 2016
                              Filed: August 15, 2016
                                  ____________

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
                              ____________

RILEY, Chief Judge.

      Antonio Morales Chavez (Morales) claims the district court1 erred in finding
he obstructed justice and did not accept responsibility for his crimes. We disagree.



      1
       The Honorable John R. Tunheim became Chief Judge of the United States
District Court for the District of Minnesota on July 1, 2015.
I.    BACKGROUND
      Morales was caught selling methamphetamine in Melrose, Minnesota, when
his buyer turned out to be a police informant. A few days later, he was charged by
complaint and released on bond. He then left for Mexico. He says he went to take
care of his mother, who had cancer and was facing surgery, and he did not tell the
authorities because he was afraid they would not let him go. That was in 2004.

      Morales returned to the United States in 2007, left again, and came back in
2008. Both times he reentered the country, he was inspected and admitted at the
border after showing his lawful permanent resident card. After his return, he lived
and worked in California, where he paid taxes and child support under his real name.

       In 2013, Morales sent his name and fingerprints to the FBI for a criminal
background check to see if he had an outstanding warrant.2 He did. A bond-
revocation hearing had been scheduled and a warrant issued for his arrest around the
time he absconded to Mexico in 2004. Morales was then detained in the Eastern
District of California and eventually transferred back to the District of Minnesota,
where he stood trial and was found guilty of conspiring to distribute, possessing with
the intent to distribute, and distributing methamphetamine, see 21 U.S.C.
§§ 841(a)(1), (b)(1), 846; see also 18 U.S.C. § 2(a) (accomplice liability).

      In determining Morales’s advisory sentence under the United States Sentencing
Guidelines (U.S.S.G. or Guidelines), the district court increased his offense level by
two levels for obstructing justice, see U.S.S.G. § 3C1.1, and refused to decrease it by
two levels for accepting responsibility, see id. § 3E1.1(a). Morales unsuccessfully

      2
       Some of the dates in the record and the parties’ briefs with respect to this
chapter of Morales’s story do not line up. As far as we can tell, the inconsistency
stems from a paragraph in the presentence investigation report that mistakenly dated
Morales’s background check to 2014 rather than 2013. We discern no actual dispute
or uncertainty about how long Morales was on the lam.

                                         -2-
contested both points. The Guidelines calculations resulted in an advisory range of
121 to 151 months in prison. The district court varied downward and sentenced
Morales to 96 months in prison and three years of supervised release. On appeal, see
28 U.S.C. § 1291 (appellate jurisdiction), Morales challenges the rulings on the two
adjustments.

II.    DISCUSSION
       With respect to the obstruction-of-justice adjustment, Morales’s argument is
not about what he did—in short, jumped bond and then lived abroad and in another
state for nearly nine years—but whether his conduct satisfies the relevant section of
the Guidelines. We review that legal question de novo. See United States v. Mashek,
406 F.3d 1012, 1017 (8th Cir. 2005).

       Guidelines § 3C1.1(1) calls for a two-level increase if “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
[defendant’s] instant offense of conviction.” Morales says his conduct was not
willful, because he left to be with his sick mother, not to interfere with the
investigation or prosecution of his case. Cf., e.g., United States v. Collins, 754 F.3d
626, 629 (8th Cir. 2014) (“In order to act willfully [for purposes of § 3C1.1], the
defendant must ‘consciously act with the purpose of obstructing justice.’” (quoting
United States v. Watts, 940 F.2d 332, 332-33 (8th Cir. 1991))). But “[a] district court
can find that a defendant consciously acts with the purpose of obstructing
justice”—that is, acts willfully—“when his ‘misconduct occurs with knowledge of
an investigation, or at least with a correct belief that an investigation is probably
underway.’” Id. at 629-30 (quoting United States v. Dierling, 131 F.3d 722, 738 (8th
Cir. 1997)). After being arrested, consenting to searches of his trailer home and car,
providing a detailed account of his activities to a police investigator, and being
charged by complaint, Morales unquestionably knew the authorities were building a
case against him. Whatever Morales’s reasons for initially going to Mexico, they do

                                         -3-
not explain staying away for years afterward. Indeed, Morales’s eventual decision
to have the FBI check for outstanding warrants demonstrates his awareness that,
notwithstanding his consistent use of his real name, his unexplained disappearance
and continued absence from Minnesota might be standing in the way of efforts to
bring him to justice.

       Morales points out that an application note to § 3C1.1 lists “willfully failing
to appear, as ordered, for a judicial proceeding” as an “example[] of the types of
conduct to which this adjustment applies.” U.S.S.G. § 3C1.1 application n.4(E)
(emphasis added). Because he left the country before being ordered to make any
appearances, Morales reasons, his conduct falls outside that provision. That may be
true, but the list of examples in the note is explicitly “non-exhaustive,” id., and we
have repeatedly upheld adjustments under § 3C1.1 for defendants who, like Morales,
did not have any proceedings scheduled when they left town.3 See, e.g., Billingsley,
160 F.3d at 507; United States v. Eagle, 133 F.3d 608, 611 (8th Cir. 1998). And the
crux of how Morales obstructed justice was not just that he skipped a particular
hearing, but that by living abroad and then resettling across the country he delayed
the resolution of his case by almost a decade. The two-level increase was justified.



      3
       We are also unpersuaded by Morales’s theory that because he had not yet been
indicted his departure for Mexico was analogous to “avoiding or fleeing from arrest,”
which another application note says generally should not trigger an offense-level
increase. See U.S.S.G. § 3C1.1 application n.5(D). We have explained that flight
“does not warrant enhancement because it is more of an initial instinctive reaction
than willful obstruction of justice” and “generally occurs without knowledge that an
investigation is underway.” United States v. Hare, 49 F.3d 447, 453 (8th Cir. 1995).
The same is not true of Morales’s conduct, so his analogy fails, and in any event his
position is foreclosed by our past decisions, see, e.g., United States v. Billingsley, 160
F.3d 502, 507 (8th Cir. 1998) (concluding “the post-arrest, pre-indictment flight of
a defendant who is not in custody falls within Section 3C1.1”); Hare, 49 F.3d at 450,
453.

                                           -4-
       As for the two-level decrease Morales sought, generally “[c]onduct resulting
in an enhancement under § 3C1.1 . . . indicates that the defendant has not accepted
responsibility for his criminal conduct.” U.S.S.G. § 3E1.1 application n.4. The
adjustment is also usually inapplicable “to a defendant who,” like Morales, “puts the
government to its burden of proof at trial by denying the essential factual elements
of guilt.” Id. § 3E1.1 application n.2. There may be “rare” exceptions to these rules
in “extraordinary cases,” id. § 3E1.1 application nn.2, 4, but Morales has not
convinced us it was a clear error for the district court not to recognize his as such a
special case. See, e.g., United States v. Muro, 357 F.3d 743, 744 (8th Cir. 2004) (per
curiam) (standard of review). Morales’s cooperation with the police both times he
was caught does not outweigh the years of obstruction he caused in between. Cf. id.
at 744-45 (upholding the denial of an adjustment because the defendant “willfully
chose the course of conduct that obstructed justice instead of choosing other options,”
“failed to take any affirmative action to confirm his acceptance of responsibility after
he fled,” and “merely provided an excuse for his flight”). And Morales’s explanation
that he felt compelled to go to trial despite acknowledging his guilt because “any plea
agreement would . . . have likely required [him] to agree that he was not entitled to
acceptance of responsibility under U.S.S.G. §3E1.1” anyway, besides being entirely
speculative, apparently rests on the premise that the only way he could plead guilty
was by entering into a plea bargain with the government, which is simply false, see,
e.g., United States v. Trevino, No. 15-1534, ___ F.3d ___, ___, 2016 WL 3844851,
at *1 (8th Cir. July 14, 2016) (guilty plea without plea agreement); see also Fed. R.
Crim. P. 11(a)(1) (“A defendant may plead . . . guilty.”).

III.  CONCLUSION
      The district court did not err in determining that the obstruction-of-justice
adjustment did apply to Morales and the acceptance-of-responsibility adjustment did
not. Morales’s sentence is affirmed.
                       ______________________________



                                          -5-
