                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                             JANUARY 16, 2007
                                 No. 06-13485                THOMAS K. KAHN
                             Non-Argument Calendar               CLERK
                           ________________________

                      D. C. Docket No. 05-00134-CR-3-LAC

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                     versus

ALFREDO GARCIA,
a.k.a. Alfredo Garcia-Perez,

                                                      Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         _________________________

                               (January 16, 2007)


Before DUBINA, BLACK and CARNES, Circuit Judges.

PER CURIAM:
      Alfredo Garcia appeals his conviction and sentence for conspiracy to

distribute and possess with intent to distribute marijuana, in violation of 21 U.S.C.

§ 846. Garcia asserts there was insufficient evidence to support his conviction

because the only evidence against him was the testimony of a co-conspirator, Jose

Guajardo-Reyes, Jr., who testified in hope of receiving a more lenient sentence.

Garcia further asserts the district court erred in applying the two-point

enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1. Garcia

contends the record does not support a conclusion he escaped or attempted to

escape from custody prior to sentencing, because he was mistakenly released from

custody after his conviction. We affirm Garcia’s conviction and sentence.

                                  I. DISCUSSION

A. Sufficiency of evidence

      Garcia asserts the only witness against him was Guajardo, who admitted to

three prior convictions and was in a plea agreement with the Government to testify

against Garcia in the hopes of receiving a more lenient sentence. Garcia contends

Guajardo’s testimony was insufficient to convict him of conspiracy to distribute

and possess with intent to distribute marijuana.

      We review de novo whether sufficient evidence supports a conviction,

inquiring whether, after viewing the evidence in the light most favorable to the



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government, any reasonable jury could have found the essential elements of a

crime beyond a reasonable doubt. United States v. Charles, 313 F.3d 1278, 1284

(11th Cir. 2002). Determinations of the credibility of witnesses fall within the

exclusive province of the jury and may not be revisited unless the testimony is

"incredible as a matter of law." United States v. Calderon, 127 F.3d 1314, 1325

(11th Cir.1997). Testimony is incredible as a matter of law if it is "unbelievable on

its face" or includes "facts that [the witness] physically could not have possibly

observed or events that could not have occurred under the laws of nature." Id.

      Guajardo’s testimony was not incredible as a matter of law. He testified to

matters he observed, and, in addition, the jury was aware of both Guajardo’s

criminal history and his plea agreement with the Government. Moreover, Garcia’s

own post-arrest statements bolstered Guajardo’s testimony that it was Garcia who

introduced Guajardo to Frank Enriquez-Pina for the purpose of obtaining 200

pounds of marijuana and was present during the negotiations between Guajardo

and Enriquez for the purchase of the drugs. Garcia’s own statements also

corroborated Guajardo’s testimony that Garcia (1) arranged for transportation from

Texas to Pensacola, (2) traveled with Guajardo to Pensacola, and (3) met with and

spoke to Enriquez about the delivery of drugs. It was not unreasonable for the jury




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to find Guajardo’s testimony was credible because it was corroborated by other

evidence.

      In order to sustain a conspiracy conviction under § 846, the Government

must have offered sufficient evidence to prove, beyond a reasonable doubt (1) an

illegal agreement existed to possess with intent to distribute marijuana; (2) Garcia

knew of it; and (3) Garcia knowingly and voluntarily joined the agreement. See

Charles, 313 F.3d at 1284. Based on Guajardo’s testimony and Garcia’s own

statements, there was sufficient evidence to prove an illegal agreement existed,

Garcia knew of the essential nature of it, and was a knowing and willing

participant. Thus, there was sufficient evidence to convict Garcia of conspiracy to

distribute and possess with intent to distribute marijuana

B. Obstruction of justice

      Garcia asserts the record does not support a conclusion that he escaped or

attempted to escape from custody prior to sentencing. He asserts he was

(1) inadvertently released by Escambia County Jail officials; (2) he returned to San

Antonio, Texas, and contacted his attorney; (3) counsel for Garcia made several

phone calls to the U.S. Marshals Office in Pensacola, but was told that Garcia was

still in their custody, and (4) after Garcia and his girlfriend married, the U.S.




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Marshals Office was informed where Garcia could be located, and he was

subsequently arrested without incident.

       When a district court imposes an enhancement for obstruction of justice, we

review the district court's findings of fact findings for clear error and its application

of the Sentencing Guidelines to the facts de novo. United States v. Uscinski, 369

F.3d 1243, 1246 (11th Cir. 2004). According to § 3C1.1, a two-level enhancement

is proper, if "the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the course of the

investigation, prosecution, or sentencing of the instant offense of conviction."

U.S.S.G. § 3C1.1.1

       The Commentary provides “a non-exhaustive list of examples of the types of

conduct to which this adjustment applies." U.S.S.G. § 3C1.1, comment. (n.4). An

example of the type of conduct for which the enhancement applies is "escaping or

attempting to escape from custody before trial or sentencing; or willfully failing to

appear, as ordered, for a judicial proceeding." Id., comment. (n.4(e)). The

Commentary also provides a non-exhaustive list of the types of conduct that do not

warrant an application of the enhancement. Id., comment. (n.5). An example from

this list includes "avoiding or fleeing from arrest," unless the defendant "recklessly


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          Garcia was sentenced under the November 1, 2005 version of the Guidelines manual.
Thus, all citations of the Sentencing Guidelines refer to the 2005 version.

                                              5
created a substantial risk of death or serious bodily injury to another person in the

course of fleeing from a law enforcement officer.” U.S.S.G. § 3C1.1, comment.

(n.5(d)); U.S.S.G. § 3C1.2. "Obstructive conduct can vary widely in nature, degree

of planning, and seriousness," and the Commentary instructs performing a

comparison of the conduct at hand to the conduct in the non-exhaustive lists in

Application Notes Four and Five to "assist the court in determining whether

application of this adjustment is warranted in a particular case." U.S.S.G. § 3C1.1,

comment. (n.3).

      The district court did not err in enhancing Garcia’s sentence for obstruction

of justice under § 3C1.1. The court was understanding of Garcia’s travel to Texas

and his subsequent marriage, but found his failure to turn himself in afterwards

inexcusable. The court found that his conduct created unnecessary risk when he

caused the marshals to go into a house after him. Although Garcia argues his

behavior was not per se escaping, the Commentary to the provision specifically

states the examples in Application Notes Four and Five are “non-exhaustive” and

when determining whether to apply the provision, the court should compare the

type of behavior at hand to the type of behavior either warranting or not warranting

an enhancement. Although it is true Garcia did not escape from custody, he did

not turn himself back over to authorities for 15 days while he remained at large



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after his release. In addition, even after arrangements were made for his surrender,

he continued to elude authorities for several more days. It was only after the

marshals placed surveillance on his aunt’s home that he was finally apprehended.

Garcia’s post-conviction conduct caused the Government to take the additional

steps of tracking him down, placing surveillance on his aunt’s home, and re-

apprehending him, and the conduct is the type of conduct that warrants application

of the adjustment.

                                II. CONCLUSION

      Sufficient evidence supports Garcia’s conviction. Additionally, the district

court did not err in applying the enhancement for obstruction of justice. We affirm

Garcia’s conviction and sentence.

      AFFIRMED.




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