                           NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 16a0045n.06

                                                  No. 15-1177


                              UNITED STATES COURT OF APPEALS                                          FILED
                                   FOR THE SIXTH CIRCUIT                                      Jan 25, 2016
                                                                                          DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                                         )
                                                                  )
        Plaintiff-Appellee,                                       )
                                                                  )        ON APPEAL FROM THE
v.                                                                )        UNITED STATES DISTRICT
                                                                  )        COURT FOR THE WESTERN
PEDRO ANDRES KOBASIC,                                             )        DISTRICT OF MICHIGAN
                                                                  )
        Defendant-Appellant.                                      )                      OPINION
                                                                  )
                                                                  )



        BEFORE:           GRIFFIN and STRANCH, Circuit Judges; GWIN, District Judge.*

        JAMES S. GWIN, District Judge.

        Defendant-Appellant Pedro Andres Kobasic appeals his 87-month, within-Guidelines

sentence following a guilty plea. At sentencing, both Kobasic and the government agreed that

Kobasic should receive a two-level increase in his Offense Level calculation for obstruction of

justice under United States Sentencing Guidelines § 3C1.1. And while both parties agreed with

the obstruction enhancement, both also agreed that Kobasic should be eligible for a three-level

§ 3E1.1 decrease for acceptance of responsibility

        At sentencing, the district court applied the obstruction of justice increase but gave no

reduction for acceptance of responsibility. In denying an acceptance of responsibility reduction,

the district court justified the denial because Kobasic had fled to Mexico after his indictment but

*
 The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by
designation.
No. 15-1177
U.S. v. Kobasic

before his eventual guilty plea. The district court found the flight was inconsistent with accepting

responsibility. In other words, the district court found that Kobasic’s case was not an

“extraordinary case” deserving of both the obstruction of justice increase and acceptance of

responsibility decrease under Guideline § 3E1.1, Application Note 4. Kobasic appeals only this

refusal to give him an acceptance of responsibility adjustment. For the following reasons, this

Court AFFIRMS Kobasic’s sentence.

                            I.       FACTUAL BACKGROUND

       On April 13, 2010, a federal grand jury indicted Kobasic and several co-defendants. R. 1,

Indictment at 1, PageID 1. The indictment charged the defendants with conspiracy to distribute

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

§§ 846, 841(a)(1), and 841(b)(1)(B)(vii). Kobasic was released on personal recognizance bond

pending trial. R. 16, Bond Order at 1, PageID 33.

       Kobasic entered into plea negotiations with the government. The district court scheduled

a change of plea hearing in Kobasic’s case for April 19, 2011. R. 126, Notice of Hr’g at 1,

PageID 338. However, Kobasic failed to appear at the hearing and instead fled the country and

settled in Sonora, Mexico. A warrant for Kobasic’s arrest was issued. R. 179-1, Arrest Warrant at

1, PageID 492.

       In May 2014, approximately three years after the original scheduled change of plea

hearing, Mexican law enforcement authorities, working with federal authorities, discovered

Kobasic living in Sonora and returned him to the United States. See id. On May 20, 2014,

Federal agents arrested Kobasic and brought him back to the Western District of Michigan to

proceed with his case. See id.; R. 179-2, Magistrate Judge’s Min.s at 1, PageID 494.




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       Kobasic later admitted that he intended not to return and only returned because the

authorities found him. R. 230, PSR at 15, PageID 708.

       On April 16, 2014, a grand jury issued a superseding indictment charging Kobasic with

failing to appear in violation of 18 U.S.C. § 3146. Indictment, United States v. Kobasic, 2:14-cr-

00017-RHB (W.D. Mich. 2014). These charges joined the pending drug conspiracy charges from

the 2010 indictment.

       Kobasic quickly reentered plea negotiations with the government. On October 27, 2014,

Kobasic filed his amended plea agreement with the district court. In that agreement, Kobasic

agreed to plead guilty to conspiracy to distribute and possess with intent to distribute

50 kilograms or more of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C).

R. 206, Amended Plea Agreement at 1–2, PageID 584–85. In exchange, the government agreed

to move for the dismissal of several 2010 indictment charges and the 2014 indictment bond

jumping charge. Id. at 3, PageID 586.

       With the plea, the government also agreed not to oppose Kobasic’s request for the

§ 3E1.1(a) acceptance of responsibility decrease and to inform the district court that Kobasic

assisted authorities in his own prosecution. Id. On November 3, 2014, Kobasic pleaded guilty to

these charges. R. 212, R. + R. at 1, PageID 600, adopted by R. 214, Order at 1, PageID 608.

       On January 29, 2015, the probation department distributed Kobasic’s Final Presentence

Investigation Report (“PSR”). The PSR recommended that Kobasic receive the two-level

obstruction of justice increase due to Kobasic’s three-year flight. R. 230, PSR at 16–17, PageID

709–710. The PSR also recommended the three-level acceptance of responsibility decrease be

denied. Id.




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       Neither party objected to the obstruction of justice increase, but Kobasic objected to the

Probation Department’s recommendation to deny Kobasic the three-level decrease for

acceptance of responsibility. R. 231, Def.’s Sentencing Mem. at 1–6, PageID 722–27. The

government agreed with Kobasic and asked the court to give Kobasic the acceptance of

responsibility decrease. R. 232, Govt’s Sentencing Mem. at 1–2, Page ID 729–30.

       On February 9, 2015, the district court sentenced Kobasic. R. 238, J. at 1, PageID 741.

The district court denied the three-level acceptance of responsibility decrease despite Kobasic’s

objection and the government’s position. R. 241, Sentencing Tr. at 10–13, PageID 761–64. The

district court calculated Kobasic’s total Offense Level as 28 with a Criminal History category of

II, resulting in an advisory range of incarceration from 87 to 108 months. Id. Had the district

court applied the three-level acceptance of responsibility decrease, Kobasic’s advisory guidelines

range would have been 63 to 78 months of incarceration. U.S.S.G. Sentencing Table (2014). The

district court sentenced Kobasic to 87 months of incarceration. R. 241, Sentencing Tr. at 26,

PageID 777.

       In support of the Offense Level calculation, including the decision not to apply the

acceptance of responsibility decrease, the district court found that Kobasic’s case was unlike

many of the cases in which defendants receive both the obstruction of justice increase and the

acceptance of responsibility decrease. In distinguishing those cases, the district court emphasized

the length of Kobasic’s flight, emphasized that Kobasic fled the country as opposed to fleeing

within the United States, and emphasized the involuntary nature of Kobasic’s return to the

United States. Id. at 10–12, PageID 761–63.

       The district court acknowledged that Sixth Circuit precedent favors applying the

acceptance of responsibility adjustment when a defendant accepts responsibility after the


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U.S. v. Kobasic

obstructing justice conduct. Id. at 10, PageID 761 (“[B]oth counsel adequately recite the law,

[United States v.] Robinson[, 390 F.3d 853, 888 (6th Cir. 2004)] and the other cases, indicating

that it is unusual to tack on two points for obstruction of justice and then deny acceptance of

responsibility when the acceptance of responsibility is after the obstruction. This case is

different, though.”). The district court concluded that the circumstances of Kobasic’s flight

outweighed that Kobasic’s post-flight acceptance of responsibility.

         On appeal, Kobasic argues that the district court erred when it did not apply the

“guidelines reduction for acceptance of responsibility under § 3E1.1, because his early

obstructive conduct—his pre-plea flight—did not undermine the sincerity of his later, steadfast

acceptance of responsibility.” Appellant Br. at 12. In response, appellee United States argues that

“[t]he district court’s decision was not clearly erroneous. The court considered factors set forth in

Application Notes 1 and 3 of U.S.S.G. § 3E1.1, as well as United States v. Gregory, 315 F.3d

637 (6th Cir. 2003), and was swayed by . . . Defendant’s post-indictment conduct.” Appellee Br.

at 10.

         Finding the district court’s denial of adjustment for acceptance of responsibility was

within the district court’s discretion, the Court affirms the sentence imposed by the district court.

                             II.       STANDARD OF REVIEW

         This Court reviews a district court judge’s decision to deny the acceptance of

responsibility adjustment under § 3E1.1 for clear error. United States v. Genschow, 645 F.3d

803, 813 (6th Cir. 2011). This Court gives deference to the district court’s decision because that

court “is in a unique position to evaluate a defendant’s acceptance of responsibility.” U.S.S.G.

§ 3E1.1 cmt. n.5.




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       A “defendant bears the burden of demonstrating acceptance of responsibility” within the

meaning of U.S.S.G. § 3E1.1. United States v. Wilson, 197 F.3d 782, 786 (6th Cir. 1999).

       III. DISCUSSION

       Under U.S.S.G. § 3C1.1, a defendant receives a two-level obstruction of justice increase

in his or her Offense Level calculation

              [i]f (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[.]

       The Guidelines consider “escaping or attempting to escape from custody before trial or

sentencing; or willfully failing to appear, as ordered, for a judicial proceeding” to warrant the

obstruction of justice increase. U.S.S.G. § 3C1.1 cmt. n.4.

       Under § 3E1.1, a defendant is eligible for a two- or three-level decrease in his or her

Offense Level calculation “[i]f the defendant clearly demonstrates acceptance of responsibility

for his offense[.]” Application Note 1 to § 3E1.1 includes a non-exhaustive list of factors for

district court consideration when deciding whether to apply the decrease. These include:

              (A) truthfully admitting the conduct comprising the offense(s) of
       conviction, and truthfully admitting or not falsely denying any additional relevant
       conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct)
       ...
              (B) voluntary termination or withdrawal from criminal conduct or
       associations;
              ...
              (D) voluntary surrender to authorities promptly after commission of the
       offense;
              . . . and
              (H) the timeliness of the defendant’s conduct in manifesting the
       acceptance of responsibility.


       U.S.S.G. § 3E1.1 cmt. n.1.


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       The Guidelines account for cases in which a defendant may be eligible for both the

obstruction of justice increase and the acceptance of responsibility decrease. Application Note 4

to § 3E1.1 states:

              Conduct resulting in an enhancement under § 3C1.1 (Obstructing or
       Impeding the Administration of Justice) ordinarily indicates that the defendant has
       not accepted responsibility for his criminal conduct. There may, however, be
       extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may
       apply.

       The question on appeal then is whether the district court clearly erred in finding that

Kobasic’s case was not “extraordinary,” but rather a case in which Kobasic failed to demonstrate

acceptance of responsibility.

       The district court did not clearly err when it decided that Kobasic was entitled to the

acceptance of responsibility offense level reduction. See United States v. Starks, 64 F. App’x

501, 502 (6th Cir. 2003) (district court did not err in denying acceptance of responsibility

decrease when defendant escaped from pre-trial detention and pleaded guilty after apprehension).

The district court carefully considered the nature of Kobasic’s post-indictment conduct and

concluded that Kobasic had not accepted responsibility for his prior criminal conduct.

       The district court was entitled to consider all of Kobasic’s post-indictment activity in

deciding not to apply the acceptance of responsibility decrease. United States v. Harper,

246 F.3d 520, 526–27 (6th Cir. 2001), overruled on other grounds by United States v. Leachman,

309 F.3d 377 (6th Cir. 2002). The circumstances the district court considered included: 1) length

of Kobasic’s flight—over three years; 2) Kobasic’s destination—Sonora, Mexico; 3) the

involuntary nature of Kobasic’s return to the Western District of Michigan; 4) and especially




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U.S. v. Kobasic

Kobasic’s admission that he never would have returned to the district had he not been

apprehended.

       These flight circumstances indicate that Kobasic did not have a “voluntary termination or

withdrawal from criminal conduct or associations[,]” a “voluntary surrender to authorities

promptly after commission of the offense[,]” or a timely acceptance of responsibility measured

against the indictment date. U.S.S.G. § 3E1.1 cmt. n.1. The district court balanced these

circumstances against the fact that Kobasic “truthfully admitt[ed] the conduct comprising the

offense(s)[,]” id., and other cooperative conduct on his return from Mexico in 2014. The district

court then concluded that Kobasic had not accepted responsibility within the meaning of § 3E1.1.

       Sixth Circuit precedent favors applying the acceptance of responsibility reduction in

cases where the obstruction occurs before a defendant is aware of the government’s interest in

his or her affairs. See Gregory, 315 F.3d at 641 (finding that the defendant was entitled to the

acceptance of responsibility reduction when “[a]ll of his obstructive conduct predated his

indictment” and remanding for resentencing); United States v. Tilford, 224 F.3d 865, 868 (6th

Cir. 2000) (same).

       The district court also noted cases that denied the acceptance of responsibility reduction

where the obstruction happens after a defendant’s initial acceptance of responsibility, for

example where a defendant flees the jurisdiction after conviction but before sentencing. See

Robinson, 390 F.3d at 866.

       Kobasic’s case does not fall neatly into either category of cases. Unlike Robinson,

Kobasic fled the country after indictment but before his originally-scheduled guilty plea,

meaning that he admitted guilt after his obstructive conduct. However, unlike Gregory and




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Tilford, Kobasic fled after indictment. The district court could properly consider Kobasic’s

flight in applying § 3E1.1.

       The district court did not clearly err when it found that Kobasic’s flight was inconsistent

with his later acceptance of responsibility. Therefore, the district court did not clearly err when it

declined to apply the three-level acceptance of responsibility decrease after considering the

circumstances of Kobasic’s flight.

                                          IV. CONCLUSION

       For the foregoing reasons this Court AFFIRMS Kobasic’s sentence.




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