     14-2409-cr
     United States v. Francis

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 7th day of May, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PETER W. HALL,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-2409-cr
16
17       BLAKE FRANCIS,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        JAY S. OVSIOVITCH (Robert G.
22                                             Smith, on the brief), Federal
23                                             Public Defender’s Office for the
24                                             Western District of New York,
25                                             Rochester, New York.
26
27       FOR APPELLEE:                         STEPHAN J. BACZYNSKI, for
28                                             William J. Hochul, Jr., United

                                                  1
 1                              States Attorney for the Western
 2                              District of New York, Buffalo,
 3                              New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Western District of New York (Larimer, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Blake Francis appeals from the judgment of the United
13   States District Court for the Western District of New York
14   (Larimer, J.), sentencing him to a 156-month term of
15   imprisonment for conspiring to distribute narcotics. We
16   assume the parties’ familiarity with the underlying facts,
17   the procedural history, and the issues presented for review.
18
19        In May 2008, a grand jury charged Francis with one
20   count of conspiring to distribute 1,000 kilograms or more of
21   marijuana, in violation of 21 U.S.C. § 846, and one count of
22   firearms possession in furtherance of the marijuana
23   conspiracy, in violation of 18 U.S.C. § 924(c)(1), as well
24   as forfeiture counts. Pursuant to a plea agreement, Francis
25   pleaded guilty to the conspiracy count only,1 and sentencing
26   was scheduled for February 2010.
27
28        Francis was permitted to remain at liberty pending
29   sentencing, and absconded. A bench warrant was issued, and
30   Francis was captured in 2014 following a high-speed chase.
31   At sentencing, Francis argued that, notwithstanding his
32   willful flight and attempt to elude capture, he was entitled
33   to a two-level reduction for acceptance of responsibility
34   under § 3E1.1 of the U.S. Sentencing Guidelines
35   (“Guidelines”), based solely on his guilty plea. See
36   U.S.S.G. § 3E1.1. He conceded, however, that the district
37   court could properly apply a two-level enhancement for
38   obstruction of justice in light of his flight. See id.
39   § 3C1.1.
40

         1
              The agreement further required Francis to admit
     that the firearms he possessed in furtherance of the
     conspiracy were subject to forfeiture.
                                  2
 1        The district court applied the enhancement for
 2   obstruction of justice, but without the reduction for
 3   acceptance of responsibility, reasoning that the latter was
 4   inapplicable in light of the former. See U.S.S.G. § 3E1.1
 5   app. note 4. The court calculated the advisory Guidelines
 6   range to be 188 to 235 months, and imposed a sentence of 156
 7   months.
 8
 9        On appeal, Francis argues that the court’s Guidelines
10   calculation was erroneous and that the below-Guidelines
11   sentence was substantively unreasonable. We review
12   sentences for “both procedural error and substantive
13   reasonableness.” United States v. Tutty, 612 F.3d 128, 130
14   (2d Cir. 2010). Procedural error encompasses, among other
15   things, “failing to calculate (or improperly calculating)
16   the Guidelines range,” and a sentence is substantively
17   unreasonable if it “cannot be located within the range of
18   permissible decisions.” Id. at 131 (internal quotation
19   marks omitted).
20
21        The district court did not commit procedural error by
22   declining to apply the adjustment for acceptance of
23   responsibility under § 3E1.1. As the court observed, that
24   adjustment is generally unavailable when a defendant has
25   engaged in conduct resulting in a § 3C1.1 enhancement for
26   obstruction of justice. See U.S.S.G. § 3E1.1 app. note 4;
27   United States v. Loeb, 45 F.3d 719, 722 (2d Cir. 1995).
28   While the Guidelines leave open the possibility of
29   “extraordinary cases in which adjustments under both
30   §§ 3C1.1 and 3E1.1 may apply,” U.S.S.G. § 3E1.1 app. note 4,
31   Francis has identified no such extraordinary circumstances
32   here. The fact of pleading guilty is not an extraordinary
33   circumstance. See United States v. Savoca, 596 F.3d 154,
34   159 (2d Cir. 2010). Moreover, it is “well-established that
35   by willfully failing to appear for sentencing, a defendant
36   fails to accept responsibility for the offense.” Loeb, 45
37   F.3d at 722. We also find no merit in the argument that the
38   below-Guidelines sentence imposed in this case was
39   substantively unreasonable.
40




                                  3
1        For the foregoing reasons, and finding no merit in
2   Francis’s other arguments, we hereby AFFIRM the judgment of
3   the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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