                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 06-10760                SEPTEMBER 12, 2006
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                    D. C. Docket No. 97-00243-CR-2-1

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                  versus

MAURICO JUAQUIN ORTIZ,

                                                     Defendant-Appellant.


                       ________________________

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

                            (September 12, 2006)

Before DUBINA, HULL and FAY, Circuit Judges.

PER CURIAM:
      Maurico Juaquin Ortiz appeals his 135-month sentences for conspiracy to

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

§§ 841(a)(1) and 846, and attempting to possess with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 846. On appeal, Ortiz first contends

that the district court erred in applying a two-level enhancement for obstruction of

justice, under U.S.S.G § 3C1.1, because he fled the jurisdiction due to concerns

over his family.

      We review a district court’s factual findings regarding the imposition of an

enhancement for obstruction of justice for clear error and the district court’s

application of the factual findings to the guidelines de novo. United States v.

Massey, 443 F.3d 814, 818 (11th Cir. 2006). The guidelines provide that the

district court is authorized to assess a two-level enhancement 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 (2005). The

commentary to § 3C1.1 provides a non-exhaustive list of examples of the types of

conduct to which the enhancement applies, including “willfully failing to appear,

as ordered, for a judicial proceeding.” U.S.S.G. § 3C1.1, comment. (n.4(e))

(2005).



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      Upon review of the record and the sentencing transcript, and upon

consideration of the briefs of the parties, we discern no reversible error.

      Here, the district court properly determined that Ortiz willfully failed to

appear at his arraignment, and therefore, the application of the two-level

enhancement for obstruction of justice under § 3C1.1 was appropriate. The record

reflects that several family members testified that Ortiz left the jurisdiction in 1997

due to concerns over his family’s health and safety. Having considered this

testimony, the district court found that the defendant did not have to flee the

jurisdiction in order to provide for the safety of his family. Therefore, the district

court did not commit clear err in applying the § 3C1.1 enhancement because Ortiz

willfully failed to appear.

      Ortiz next argues that because the government declined to file a § 5K1.1

motion for downward departure, the district court effectively punished him twice

for leaving the jurisdiction because the court also enhanced his sentence for

obstruction of justice. The sentencing guidelines state in pertinent part that

“[u]pon motion of the government stating that the defendant has provided

substantial assistance in the investigation or prosecution of another person who has

committed an offense, the court may depart from the guidelines.” U.S.S.G. § 5K1.1

(2005). “[T]he decision to file a § 5K1.1 motion for downward departure from the



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[s]entencing [g]uidelines . . . lies within the sound discretion of the [g]overnment.”

United States v. Alvarez, 115 F.3d 839, 841 (11th Cir. 1997) . The Supreme Court

has made clear that “§ 5K1.1 . . . gives the Government a power, not a duty, to file

a motion when a defendant has substantially assisted.” Wade v. United States, 504

U.S. 181, 185, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992). In the absence of a

plea agreement, judicial review of the government’s failure to file a substantial

assistance motion is limited to unconstitutional motive, and we have noted there is

a “reluctance to enter into the prosecutorial discretion arena of the executive

branch.” United States v. Forney, 9 F.3d 1492, 1501, 1503 n.4. (11th Cir. 1993).

We have also previously held that when the government has failed to file a

substantial assistance motion, any assistance the defendant might have provided

the government is not a permissible ground for a downward departure in

calculating an advisory guideline range. United States v. Crawford, 407 F.3d 1174,

1182 (11th Cir. 2005).

      Here, the government’s decision to file a motion under U.S.S.G. § 5K1.1

rested solely with the prosecutor and not with the district court. But Ortiz contends

it was “unreasonable for the [district] court [to] apply the obstruction enhancement

in light of Ortiz losing the 5K reduction.” This argument ignores the fact that the

court’s application of U.S.S.G. § 3C1.1 is independent of the government’s



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decision to file a motion under § 5K1.1. Therefore, Ortiz has failed to show that

the district court clearly erred in applying the two-level enhancement for

obstruction of justice, pursuant to § 3C1.1. Accordingly, Ortiz’s sentences are

affirmed.

      AFFIRMED.




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