                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                  No. 00-1653MN
                                  _____________

United States of America,                *
                                         *
             Appellee,                   * On Appeal from the United States
                                         * District Court for the
      v.                                 * District of Minnesota.
                                         *
Jeffrey Brian Martinez,                  * [To Be Published]
                                         *
             Appellant.                  *
                                    ___________

                            Submitted: November 29, 2000
                                Filed: December 12, 2000
                                    ___________

Before RICHARD S. ARNOLD, HANSEN, and BYE, Circuit Judges.
                           ___________

PER CURIAM.

      Jeffrey Brian Martinez pleaded guilty to conspiring to commit bank larceny from
automatic teller machines (ATMs), in violation of 18 U.S.C. §§ 371 and 2113(b), and
bank larceny from an ATM, in violation of 18 U.S.C. §§ 2 and 2113(b). The
presentence report recommended assessing an obstruction-of-justice enhancement and
denying an acceptance-of-responsibility reduction, because, although Martinez had
been cooperative throughout the interview process, he subsequently failed alcohol and
drug tests while under court-ordered supervision at a halfway house, he absconded
from the halfway house prior to a bond-revocation hearing, and he failed to appear for
the hearing. Over his objection at sentencing, the District Court1 denied a reduction for
acceptance of responsibility and applied an enhancement for obstruction of justice.
Martinez was sentenced to concurrent prison terms of 5 years and 5 years 11 months,
plus 3 years supervised release. He appeals, arguing the Court erred as to the
enhancement and reduction, because they were based on the same misconduct and
were not directly linked to the ATM offenses. He also contends the Court erred by not
analyzing his case to determine whether it was “extraordinary.”

       We review for clear error the District Court’s findings with respect to the
obstruction-of-justice enhancement and the acceptance-of-responsibility reduction. See
United States v. Baker, 200 F.3d 558, 562 (8th Cir. 2000) (standard of review for
enhancement); United States v. Ervasti, 201 F.3d 1029, 1043 (8th Cir. 2000) (standard
of review for reduction). Having done so, we find no error in light of Martinez’s pre-
sentencing misbehavior. See U.S.S.G. § 3C1.1, comment. (n.4(e)) (obstruction
enhancement applies to escaping from custody before sentencing, and willful failure to
appear for judicial proceeding); U.S.S.G. § 3E1.1, comment. (n.4) (conduct supporting
obstruction enhancement ordinarily indicates defendant should not receive acceptance
reduction; however, in “extraordinary cases . . . adjustments under both §§ 3C1.1 and
3E1.1 may apply”); United States v. Honken, 184 F.3d 961, 968, 970 (8th Cir.) (burden
is on defendant to establish entitlement to acceptance reduction; committing obstructive
conduct between plea and sentencing “would almost certainly” disqualify defendant
from receiving such reduction), cert. denied, 120 S. Ct. 602 (1999); United States v.
Byrd, 76 F.3d 194, 197 (8th Cir. 1996) (§ 3E1.1 does not preclude sentencing judge,
in exercise of discretion, from considering unlawful conduct unrelated to offense of
conviction in determining whether defendant qualifies for acceptance reduction); United
States v. Shinder, 8 F.3d 633, 635 (8th Cir. 1993) (defendant’s flight prior to


      1
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
                                           -2-
sentencing was “sufficient ground” both to apply obstruction enhancement and to deny
acceptance reduction).

      Accordingly, we affirm.

      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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