UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4901


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERTO LARA, a/k/a Roberto Lopez,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.       Solomon Blatt, Jr., Senior
District Judge. (9:08-cr-01224-SB-2)


Submitted:   March 19, 2012                 Decided:   April 2, 2012


Before MOTZ, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christopher L. Murphy, STUCKEY LAW OFFICES, LLC, Charleston,
South Carolina, for Appellant.       William N. Nettles, United
States   Attorney,  Sean   Kittrell,   Assistant  United States
Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Roberto Lara pled guilty without benefit of a plea

agreement       to    conspiracy       to   possess     more    than    500    grams    of

cocaine with intent to distribute, 21 U.S.C. § 846 (2006), and

was    sentenced       to   a   term   of   108     months’    imprisonment.         Lara

appeals his sentence, contending that the district court erred

in     making    an       adjustment    for       obstruction     of    justice,     U.S.

Sentencing Guidelines Manual § 3C1.1 (2010).                      We affirm.

            A        two-level     enhancement          applies     “[i]f      (A)     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 (B) the obstructive conduct related

to (i) the defendant’s offense of conviction and any relevant

conduct;    or       (ii)   a   closely     related     offense.”       USSG   § 3C1.1.

Obstructive conduct includes “willfully failing to appear, as

ordered, for a judicial proceeding.”                    USSG § 3C1.1 cmt. n.4(E).

It does not include “avoiding or fleeing from arrest.”                         

            Lara was arrested by South Carolina law enforcement

officers in February 2008 and charged with cocaine trafficking,

but released on bond.             Based on the same conduct, he was later

indicted on a federal charge of conspiring to possess cocaine

with    intent       to   distribute.         Although    an    arrest    warrant      was

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issued   with      the    indictment,     Lara’s      attorney         negotiated     an

agreement     by    which     Lara   would      be    permitted         to   surrender

voluntarily.       Instead of surrendering, Lara fled South Carolina.

His wife informed the federal agent in charge that Lara didn’t

trust the government, thought he would get too long a sentence,

and failed to appear for that reason.                      Subsequently she also

disappeared with their children.

             After several months, federal marshals located Lara’s

likely residence in Los Angeles and attempted to arrest a man

outside the house who proved not to be him.                            The next day,

Lara’s wife consented to a search of the house.                       It contained no

evidence that an adult male was living there.                     However, one of

the young children pointed out the bed where his father slept.

Lara’s   wife      then     cooperated    and       took    the       deputies   to    a

construction business where she had taken Lara the night before,

after the attempted arrest.          The manager directed them to a job

site where Lara was working.             After a forty-minute search, Lara

was located hiding in a ventilation shaft.                        He gave a false

name, but was positively identified by his distinctive tattoos.

             Lara contested his detention, asserting that he did

not know he was wanted when he left South Carolina; he sought to

be released and allowed to travel to South Carolina on his own

to   self-report     there.      Because      the    district     court      judge    in

California    seemed      inclined   to   release      Lara,      a    federal   agent

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traveled   to   California      to   testify           at   the    detention   hearing,

after which Lara was detained and returned to South Carolina.

           At his sentencing hearing, the federal agent testified

and the government introduced emails to the agent from Lara’s

former attorney stating that he had discussed the arraignment

with Lara.      Defense counsel argued that the evidence did not

establish that Lara knew about his attorney’s agreement for his

self-surrender.      He argued that his conduct amounted to fleeing

from arrest, which usually does not constitute obstruction of

justice.     See USSG § 3C1.1 cmt. n.5(D).                        The district court

determined that Lara knew of the agreement that he would self-

surrender, willfully failed to appear, and subsequently engaged

in further conduct intended to obstruct his prosecution.

           On      appeal,      Lara        acknowledges            the   distinction

recognized in United States v. Gonzalez, 

(7th Cir.

2010), cert. denied, 

(2011), between “panicked”

or   “instinctual”     flight    “in        the    immediate        after-math   of    a

crime,” and “calculated evasion” or “a deliberate pre-or-post-

arrest   attempt     to   frustrate         or    impede      an    ongoing    criminal

   (internal     quotations      and

citation omitted).        However, he argues that he did nothing more

than flee to avoid arrest, that his wife’s conduct in removing

all signs of his presence from the house in Los Angeles should

not be attributed to him, and that concealing himself in the

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ventilation shaft was a panicked, spur-of-the-moment attempt to

avoid arrest.

              While     mere    flight    may     not        trigger    the       § 3C1.1

adjustment, flight in circumstances that indicate deliberately

obstructive conduct warrants it.                 See, e.g. United States v.

Curb, 

, 928 (7th Cir. 2010) (defendant who willfully

failed to appear for sentencing and evaded capture for more than

two months obstructed justice); United States v. Reeves, 

, 23-24 (D.C. Cir. 2009) (defendant who willfully failed

to   appear    at     arraignment   and   remained       a    fugitive      for    eleven

months obstructed justice); United States v. Dunham, 

, 609 (6th Cir. 2002) (defendant who provided no adequate

reason   for    his     failure   to   appear     in    response       to   grand       jury

subpoena obstructed justice).

              Here,    the     district   court    did       not   clearly        err    in

finding as a fact that, when Lara fled South Carolina, he knew

he had been indicted, an arrest warrant had been issued, and his

attorney had arranged for him to surrender himself voluntarily.

Lara’s failure to surrender, his flight to California, and his

attempts to evade capture when he was located there by federal

marshals      all     constituted      conduct     intended        to       thwart       his

prosecution, rather than instinctive flight from arrest at the

scene of a crime.            Consequently, we conclude that the district

court did not err in finding that Lara obstructed justice.

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           We therefore affirm the district court’s judgment.       We

dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                              AFFIRMED




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