[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 20, 2004
No. 03-14354
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00009-CR-T-23-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARRY VICTOR FRASIER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 20, 2004)
Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.
PER CURIAM:
In January 2002, appellant and Lonnie Code were indicted for having
committed the following armed bank robberies in Florida: Count One, an October
23, 2001 robbery of the Suncoast Schools Federal Credit Union in Bradenton;
Count Four, a November 8, 2001 robbery of the Washington Mutual Bank in
Orlando; Count Six, a November 13, 2001 robbery of the Prosperity Bank in St.
Augustine. Appellant was charged in Counts Two and Seven with using or
carrying a firearm during and in relation to the robberies charged in Counts One
and Six.
Code pled guilty as charged; appellant stood trial before a jury. After the
district court denied his motion for judgment of acquittal, the jury convicted
appellant on all counts. The court sentenced him to prison on all counts for a total
of 528 months as follows: concurrent sentences of 168 months on Counts One,
Four and Six, a consecutive sentence of 60 months on Count Two, and a
consecutive sentence of 300 months on Count Seven. Appellant now appeals his
convictions on Counts Two and Seven and his sentences.
I.
Appellant contends that the district court should have granted his motion for
judgment of acquittal on Counts Two and Seven on the ground that the evidence
was insufficient to show that he used and carried a handgun during the robberies of
the Suncoast Schools Federal Credit Union and the Prosperity Bank. Actually, his
2
contention is that the testimony of the witnesses who said that he was armed with a
handgun during those robberies is unworthy of belief.
The prosecutor presented these witnesses. In support of Count Two, the
prosecutor called a Suncoast service center manager. She testified that two men
entered the credit union and robbed it of $15,500. She identified appellant as a
man depicted in a photo taken by a security camera during the robbery. Appellant
was holding a firearm. A Suncoast customer and a Suncoast teller also identified
appellant from the same photo. In support of Count Seven, the prosecutor called a
Prosperity Bank employee whom appellant confronted during the robbery. He
was armed. She had no trouble identifying him. The branch manager also
identified appellant as one of the robbers. Appellant entered his office, instructed
him to move into the lobby, and pulled out a gun.
The testimonies of the Count Two and Seven witnesses, along with the
photos made during the course of these robberies, were more than adequate to
establish the offenses charged in Counts Two and Seven of the indictment. We
therefore affirm appellant’s convictions on those counts
II.
Appellant asks that we set aside his sentences on Counts One, Four, and Six
and remand the case for resentencing on the ground that the district court, in
3
determining the appropriate sentencing ranges under the Guidelines for those
counts, clearly erred in adjusting his base offense levels upward by two levels
pursuant to U.S.S.G. § 3C1.1. We find no clear error and therefore affirm
appellant’s sentences.
A two-level, obstruction-of-justice enhancement is appropriate under section
3C1.1 if (1) a defendant willfully obstructed or impeded “the course of the
investigation, prosecution, or sentencing of the instant offense of conviction,” and
(2) the obstructive conduct related to either the offense of conviction or any
relevant conduct. U.S.S.G. § 3C1.1. Attempting to escape from custody prior to
trial constitutes obstruction of justice under § 3C1.1. U.S.S.G. § 3C1.1, comment
(n.4(e)).
The court applied section 3C1.1 in this case because it found that appellant
attempted to escape from the Orange County, Florida jail to avoid federal
prosecution. Appellant was being held in the Orange County jail as a pretrial
detainee, having been charged by the State of Florida for committing the bank
robberies at issue here. An FBI agent came to the jail and informed appellant that
the federal government was investigating the robberies and that he was a target of
the investigation. The agent hoped that appellant, once indicted by a federal grand
jury, would cooperate and assist the government in recovering the stolen money.
4
Following the agent’s visit, appellant attempted to escape from the jail.
Appellant contends that section 3C1.1 is inapplicable in this case because
no federal charges were pending at the time of his escape attempt. Absent federal
charges, he could not have known that he was obstructing a federal investigation.
He cites United States v. Rudisill, 187 F.3d 1260 (11th Cir. 1999), to support his
theory that to receive an obstruction-of-justice enhancement, the defendant must
have known that he was being detained for a federal proceeding.
In Rudisill, we held that a defendant’s encouragement of a witness to flee,
rather than comply with a federal grand jury subpoena, constituted obstruction of
justice. Rudisill, 187 F.3d at 1264. Although we have not passed on the situation
appellant’s case presents, other circuits expressly have found that an obstruction-
of-justice enhancement is applicable where the defendant’s conduct obstructed a
state investigation, which later turned into a federal investigation. See United
States v. Imenec, 193 F.3d 206, 209 (3rd Cir. 1999) (concluding that “a § 3C1.1
enhancement is appropriate where the defendant has obstructed a prosecution
based on the same criminal conduct underlying the offense of conviction even
though that prosecution [was] going forward in a state court”); United States v.
Emery, 991 F.2d 907, 911 (1st Cir.1993) (finding that a defendant should not be
rewarded “merely because he managed to engineer his attempted escape just before
5
the federal investigation formally began”); United States v. Roberts, 243 F.3d 235,
240 (6th Cir. 2001) (finding that escape, which preceded federal involvement in a
case, could be grounds for an obstruction-of-justice enhancement); United States v.
Adediran, 26 F.3d 61, 65 (8th Cir. 1994) (stating that obstruction-of-justice
enhancement was not barred because state entities were involved); United States v.
Lato, 934 F.2d 1080, 1083 (9th Cir. 1991) (ruling that the obstruction of a state
investigation was sufficient for an obstruction-of-justice enhancement). In
contrast, only the Seventh Circuit has found that the obstruction of a state
investigation was insufficient to justify imposition of the section 3C1.1
enhancement. See United States v. Perez, 50 F.3d 396, 400 (7th Cir.1995) (finding
that defendant’s act of fleeing a state drug charge did not impede a later federal
drug conspiracy charge).
Because an FBI agent had informed appellant prior to his attempted escape
that the federal government was going to prosecute him, we conclude that the
district court was justified in imposing the obstruction-of-justice enhancement.
AFFIRMED.
6