United States v. Averill, 10th Cir. (1997)

F I L E D
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
APR 18 1997
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee.
v.
Case No. 96-4115
DONALD KEITH AVERILL,
(D.C. 2:96-CV-336-S)
(District of Utah)
Defendant-Appellant,
ORDER AND JUDGMENT*

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has unanimously
determined that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
* This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Defendant Donald Keith Averill appeals the district courts denial of his motion
under 28 U.S.C. 2255 to vacate and set aside his sentence on the ground that he
received ineffective assistance of counsel. Mr. Averill points to his counsels failure to
object to a two-level sentencing enhancement for obstruction of justice. We exercise
jurisdiction under 28 U.S.C. 1291 and affirm.
I. BACKGROUND
Mr. Averill was sentenced to 97 months imprisonment after pleading guilty to an
information charging him with distributing cocaine in violation of 21 U.S.C. 841(a)(1).
The district court adopted a two-level enhancement under United States Sentencing
Guideline (USSG) 3C1.1 because Mr. Averill had failed to appear for trial on a prior
indictment. The indictment was dismissed without prejudice after Mr. Averill failed to
appear. After he later surrendered, the government filed the information under which Mr.
Averill was ultimately sentenced, charging some of the same conduct under the same
statute as in the indictment.
II. DISCUSSION
We review claims of ineffective assistance of counsel de novo. See United States
v. Lopez, 100 F.3d 113, 118 (10th Cir. 1996). To prevail, Mr. Averill must show that his
counsels performance fell below an objective standard of reasonableness, and that his
2
counsels deficient performance was prejudicial. See Strickland v. Washington, 466 U.S.
668, 687-88, 694 (1984); Lopez, 100 F.3d at 117.
Mr. Averill claims his counsel was derelict in failing to object to the enhancement
because USSG 3C1.1 only permits enhancements for obstruction of justice as to the
instant offense. USSG Manual 3C1.1 (1995). Mr. Averill notes that he did not
obstruct justice as to the information under which he was sentenced; rather, he failed to
appear for trial on the indictment, which was subsequently dismissed, and under which he
was not sentenced.
This argument is without merit. We have stated that the instant offense language
of 3C1.1
enunciates a nexus requirement that must be met to warrant an adjustment.
This requirement is that the obstructive conduct, which must relate to the
offense of conviction, must be undertaken during the investigation,
prosecution, or sentencing. Obstructive conduct undertaken prior to an
investigation, prosecution, or sentencing; prior to any indication of an
impending investigation, prosecution, or sentencing; or as regards a
completely unrelated offense, does not fulfill this nexus requirement.
United States v. Gacnik, 50 F.3d 848, 852 (10th Cir. 1995). In this case, the nexus
requirement is clearly satisfied: The indictment encompassed the charges later contained
in the information. Thus, when Mr. Averill failed to appear for trial, he obstructed the
prosecution of charges for which he was later sentenced. As the Seventh Circuit has
stated: It is difficult to imagine conduct that more clearly interferes with the
administration of justice than a defendants failure to be present. When the disposition of
the charges cannot proceed until the defendants presence is secured . . . there is
obstruction of justice. United States v. Teta, 918 F.2d 1329, 1335 (7th Cir. 1990).
Thus, it is of no significance that Mr. Averill failed to appear for trial on one
charging document and was later sentenced under another. Indeed, the only reason a
second charging document had to be filed is that Mr. Averills flight forced the dismissal
of the first document under the Speedy Trial Act of 1974, 18 U.S.C. 3161-3174.
Under these circumstances, it would have been unjust for the district court to deny the
enhancement for obstruction of justice; doing so would have allowed Mr. Averill to
benefit from having put the government to the expense of refiling charges against him.
Because the enhancement was appropriate, we cannot say that counsels failure to
object to it fell below an objective standard of reasonableness. Strickland, 466 U.S. at
688. Even if counsels performance had been deficient, we could not say that it was
prejudicial: Mr. Averill has not shown that counsels . . . performance rendered the
proceeding fundamentally unfair or unreliable. United States v. Kissick, 69 F.3d 1048,
1055 (10th Cir. 1995) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)), cert.
denied, 117 S.Ct. 1008 (1997).
III. CONCLUSION
Accordingly, because Mr. Averill has failed to show deficient performance by
counsel, or prejudice in the outcome of the proceedings, the judgment of the district court
is AFFIRMED.
4
The mandate shall issue forthwith.

Entered for the Court,
Robert H. Henry
Circuit Judge

United States v. Averill, 10th Cir. (1997)

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

UNITED STATES OF AMERICA,

Case No. 96-4115

DONALD KEITH AVERILL,

ORDER AND JUDGMENT*

The mandate shall issue forthwith.

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