United States of America, Plaintiff-appellee, v. Charles William Gentry, Defendant-appellant, 26 F.3d 133 (9th Cir. 1994)

MEMORANDUM^** 

Charles William Gentry appeals his 121-month sentence following entry of a guilty plea to engaging in a sexual act with a person incapable of appraising the nature of the conduct, in violation 18 U.S.C. § 2242(2) (A). Gentry contends that the district court erred when it found that he obstructed the administration of justice. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

We review de novo whether a defendant's conduct constitutes the obstruction of justice. United States v. Draper, 996 F.2d 982, 984 (9th Cir. 1993).

The Sentencing Guidelines provide for a two-level upward adjustment in the offense level if the defendant willfully obstructs or impedes the administration of justice. U.S.S.G. Sec. 3C1.1. Willfully failing to appear for a judicial proceeding as ordered is an example of obstructing the administration of justice. U.S.S.G. Sec. 3C1.1, comment. (n. 3(e)).

A summons requires that "the defendant to appear before a magistrate judge at a stated time and place," or face arrest for failing to appear. Fed. R. Crim. P. 9(a), (b) (2); cf. United States v. Hilger, 867 F.2d 566, 568 (9th Cir. 1989) (defendant required to appear as ordered in summons).

While in Ohio, Gentry was served with a summons to appear for arraignment in the district court in Idaho. Gentry drove to Idaho in order to appear in court. After he arrived, however, Gentry feared losing his freedom and decided to flee the state. He was arrested in Arkansas four months after his scheduled arraignment. Because Gentry willfully failed to appear at his arraignment as ordered by the summons, the district court properly adjusted Gentry's offense level by two levels for obstructing the administration of justice.¹  See U.S.S.G. Sec. 3C1.1, comment. (n. 3(e)); cf. Draper, 996 F.2d at 984-85.

AFFIRMED.