UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40315 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOE MONTEZ RAMIREZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (B-01-CR-385-1) _________________________________________________________________ December 31, 2002

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Joe Montez Ramirez, convicted of failure to surrender for

sentencing (convicted of possession of cocaine with intent to

distribute), appeals his sentence-adjustment, based on obstruction

of justice, pursuant to U.S.S.G. § 3C1.1. He contends no evidence

supported the determination that he acted with the mental state

required for the adjustment.

In April 2001, Ramirez failed to surrender for service of

sentence. For over two months, he failed to appear. During that

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. time, members of his family reported him drowned. Ramirez was

ultimately arrested on unrelated charges and pleaded guilty to

knowingly failing to surrender for service of sentence. (Ramirez

acknowledged at re-arraignment in November 2001 that, following his

failure to surrender, he evaded efforts to find him. At sentencing

in February 2002, although the district court may have had that

admission before it, it did not note it in imposing the adjustment.

Accordingly, we do not consider it.)

The district court found that Ramirez knowingly obstructed the

investigation of the failure to appear charge by either planning

the fictitious drowning or simply failing to clarify that he was

not drowned in the two months following the failure to appear. See

U.S.S.G. §2J1.6, comment. n.2. The district court did not clearly

err in this factual finding, and, therefore, did not err in

imposing the adjustment. United States v. Lister,

(5th Cir. 1995).

AFFIRMED