UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

MACCADO, NIGEL


99-3101a

D.C. Cir. 2000


*	*	*


Rogers, Circuit Judge: Nigel Judson Maccado appeals his  conviction on
the ground that the district court misapplied  United States
Sentencing Guidelines ("U.S.S.G.") s 3C1.1  (1995) by enhancing his
sentence by two levels for obstruction  of justice in the absence of a
substantial effect on the  investigation or prosecution of his case.
He contends that the  enhancement is unwarranted for his failure
timely to comply  with the court's order to give a handwriting
exemplar for  essentially two reasons. First, the nineteen-day delay
in the  taking of his handwriting exemplar that resulted from his 
noncompliance did not delay or otherwise hinder the sched- uled
judicial proceedings, and second, his guilty plea cured  any
obstruction. We hold that s 3C1.1 applies in the absence  of a
substantial effect on an investigation or prosecution, and  accord due
deference to the district court's determination that  Maccado's
deliberate disobedience of the court order warrant- ed an enhancement


I.


Maccado was indicted in 1998 for possession of false identi- fication
documents with intent to defraud the United States  and for making
false statements in a passport application.  See 18 U.S.C. ss
1028(a)(4), 1542. He ultimately pleaded  guilty on August 17, 1998, to
the false statements charge.  According to the government's proffer at
the time Maccado  pleaded guilty, the charges stemmed from his
submission on  September 11, 1997, of a completed United States
Passport  Application (Form DSP-11) in the name of David Arnar 
Proctor, born December 17, 1957, in Washington, D.C. Mac- cado listed
his social security number as 577-86-2072 and  presented as proof of
citizenship a District of Columbia  certificate with a recorded date
of birth, as well as an  employee identification card from his own
construction com- pany. He signed the form in the presence of the


Friendship Heights Post Office, who accepted the application  on behalf
of the Department of State. Several months later,  Special Agent
Leonard Codispot of the United States Depart- ment of State Bureau of
Diplomatic Security obtained an  arrest photograph of Maccado from the
Montgomery County,  Maryland, police records that matched the photo
attached to  the passport application. Agent Codispot also determined 
from the United States Immigration and Naturalization Ser- vice that
Maccado was born in India in 1949, and was not a  United States
citizen and not entitled to a United States  passport.


At a status hearing on Thursday, June 18, 1998, in contem- plation of
trial, the district court granted the government's  motion to compel
Maccado to submit a handwriting exemplar  that day to Agent Codispot,
who was present in the court- room. When asked by the court if he
understood the court's  order, Maccado replied, "Yes, your Honor."
Nevertheless,  Maccado did not give the exemplar to the agent that day
and  had no further personal contact with the agent until July 7, 
1998, when Agent Codispot obtained the exemplar from Mac- cado in
Maryland. At that time Maccado was in the Charles  County Detention
Center in LaPlata, Maryland.1


At Maccado's sentencing hearing, Agent Codispot testified  that after
the June 18th status hearing, he accompanied  Maccado and his wife to
the first floor of the courthouse.  Agent Codispot told Maccado to
wait while he obtained a copy  of the court order, and that the
exemplar would be taken in a  vacant room in the courthouse. When
Agent Codispot re- turned minutes later, Maccado was gone; his wife
explained  that Maccado had left to move the car. After waiting for
over  an hour for Maccado to return, Agent Codispot returned to  his
office and found a message from Maccado that his car had  overheated
and he had left it at his wife's office, that he had 




__________

n 1 Two days after the status hearing at which he was ordered to 
provide the exemplar to Agent Codispot, Maccado attempted sui- cide.
He was hospitalized and thereafter transferred to the Charles  County
Detention Center based on a Maryland warrant for a parole 


gone to visit a cousin in the hospital, and that he would do the 
"court-ordered things" at another time. Agent Codispot  twice
attempted unsuccessfully to reach Maccado at the pager  number that
Maccado had left as part of his recorded mes- sage.


Maccado's wife recounted somewhat different events. She  testified that
after the status hearing Agent Codispot in- formed them the exemplar
would be taken at an office in  Virginia, and that Maccado left the
courthouse to retrieve the  car so they could follow the agent to
Virginia. Upon re- turning to her office later that day, Mrs. Maccado
found a  message from her husband explaining that he had encoun- tered
car problems and another message from her cousin's  wife stating that
Maccado had been to the hospital to get  water for the car. Upon
returning home around 4:30 p.m.,  Mrs. Maccado found her husband at
home. She telephoned a  mechanic and dropped the car off that night,
leaving a  message for the mechanic about the problem. She also 
telephoned Agent Codispot, leaving a message about resched- uling the
taking of the exemplars.


At sentencing, the district court found:


that there has been obstruction of justice; that the  obstruction of
justice occurred when, notwithstanding a  court order to go with the
FBI agent [sic] to give a  handwriting exemplar, and it's clear from
the transcript  that I told the defendant that he had to go with that 
agent that day to provide a handwriting exemplar, not- withstanding
that, he didn't, and he hasn't offered any  plausible explanation or
reason why he didn't.


I mean, I think that if I were to credit his testimony  that he had to
take his car to get it fixed, it's not a  mitigating circumstance to
offset the failure to comply  with the court directive to have that
handwriting exemp- lar provided that day, and his failure to do so
rises to the  level of an obstruction of justice.


After applying the two-level enhancement under U.S.S.G.  s 3C1.1 and
crediting Maccado for acceptance of responsibili-


ty, id. s 3E1.1, which resulted in a sentencing range of 12 to  18
months, the court sentenced Maccado to 18 months' incar- ceration and
three years' supervised release.


II.


On appeal, Maccado contends that mere disobedience of a  court order is
insufficient to constitute obstruction of justice  under U.S.S.G. s
3C1.1 where the ordered evidence is pro- duced within a relatively
brief time prior to any scheduled  court hearing and, thus, does not
substantially influence the  investigation or prosecution. Combined
with his guilty plea  to one count, that he maintains effectively
cured any prior  obstructive conduct, Maccado contends that the
district  court's application of U.S.S.G. s 3C1.1 involved an
erroneous  interpretation of law that is subject to de novo review.


As to our standard of review, we agree with Maccado.  Maccado does not
challenge the district court's findings that  his conduct was
unjustified, or that he materially breached  the district court's
order. Nor does he claim that he had a  necessity defense or that his
actions were not willful. Conse- quently, the only issue presented on
appeal is whether  s 3C1.1 requires that a defendant's conduct have a
substan- tial effect on the investigation or prosecution of his case,
and  if so, whether a guilty plea negates the obstruction of justice. 
These are questions of law that the court reviews de novo.  See United
States v. (Michael) Taylor, 997 F.2d 1551, 1560  (D.C. Cir. 1993).
Upon determining whether there is a  substantial effect requirement in
s 3C1.1, the court must  accord due deference to the district court's
factual determina- tion that the defendant's conduct is within the
range of  punishable actions. See In re Sealed Case, 199 F.3d 488, 491
 (D.C. Cir. 1999); 18 U.S.C. s 3742(e); see also United States  v.
Drew, 200 F.3d 871, 880 (D.C. Cir. 2000).


The relevant version of s 3C1.1 of the Sentencing Guide- lines
instructs that:


[i]f the defendant willfully obstructed or impeded, or  attempted to
obstruct or impede, the administration of  justice during the course
of the investigation, prosecu-


tion, or sentencing of the instance offense, increase the  offense
level by 2 levels.


U.S.S.G. s 3C1.1 (1995).2 In the Application Notes to the  Guidelines,
which the court must treat as authoritative, see  Stinson v. United
States, 508 U.S. 36, 38 (1993), the Sentenc- ing Commission has
included two non-exhaustive lists of  examples to illustrate some of
the kinds of conduct that do  and do not fall within s 3C1.1. See
Application Notes 3 & 4.  None of the examples is precisely on point.
By way of  caveat, Application Note 2 states that "[o]bstructive
conduct  can vary widely in nature, degree of planning, and serious-
ness . . . [and] is not subject to precise definition." Applica- tion
Note 3 gives as examples of when the enhancement is  properly imposed
"committing, suborning, or attempting to  suborn perjury; . . .
escaping or attempting to escape from  custody before trial or
sentencing; or willfully failing to  appear, as ordered, for a
judicial proceeding; . . . [or] provid- ing materially false
information to a judge or magistrate."  U.S.S.G. s 3C1.1, Application




__________

n 2 The district court sentenced Maccado under the 1995 edition  of the
Sentencing Guidelines, and we refer to that edition. Macca- do's
offense occurred in September 1997, and the relevant guideline  was
modified in November 1997.


3 Application Note 3 lists the following examples:


(a) threatening, intimidating, or otherwise unlawfully influ- encing a
co-defendant, witness, or juror, directly or indirectly,  or
attempting to do so;


(b) committing, suborning, or attempting to suborn perjury;


(c) producing or attempting to produce a false, altered, or 
counterfeit document or record during an official investigation  or
judicial proceeding;


(d) destroying or concealing or directing or procuring anoth- er person
to destroy or conceal evidence that is material to an  official
investigation or judicial proceeding (e.g., shredding a  document or
destroying ledgers upon learning that an official  investigation has
commenced or is about to commence), or  attempting to do so; however,
if such conduct occurred contem- poraneously with arrest (e.g.,
attempting to swallow or throw  away a controlled substance), it shall
not, standing alone, be 


other hand, examples of acts that do not qualify for punish- ment under
s 3C1.1 include "providing incomplete or mis- leading information, not
amounting to a material falsehood, in  respect to a presentence
investigation; ... [and] avoiding or  fleeing from arrest." Id.,
Application Note 4(c), (d).4


By providing non-exhaustive illustrations, the Sentencing  Commission
has left considerable discretion in applying  s 3C1.1 to the
sentencing court. In view of the variety of  situations that might
constitute obstruction of justice, the  Commission necessarily relied
on the district court's reasoned  exercise of discretion in applying s
3C1.1 to particular fact  patterns. The question, therefore, is how
the threshold for  applying s 3C1.1 is to be defined. Efforts by the
circuit  courts of appeal to identify that threshold have not been  


__________

n sufficient to warrant an adjustment for obstruction unless it 
resulted in a material hindrance to the official investigation or 
prosecution of the instant offense or the sentencing of the  offender;
(e) escaping or attempting to escape from custody before  trial or
sentencing; or willfully failing to appear, as ordered,  for a
judicial proceeding;


(f) providing materially false information to a judge or mag-


(g) providing a materially false statement to a law enforce- ment
officer that significantly obstructed or impeded the offi- cial
investigation or prosecution of the instant offense;


(h) providing materially false information to a probation  officer in
respect to a presentence or other investigation for the  court;


(i) conduct prohibited by 18 U.S.C. ss 1501-1516.


4 Application Note 4 lists the following examples:


(a) providing a false name or identification document at  arrest,
except where such conduct actually resulted in a signifi- cant
hindrance to the investigation or prosecution of the instant  offense;
(b) making false statements, not under oath, to law enforce- ment
officers, unless Application Note 3(g) above applies; (c) providing
incomplete or misleading information, not  amounting to a material
falsehood, in respect to a presentence  investigation; (d) avoiding or
fleeing from arrest (see, however, s 3C1.2  (Reckless Endangerment


particularly successful in view of the breadth of the text of  s
3C1.1.


For example, the Fifth Circuit has derived two general  principles from
the commentary's lists based on two factors  that it has presumably
distilled from the commentary. The  two factors are: "(1) whether the
conduct 'presents an inher- ently high risk that justice will be
obstructed;' and (2)  whether the conduct 'requires a significant
amount of plan- ning,' as opposed to being 'the result of a spur of
the moment  decision' or 'stem[ming] from merely panic, confusion, or 
mistake.' " United States v. Phillips, 210 F.3d 345, 348 (5th  Cir.
2000) (quoting United States v. Greer, 158 F.3d 228, 235  (5th Cir.
1998)). A classification relying on this distinction,  articulated in
United States v. Draves, 103 F.3d 1328, 1337  (7th Cir. 1997), as the
difference between "panicked, instinc- tive flight" and "calculated
evasion," appears to place the  threshold higher than the Commission's
language and listings  suggest, because the list of sanctionable
conduct in Applica- tion Note 3 includes actions that do not seem to
require much  planning.5


The circuits, however, have had little problem imposing  s 3C1.1
enhancements when a defendant refused to cooperate  with an order to
provide a handwriting exemplar. See United  States v. Brazel, 102 F.3d
1120 (11th Cir. 1997); United States  v. (David) Taylor, 88 F.3d 938
(11th Cir. 1996); United States  v. Ruth, 65 F.3d 599 (7th Cir. 1995);
United States v. Reyes,  908 F.2d 281 (8th Cir. 1990). As the Second
Circuit observed  in United States v. Valdez, 16 F.3d 1324 (2d Cir.
1994), "there  are few better examples of a classic obstruction of
justice  than a defendant who refuses to give handwriting samples 
when compelled by subpoena [to do so]." Id. at 1335. It is  true that
these cases involved defendants who either refused  to provide
exemplars and never supplied them, or repeatedly  refused and then
belatedly provided the handwriting samples.  Still, there is no
suggestion that more than a single act  without additional
obstreperous, deliberate, or disruptive con-




__________

n 5 Our concurring colleague refines the Fifth Circuit's analysis 
slightly. See concurring opinion at 4.


duct is required under s 3C1.1, much less that a meaningful 
distinction exists between never submitting an exemplar and 
submitting one late. As the Seventh Circuit has observed,  the
guideline is concerned with the effect of potentially ob- structive
conduct rather than formal definitions. Cf. United  States v.
Harrison, 42 F.3d 427, 431 (7th Cir. 1994).


Other circuit cases emphasize the obstructive nature of  avoiding full
compliance with an order to provide an exemp- lar. Both the Second and
Seventh Circuits have affirmed  s 3C1.1 enhancements when a defendant
disguised a hand- writing exemplar that was to be compared with
writings to be  introduced at trial. See United States v. Yusufu, 63
F.3d 505,  514-15 (7th Cir. 1995); Valdez, 16 F.3d at 1335-36. As in
the  instant case, the exemplars sought in Yusufu and Valdez  were for
comparison with writing that was to be introduced at  trial. See
Yusufu, 63 F.3d at 514; Valdez, 16 F.3d at 1335.  Furthermore, in
United States v. Ruth, 65 F.3d 599 (7th Cir.  1995), the Seventh
Circuit affirmed a s 3C1.1 enhancement  based on a pretrial finding of
contempt for two refusals to  provide a handwriting exemplar, even
though the government  "eventually found another way to prove its case
and did not  try a third time to take the handwriting exemplars." Id.


In addition, a series of cases have applied s 3C1.1 to out-of- court
conduct that is analogous to the type of conduct at  issue. The Second
Circuit in United States v. Defeo, 36 F.2d  272, 276 (2d Cir. 1994),
affirmed enhancement under s 3C1.1  for a "four-month failure to
report to pretrial services." The  Ninth Circuit in United States v.
Draper, 996 F.2d 982 (9th  Cir. 1993), affirmed enhancement under s
3C1.1 for failure to  report to a community corrections center during
pre-trial  release, rejecting both the view that a "significant
disruption"  was required and the view that "a two week absence is not
 sufficient to warrant the obstruction adjustment." Id. at 984- 87.


The line of authority applying s 3C1.1 to handwriting  exemplars and
out-of-court conduct is persuasive for three  reasons: the Commission
has (1) used broad language in 


s 3C1.1; (2) included egregious as well as non-egregious  conduct in
its list of acts that warrant a sentencing enhance- ment; and (3)
determined that for most of the listed conduct  sanctionable under s
3C1.1, actual hindrance is an irrelevant  consideration. By contrast,
our concurring colleague's inter- pretation does not adequately
explain either the language of  s 3C1.1 or the two lists in the
commentary. The Commission  not only included attempts in s 3C1.1 but
stated that "willful- ly failing to appear, as ordered, for a judicial
proceeding" is  punishable under s 3C1.1 without actual hindrance,
even  though such failures do not seem necessarily to have a high 
risk of materially impeding the criminal justice process and  might
encompass spontaneous conduct. In (Michael) Taylor,  997 F.2d at
1559-60, the court, in rejecting a specific mens  rea requirement,
upheld a s 3C1.1 enhancement for obstruc- tion where the defendant
failed to return to the courtroom  before the jury returned its
verdict, even though defense  counsel waived his presence and the
proceedings continued.  The viability of our concurring colleague's
distinction cannot  rest on the fact (Michael) Taylor involved a
"judicial proceed- ing" rather than an "ancillary process," see infra
concurring  opinion at 4, for the obstruction that occurred in both


Accordingly, we hold that a s 3C1.1 enhancement can be  based on a
defendant's failure to comply with a court order to  provide a
handwriting exemplar in connection with the under- lying pending
charges regardless of whether the failure has a  substantial effect on
the investigation or prosecution. A  defendant's failure to provide
the ordered exemplar clearly  has the potential to weaken the
government's case, prolong  the pendency of the charges, and encumber
the court's docket  with an unnecessary trial. The two circumstances
on which  Maccado relies are unavailing. Whether or not the scheduled 
judicial proceedings are postponed is not dispositive, see  Defeo, 36
F.3d at 276-77; those proceedings might occur as  scheduled, but
without a defendant's exemplar or adequate  time to evaluate or reach
a plea agreement, the course of the  proceeding could be very
different. The fact that a defendant  ultimately enters a guilty plea


be dispositive; until the district court has accepted the plea,  see
Fed. R. Crim. P. Rule 12, anything could happen. See,  e.g., supra
n.1. Moreover, the conclusion that a plea could  erase an actual
obstruction of justice would be inconsistent  with s 3C1.1's inclusion
of attempts. Each of these circum- stances, in other words, fails to
eliminate the concern about  the potential effect of the defendant's
conduct that the guide- line is addressing.6 While we do not adopt a
per se rule for  handwriting exemplars, for the Commission's reference
in  Application Note 2 to the "degree of planning" and "serious- ness"
of the obstructive conduct are relevant factors for the  district
court to consider in deciding whether a s 3C1.1  enhancement is
warranted, we reject a heightened threshold  requiring conduct that
has a substantial effect on the investi- gation or prosecution. It
remains for the district court to  determine whether a defendant has
offered a sufficient reason  for failing to comply with the court
order as would make  application of the guideline inappropriate. As
stated in Unit- ed States v. Baker, 641 F.2d 1311 (9th Cir. 1981),
"criminal  contempt requires a contemnor to know of an order and 
willfully disobey it. . . . A good faith effort to comply with  the
order is a defense, although delaying tactics or indiffer- ence to the
order are not." Id. at 1317 (citations omitted).


Having concluded that the threshold for application of  s 3C1.1 does
not bar enhancement for failing to comply with  a court order in the
absence of a substantial effect, the  remaining question is whether
the district court's findings  were in some manner lacking. We find no
clear error. See  generally United States v. Saro, 24 F.3d 283, 286
(D.C. Cir. 




__________

n 6 The cases on which Maccado relies are distinguishable for the 
reason that the Application Notes require that the giving of false 
identification information to authorities actually hinder the investi-
gation or prosecution of the case. See United States v. Manning,  955
F.2d 770 (1st Cir. 1992); United States v. Robinson, 978 F.2d  1554
(10th Cir 1992). Likewise, Maccado's reliance on United States  v.
Tabares, 951 F.2d 405 (1st Cir. 1991), is misplaced; the materiali- ty
of Maccado's handwriting exemplar, which was relevant to the 
prosecution of his case, is undisputed. See United States v. Smaw, 
993 F.2d 902, 904 (D.C. Cir. 1993).


1984). Under s 3C1.1 the district court could reasonably  determine
that Maccado's failure to comply with a clearly  understood order was
inadequate. Not only did Maccado's  explanation seem implausible, it
failed to explain why he did  not provide his exemplar, or at least
make arrangements to  provide it, before he went to the hospital and
was thereafter  taken into custody, where his exemplar, albeit
probably in a  disguised form, was finally obtained.7 Maccado could
hardly  contend that the district court's interpretation of his
conduct  as being consistent with obstruction is clearly erroneous,
for  Maccado's version of events is undermined by Agent Codis- pot's
testimony that Maccado's telephone message stated he  would take care
of the "court-ordered things" at another time,  thus indicating a
deliberate, planned decision not to comply  with the court order, a
serious matter in and of itself.  Consistent with the Sentencing
Commission's acknowledg- ment of the need for case-by-case
determinations, see Appli- cation Note 2, these are circumstances
where the court owes  due deference to the district court's
application of a guideline.  See In re Sealed Case, 199 F.3d at 491.


Accordingly, we affirm the appealed judgment.




__________

n 7 At sentencing, the government presented evidence that Mac- cado's
exemplar was "not naturally executed," and that when giving  his
exemplar, Maccado "was straining" and "bearing down with a lot  of
pressure."


Williams, Circuit Judge, concurring: At the initial status  hearing on
Maccado's indictment, the district court ordered  him to provide a
federal agent a handwriting sample. Macca- do disappeared. The
district court's discussion of Maccado's  explanation, recounted in
the majority opinion ("Maj. Op.") at  4, strikes me as somewhat
ambiguous, but I accept the  majority's reading: namely that the
court, rather than finding  the explanation insufficient, simply
disbelieved it. On that  view, Maccado's disappearance looks like a
deliberate and  considered decision to pursue a course tending to
delay the  enforcement of the criminal law, and perhaps to thwart it. 
On that assumption we must consider whether there was  error in the
district court's decision under the Sentencing  Guidelines to add a
two-point enhancement for obstruction of  justice under s 3C1.1.


In the course of affirming, the majority appears to estab- lish a lower
threshold for enhancement than s 3C1.1 permits.  The Guidelines
provide for the enhancement "[i]f the defen- dant willfully obstructed
or impeded, or attempted to obstruct  or impede, the administration of
justice during the investiga- tion, prosecution, or sentencing of the
instant offense."  U.S.S.G. s 3C1.1. To elucidate this language the
Sentencing  Commission has included in its commentary two non-
exhaustive lists, one of acts qualifying for the enhancement  and the
other of non-qualifying acts. We owe the commen- tary deference.
Stinson v. United States, 508 U.S. 36, 38  (1993); see also U.S.S.G. s
1B1.7 (1995). Defendant's con- duct is not among the specific
examples, so we must try to  discern the pattern and see where


To help the reader navigate through the two lists, I offer in  advance
the general principles that the Fifth Circuit has  drawn from them. It
found that the enhancement should  depend on the inherent tendency of
the conduct actually to  obstruct justice and on the deliberateness of
defendant's  behavior: "(1) whether the conduct 'presents an
inherently  high risk that justice will be obstructed;' and (2)
whether the  conduct 'requires a significant amount of planning,' as
op- posed to being 'the result of a spur of the moment decision' or 
'stem[ming] from merely panic, confusion, or mistake.' " 


United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000)  (internal
citation omitted). The acts listed by the commen- tary as qualifying
for enhancement are, in the Fifth Circuit's  view, ones that are
"egregiously wrongful," involving both  considerable advance planning
and a high risk of derailing an  investigation or prosecution. United
States v. Greer, 158  F.3d 228, 235 (5th Cir. 1998). In support it
points to lan- guage in the commentary noting the range of "degree of 
planning[ ] and seriousness" that obstruction of justice issues  may
present. Id. at 234. In fact, I question whether every  item in the
Commission's lists handily fits the Fifth Circuit's  explanation, but
it is a useful starting point.


Application Note 3 gives a non-exhaustive list of acts calling  for
enhancement:


(a) threatening, intimidating, or otherwise unlawfully  influencing a
co-defendant, witness, or juror, directly or  indirectly, or
attempting to do so;


(b) committing, suborning, or attempting to suborn  perjury;


(c) producing or attempting to produce a false, altered,  or
counterfeit document or record during an official  investigation or
judicial proceeding;


(d) destroying or concealing or directing or procuring  another person
to destroy or conceal evidence that is  material to an official
investigation or judicial proceeding  (e.g., shredding a document or
destroying ledgers upon  learning that an official investigation has
commenced or  is about to commence), or attempting to do so; however, 
if such conduct occurred contemporaneously with arrest  (e.g.,
attempting to swallow or throw away a controlled  substance), it shall
not, standing alone, be sufficient to  warrant an adjustment for
obstruction unless it resulted  in a material hindrance to the
official investigation or  prosecution of the instant offense or the
sentencing of  the offender;


(e) escaping or attempting to escape from custody  before trial or
sentencing; or willfully failing to appear,  as ordered, for a
judicial proceeding;


(f) providing materially false information to a judge or  magistrate;


(g) providing a materially false statement to a law  enforcement
officer that significantly obstructed or im- peded the official
investigation or prosecution of the  instant offense;


(h) providing materially false information to a proba- tion officer in
respect to a presentence or other investiga- tion for the court;


(i) conduct prohibited by 18 U.S.C. ss 1501-1516.


This adjustment also applies to any other obstructive  conduct in
respect to the official investigation, prosecu- tion, or sentencing of
the instant offense where there is a  separate count of conviction for
such conduct.


U.S.S.G. s 3C1.1, Application Note 3. Many of these acts  easily score
on both the factors identified by the Fifth Circuit.  Example (g),
however, seems to embrace a defendant's spon- taneous deception of a
law enforcement officer--but only if  the deception in fact generates
a "significant" obstruction or  impediment.


Application Note 4 gives examples of conduct not qualifying  for an
enhancement:


The following is a non-exhaustive list of examples of the  types of
conduct that, absent a separate count of convic- tion for such
conduct, do not warrant application of this  enhancement, but
ordinarily can appropriately be sanc- tioned by the determination of
the particular sentence  within the otherwise applicable guideline


(a) providing a false name or identification document  at arrest,
except where such conduct actually resulted in  a significant
hindrance to the investigation or prosecution  of the instant


(b) making false statements, not under oath, to law  enforcement
officers, unless Application Note 3(g) above  applies;


(c) providing incomplete or misleading information,  not amounting to a
material falsehood, in respect to a  presentence investigation;


(d) avoiding or fleeing from arrest (see, however,  s 3C1.2 (Reckless
Endangerment During Flight)).


U.S.S.G. s 3C1.1, Application Note 4. Given Note 3(g) and  the second
part of Note 3(d), and the re-appearance of  concern for actual
obstructive effect in 4(a) and 4(b), I might  amend the Fifth
Circuit's classification to say that generally  the enhancement is due
(1) when the conduct is the result of  planning and is highly likely
to cause a serious derailment of  the process, or (2) when conduct,
even if spontaneous, actually  does cause such a derailment. Such a
view puts the risk of  derailment largely on the perpetrator. Other
courts appear  to rely on the distinction between planned and high
risk  conduct, on one hand, and instinctive and low risk conduct, on 
the other. See United States v. Draves, 103 F.3d 1328, 1337  (7th Cir.
1997) (holding obstruction enhancement improper  when defendant fled
from the back of a patrol car during his  arrest; "panicked,
instinctive flight" must be distinguished  from "calculated


"[W]illfully failing to appear, as ordered, for a judicial 
proceeding," see Application Note 3(e), appears not to fit  readily
the Fifth Circuit's taxonomy. Such failures do not  seem necessarily
to have a high risk of materially impeding  the criminal justice
process--except in the sense of to some  degree wasting judicial
resources; and, depending on the  breadth of "willfully," these acts
might or might not encom- pass spontaneous conduct. The language is,
however, con- fined to a "judicial proceeding," rather than reaching
any  neglect of any judicial order, and would not seem necessarily  to
encompass a judicial order to turn up for some ancillary  process such
as giving a handwriting sample out of court.  Although courts have
held that the failure to appear for a  non-judicial proceeding
qualifies for a s 3C1.1 sentencing  enhancement, these courts also
found the defendant acted in  a deliberate and calculated fashion. See
United States v.  Defeo, 36 F.3d 272, 276 (2d Cir. 1994) (upholding s


enhancement for four month failure to report to pretrial  services
because it was comparable to escape from custody);  United States v.
Mondello, 927 F.2d 1463, 1466-67 (9th Cir.  1991) (contrasting
defendant's two-week "cat-and-mouse  game of avoiding the authorities"
after arrest with very  different "situation where ... a criminal is
surprised in the  act of committing a crime and makes an evasive dodge
to  avoid apprehension").


The majority's characterization of the Fifth Circuit's analy- sis seems
to me incorrect. The analysis does not set actual  hindrance as a
threshold requirement for the enhancement,  compare Maj. Op. at 11,
and it does not read out the attempt  language in s 3C1.1, compare
Maj. Op. at 10. It requires  actual hindrance only when the
defendant's act is better  viewed as spontaneous than deliberate (in
the sense of delib- erated). Also contrary to the majority, I do not
see how the  Sentencing Commission's inclusion of attempts to obstruct
 provides any basis for some sort of across-the-board lowering  of the
bar. Compare id. For example, one who attempts to  escape from custody
before trial deserves the enhancement,  even if he is foiled by an
alert guard. See Application Note  3(e). But that is no basis for
diluting the requirement of  actual impact expressed by the Commission
in cases such as  3(g).


The majority goes some way to erase all the distinctions  that the
Commission sought to draw. It characterizes the  Commission as having
"included egregious as well as non- egregious conduct in its list of
acts that warrant a sentencing  enhancement," Maj. Op. at 10, and says
that the Seventh  Circuit in Draves placed "the threshold higher than
the  Commission's language and listings suggest," Maj. Op. at 8. 
Obviously the margin between "egregious" and "non- egregious" is
vague, but the Commission was plainly trying to  set up a hierarchy.
In Application Note 2 it stresses that  "Application Note 4 sets forth
examples of less serious forms  of conduct to which this enhancement
is not intended to  apply, but that ordinarily can appropriately be
sanctioned by  the determination of the particular sentence within the
other- wise applicable guideline range." U.S.S.G. s 3C1.1, Applica-


tion Note 2 (emphasis added). By refusing to apply s 3C1.1  to
"panicked, instinctive flight", the court in Draves was  merely
honoring the Commission's scheme and leaving pun- ishment of "less
serious" obstructions to adjustment within  the otherwise prevailing


Accepting the district court's view of Maccado's conduct as 
deliberate, there remains the question of the risk (or reality)  that
his actions would seriously impede his prosecution. In  several cases
courts have found a deliberate, affirmative  refusal to provide a
handwriting sample grounds for enhance- ment--in many of them the
refusal was repeated. See Unit- ed States v. Brazel, 102 F.3d 1120,
1163 (11th Cir. 1997)  (upholding enhancement where the defendant
affirmatively  refused to provide, and never supplied, sample); United
 States v. Taylor, 88 F.3d 938, 944 (11th Cir. 1996) (upholding 
enhancement for defendant's "repeated refusals to supply  handwriting
exemplars, and his effort to disguise his hand- writing when he did
supply them"); United States v. Ruth, 65  F.3d 599, 608 (7th Cir.
1995) (upholding enhancement where  the "court twice ordered
handwriting exemplars, and [defen- dant] twice failed to comply");
United States v. Reyes, 908  F.2d 281, 290 (8th Cir. 1990) (upholding
enhancement where  defendant refused to comply with handwriting sample
order  and never supplied one). Maccado's behavior seems to have 
posed less risk and caused less actual impact on law enforce- ment.
Indeed, if we exclude days in the hospital or in  custody, only two
days passed between the June 18, 1998  order and the actual taking of
an example. Maccado seems  reminiscent of the luckless Conrad Hensley
in Tom Wolfe's A  Man in Full, though to be sure a good deal more
feckless.  But his hospitalization and custody may be viewed as wind-
falls, so that--given the deference we owe the district court's 
application of law to facts, see United States v. Kim, 23 F.3d  513,
517 (D.C. Cir. 1994)--we cannot reverse the district  court for its
implicit judgment that Maccado's actions pre- sented a serious risk of


Accordingly, I join the court in affirming the judgment.