In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3739

United States of America,

Plaintiff-Appellee,

v.

Frank W. Simmons,

Defendant-Appellant.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 CR 122--Rudolph T. Randa, Judge.


Argued March 29, 2000--Decided June 13, 2000



      Before Flaum, Ripple and Kanne, Circuit Judges.

      Kanne, Circuit Judge. Pursuant to a plea
agreement, Frank Simmons agreed to cooperate with
the government and testify at the trial of Dwayne
Reed. Simmons testified at Reed’s trial, which
ended in a mistrial in January 1999. For his
cooperation, Simmons received a six-level
downward departure from the applicable sentencing
range of the Sentencing Guidelines, resulting in
a 55-month decrease in his sentence.

      When Reed was retried, the district court
ordered Simmons to testify again. Simmons refused
to testify in the second trial, claiming that the
government had reneged on a commitment made at
his sentencing to grant him additional time off
his sentence for his continued cooperation. The
district court held Simmons in contempt for his
refusal to testify, and found him guilty of
criminal contempt at a bench trial in September
1999. At sentencing, the district court departed
eight levels upward from the applicable
Guidelines sentencing range, increasing his
sentence from the range of 18-24 months to 46-57
months, then sentenced him to 57 months. Simmons
appeals the district court’s denial of his motion
to dismiss the criminal contempt charge on the
basis of Simmons’s "good faith" defense and the
district court’s decision to depart from the
applicable sentencing range. We affirm the
decisions of the district court.
I.   History

      Simmons was arrested on July 2, 1998, shortly
after he and two other men robbed a First
Municipal Credit Bank in Milwaukee, Wisconsin.
After his arrest, Simmons made a statement to
authorities pursuant to a proffer agreement in
which he provided information about individuals
with whom he had previously performed bank
robberies. One of these robberies was committed
at Educator’s Credit Union in Milwaukee on
September 8, 1997, with the aid of two other men,
one of whom was Dwayne Reed. During this robbery,
Reed controlled the lobby by brandishing a
weapon, while Simmons hurdled the bank counter
and gathered money from the tellers.

      Simmons pleaded guilty on November 17, 1998, to
the First Municipal Credit Bank robbery pursuant
to a plea agreement with the government. The plea
agreement required Simmons to cooperate "fully
and completely" with the government’s prosecution
of the accomplices whom Simmons named in his
proffer. While awaiting his own sentencing, Reed
was arrested, and Simmons was called to testify
as a prosecution witness at Reed’s trial. Simmons
testified against Reed, but the trial ended in a
hung jury and a mistrial was declared on January
6, 1999.

      On March 24, 1999, Simmons was sentenced for
his own bank robbery conviction. Pursuant to the
plea agreement, the government requested that
Simmons receive a six-level downward departure
from the applicable sentencing range based on the
substantial assistance that he provided to the
government. The district court granted the
government’s request and departed six levels
downward from the applicable sentencing range,
reducing the range from 151-188 months to 92-115
months. The court sentenced Simmons to 96 months
in prison followed by three years supervised
release. At the sentencing hearing, the
government noted that the Reed prosecution
resulted in a mistrial and suggested that it
would call Simmons again as a witness in the
retrial of Reed. Counsel for the government
stated that, if Simmons continued to testify
truthfully and reliably, "I anticipate there
would be a further motion to this court,"
apparently to reconsider Simmons’s sentence, at
which point the government felt that "[Simmons]
would be entitled to additional credit."

      Dwayne Reed’s retrial began on June 7, 1999. By
this time, however, Simmons no longer wanted to
testify against Reed. Despite Simmons’s wishes to
the contrary, the district court ordered Simmons
to testify. Simmons initially refused to testify
and asked to speak with his attorney. The
district court warned Simmons that he could be
found in contempt on the basis of his refusal to
testify and subjected to additional penalties.
After speaking with his client, Simmons’s
attorney, Scott Phillips, asked the government
whether Simmons would be entitled to additional
credit in exchange for his testimony. The
government responded that Simmons would not
receive additional credit and that there would be
"no deal" at that point. Simmons believed that by
this action, the government had reneged on the
plea agreement, and he reiterated his refusal to
testify. The district court repeated that Simmons
would be found in contempt if he refused to
testify, but Simmons refused. On this basis, the
government asked that Simmons be declared an
unavailable witness, and Simmons’s testimony from
the first trial was read into evidence at the
Dwayne Reed retrial. After his refusal to testify
at the retrial, Simmons wrote a letter to Reed
informing Reed that he had refused to testify or
cooperate with the government in Reed’s
prosecution. Reed presented this letter at the
retrial to dispute the credibility of Simmons’s
testimony. This letter stated in part: "Say man
check this out. I told them people fuck that
shit. . . . never can I help them people take
your life like that. . . . Wayne, like I said
fuck them honkies I told them people I aint with
it and that’s for real. Take care." The jury
found Reed guilty of bank robbery.

      On June 16, 1999, the district court certified
Simmons for contempt and set a date for a jury
trial. Shortly thereafter, Simmons filed a motion
to dismiss the criminal contempt charge because
his refusal to testify stemmed from his good
faith belief that the government had reneged on
their plea agreement. Immediately prior to trial,
the government moved in limine to prevent Simmons
from presenting evidence of this good faith
defense. The district court found that its order
to testify had been clear and that Simmons had
not indicated any inability to comply. On this
basis, the court found that the good faith
defense had no merit as a matter of law, and the
court granted the government’s motion in limine
and denied Simmons’s motion to dismiss. Simmons
then waived his right to jury trial. On September
2, 1999, the district court conducted a bench
trial, and Simmons was found guilty of criminal
contempt.

      Simmons was sentenced on October 15, 1999. At
sentencing, the district court accepted the
computation of the pre-sentencing report ("PSR"),
which applied United States Sentencing Guidelines
sec. 2J1.5(a), failure to appear as a material
witness (as directed by sec.sec. 2X5.1 and
2J1.1), and sec. 2J1.5(b), substantial
interference with the administration of justice,
to reach a total offense level of nine. Simmons’s
criminal history category was V, which with his
total offense conduct, created an applicable
Guidelines range of 18-24 months. The government
requested that the district court depart upward
from the applicable range because Simmons’s
knowing refusal to testify took his conduct
outside the heartland of conduct contemplated by
sec. 2J1.5(a). The district court agreed, and
found that Simmons’s refusal to testify, as well
as his change of heart evidenced by his letter to
Reed, removed Simmons’s conduct from the range of
activity contemplated by the Guidelines.
Accordingly, the court determined that an upward
departure in the total offense level was
appropriate, and the court enhanced Simmons’s
total offense level eight levels, increasing the
applicable sentencing range to 46 to 57 months.
The court sentenced Simmons to 57 months
imprisonment, to be served consecutively to his
term of imprisonment for bank robbery.
II. Analysis

      On appeal, Simmons raises two issues. First, he
contends that the court erred in denying his
motion to dismiss the criminal contempt charge on
the basis of his good faith defense and in
granting the government’s motion in limine, which
denied Simmons the right to raise this defense at
trial. Second, he argues that the court erred in
departing upward from the applicable sentencing
range. We review de novo the district court’s
denial to allow a defendant to raise a proffered
defense, a question of law. See United States v.
Santiago-Godinez, 12 F.3d 722, 726 (7th Cir.
1993). We review a district court’s decision to
depart for abuse of discretion and accept the
findings of fact underlying such a departure
unless clearly erroneous. See United States v.
Cruz-Guevara, 209 F.3d 644, 647 (7th Cir. 2000);
United States v. Wilke, 156 F.3d 749, 753 (7th
Cir. 1998). A district court’s determination of
the extent of a departure is discretionary, see
United States v. Leahy, 169 F.3d 433, 445 (7th
Cir. 1999), so we review this determination for
abuse of discretion. "We will uphold the extent
of the departure taken as long as it is
reasonable and adequately reflects the structure
of the Guidelines." United States v. Hogan, 54
F.3d 336, 341 (7th Cir. 1995).

A.   Motion to Dismiss

      Criminal contempt is used to punish disobedience
of a court order, and courts often find a
defendant in contempt when he willfully refuses
to comply with a valid court order. See, e.g.,
United States v. Marquardo, 149 F.3d 36, 39-40
(1st Cir. 1998). Simmons does not dispute that
the district court issued an order that he
testify or that he refused to testify. Instead,
Simmons claims that he refused to testify in the
good faith belief that the government had reneged
on their plea agreement. Because a good faith
effort to comply with a court order negates
willfulness, an element of criminal contempt that
must be proven beyond a reasonable doubt, a
defendant may present evidence of good faith as
a defense to a criminal contempt charge. See
United States v. Monteleone, 804 F.2d 1004, 1011
(7th Cir. 1986); United States v. Ray, 683 F.2d
1116, 1126 (7th Cir. 1982).

      However, Simmons fails to present evidence that
would demonstrate good faith. A defendant can
show good faith by providing evidence that his
noncompliance did not constitute a refusal or
resulted from the indefiniteness of the district
court’s order or some other factor rendering the
defendant incapable of performing the order. See
Ray, 683 F.2d at 1126. The district court’s order
to testify was quite clear, however, and the
court reiterated both its order and the
consequences of Simmons’s refusal several times.
Simmons presents no evidence that he was
incapable of testifying, nor can we adduce any
factor that may have rendered him incapable of
testifying. Simmons refused to comply with a
clear court order, and the court correctly found
him in contempt.

      Simmons argues that his testimony should not
have been compelled because of the alleged breach
of the plea agreement, but this argument is
without merit. "[T]he public is entitled to any
man’s evidence concerning criminal acts committed
by another." United States v. Patrick, 542 F.2d
381, 388 (7th Cir. 1976). If the court felt that
Simmons’s testimony was necessary to the Reed
retrial, the court was empowered to compel his
testimony. See id. Even assuming arguendo that
the government breached the plea agreement, this
breach would not, as Simmons implies, authorize
him to refuse the court’s order to testify.
Instead, Simmons should have testified before the
court and then brought an action against the
government to enforce the terms of the plea
agreement. For this reason, the evidence of
breach that Simmons wished to provide was
irrelevant. The district court properly refused
to allow Simmons to raise a good faith defense on
this evidence and properly denied Simmons’s
motion to dismiss. Simmons briefly argues that
his consultation of counsel immunizes him from
contempt, but "an attorney may not exculpate his
client of contempt by advising him to disobey an
order of the court." Monteleone, 804 F.2d at
1011.
B.   Sentencing Departure

      Guidelines sec. 2J1.1 requires courts sentencing
a defendant for contempt to apply sec. 2X5.1
"[b]ecause misconduct constituting contempt
varies significantly." U.S.S.G. sec. 2J1.1
application note 1. Guidelines sec. 2X5.1 directs
courts to apply the "most analogous offense
guideline." U.S.S.G. sec. 2X5.1. In this case,
the district court concurred with the
recommendation of the PSR to apply Guidelines
sec. 2J1.5, failure to appear as a material
witness, as the most analogous offense guideline.
Guidelines sec. 2J1.5 provides a base offense
level of six when a witness has failed to appear
for a felony trial, U.S.S.G. sec. 2J1.5(a)(1),
and directs courts to increase by three levels if
the failure to appear resulted in "substantial
interference with the administration of justice."
U.S.S.G. sec. 2J1.5(b).

      Simmons does not dispute that sec. 2J1.5 was
the most analogous offense guideline, and we have
previously held that sec. 2J1.5 is most closely
analogous to refusal to comply with an order to
testify. See United States v. Ortiz, 84 F.3d 977,
981-82 (7th Cir. 1996). However, the district
court felt that Simmons’s refusal to testify was
a factor that removed his conduct from the
heartland of conduct contemplated by the
Sentencing Commission and departed upward an
additional eight levels, to produce a total
offense level of seventeen. Simmons appeals this
departure, claiming that a refusal to testify on
the grounds of a breach of a plea agreement does
not constitute a factor that would remove
Simmons’s conduct from the heartland established
for sec. 2J1.5.

      This court employs a three-part approach in
reviewing a district court’s decision to depart
upward from the applicable Guideline range. See
Leahy, 169 F.3d at 439. First, we determine
whether the grounds for departure were
appropriate. See id. Second, we determine whether
the court committed any clear errors in its
findings of fact regarding the departure. See id.
Third, we consider whether the extent of the
departure was reasonable. See id.

      A district court may depart from the applicable
Guidelines range and sentence a defendant outside
that range only if "the court finds ’that there
exists an aggravating or mitigating circumstance
of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission
in formulating the guidelines that should result
in a sentence different from that described.’"
U.S.S.G. sec. 5K2.0 (quoting 18 U.S.C. sec.
3553(b)). In Koon v. United States, the Supreme
Court explained this requirement by noting that
the Sentencing Commission intended "the
sentencing courts to treat each guideline as
carving out a ’heartland,’ a set of typical cases
embodying the conduct that each guideline
describes." 518 U.S. 81, 93 (1996) (quoting
U.S.S.G. ch. 1 pt. A, intro. cmt 4(b)). In an
"atypical" case, where "a particular guideline
linguistically applies but where conduct
significantly differs from the norm" a court is
permitted to depart from the applicable
Guidelines sentencing range, U.S.S.G. ch. 1 pt.
A, intro. cmt. 4(b).

       In the instant case, the district court felt
that Simmons’s outright refusal to testify,
coupled with his change of heart as to his
decision to testify, served to distinguish
Simmons’s behavior from other behavior within the
heartland of sec. 2J1.5. Guidelines sec. 2J1.5
applies in all cases where a material witness,
for any reason, fails to testify in a criminal
trial. This guideline contemplates a broad
variety of conduct within its heartland.
Nonetheless, the district court did not err in
determining that Simmons’s conduct went beyond
the level of conduct contemplated by the
Sentencing Commission when it promulgated sec.
2J1.5.

      Simmons participated in the crimes for which
Reed was tried, and his cooperation enabled the
government to indict Reed. For this cooperation
and his testimony at Reed’s trial, Simmons was
given a significantly reduced sentence on his own
bank robbery conviction. After he received his
sentence reduction, Simmons had a change of
heart, writing to Reed that "I told them people
fuck that shit . . . never can I help them people
take your life like that. . . . I told them
people I aint with it and that’s for real."
However, even Simmons’s protestations to Reed
proved inaccurate, for Simmons would have been
willing to testify at Reed’s retrial, had the
government agreed to provide Simmons with extra
time off his sentence. The government refused to
accede to this demand, and Simmons petulantly
refused to testify, despite a clear court order
compelling him to do so. In addition, Reed
presented Simmons’s letter at his retrial in an
attempt to compromise the credibility of
Simmons’s previous testimony, which had been read
into the record. In this context, Simmons’s
refusal to testify demonstrates many elements of
obstruction, and his conduct exceeds the type of
absenteeism contemplated by the Sentencing
Commission in sec. 2J1.5. Therefore, we find that
the court’s decision to depart was reasonable
under the circumstances.
      Simmons does not contend that the district
court’s findings of fact were in error, so we
must determine only whether the extent of the
court’s upward departure was reasonable.
Sentencing courts need not adhere to a mathematic
approach in determining the extent of a
departure. Instead, "[t]he law merely requires
that district judges link the degree of departure
to the structure of the Guidelines and justify
the extent of the departure taken." United States
v. Scott, 145 F.3d 878, 886 (7th Cir. 1998).
Here, the district court determined that
Simmons’s conduct merited an eight-level
departure upward, and this determination is
articulated within the methodology of the
Guidelines and linked to the general structure of
the Guidelines, which applies a higher total
offense level to obstructive conduct like
Simmons’s. See, e.g., U.S.S.G. sec. 2J1.2
(applying base offense level of twelve for
obstruction of justice). In addition, the court
found that Simmons’s actions constituted a
repudiation of his previous agreement to
cooperate with the government. In return for his
cooperation at Reed’s first trial, Simmons’s
sentence was reduced by at least 55 months. On
this basis, the court felt that a sentence of 57
months was appropriate because it took away the
"benefit" conferred upon the defendant by the
government. The district court did not abuse its
discretion in making this determination.

III.   Conclusion

      The district court did not err in refusing to
allow Simmons to present his good faith defense
to criminal contempt, nor did the court abuse its
discretion in its departure from the applicable
Guidelines range. Therefore, the decisions of the
district court are Affirmed.
