
USCA1 Opinion

	




          November 25, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________        No. 92-1421                                   MAURICE ISABEL,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                                 ____________________                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Maurice Isabel on brief pro se.            ______________            Jeffrey  R. Howard, United  States Attorney,  and Peter  E. Papps,            __________________                                _______________        First  Assistant  United  States   Attorney,  on  Motion  for  Summary        Disposition, for appellee.                                 ____________________                                 ____________________            BOUDIN, Circuit Judge.  Appellant Maurice Isabel was  convicted                    _____________          on  April 30, 1990 of conspiring to  file false tax documents and          conspiring to launder drug trafficking proceeds, in violation  of          18 U.S.C.     371, 1956(a)(1)(B)(i).   On July  23, 1990, he  was          sentenced to fifty-seven  months' imprisonment.   On appeal,  his          conviction was affirmed.   United States v. Isabel, 945 F.2d 1193                                     _____________    ______          (1st Cir.  1991).  Isabel then  filed a motion under  28 U.S.C.            2255  seeking  to  have  his  sentence  vacated,   set  aside  or          corrected.   The district court  denied relief, and  Isabel filed          the present appeal.            On this appeal,  Isabel argues that the district court erred at          sentencing by  enhancing his sentence for  obstruction of justice          and  by  failing  to reduce  his  base offense  level  to reflect          acceptance  of responsibility.   He  also says  that he  received          ineffective assistance of counsel at sentencing and that findings          required by  Fed. R.  Crim. P.  32(c)(3)(D) were  not made.*   We          affirm in part and remand in part.                           I.  THE OBSTRUCTION ENHANCEMENT                           I.  THE OBSTRUCTION ENHANCEMENT               Isabel's primary claim  on the appeal is  a challenge to  an          obstruction of  justice enhancement that the  district court made          in  originally  sentencing him.    The  court enhanced  his  base                                    ____________________        *In  his reply  brief, Isabel  makes several  arguments that  were not        presented  to the  district  court and  which  we, therefore,  do  not        consider.   See United  States v. Valencia-Copete, 792  F.2d 4, 5 (1st                    ___ ______________    _______________        Cir.  1986); Porcaro  v. United States,  784 F.2d  38, 39  (1st Cir.),                     _______     _____________        cert. denied, 479 U.S.  916 (1986).  In particular,  Isabel alleges in        ____  ______        his reply brief that  his counsel failed to represent  him effectively        in his  direct appeal, but his  section 2255 motion alleged  only that        his counsel had been ineffective at sentencing.          offense level under  section 3C1.1 of  the Sentencing  Guidelines          because Isabel  made false statements to  investigators after his          arrest.  The guideline in effect at the  time of sentencing reads          as follows:   "If the defendant willfully  impeded or obstructed,          or attempted to impede or obstruct, the administration of justice          during the  investigation or prosecution of  the instant offense,          increase  the  offense  level by  2  levels."   U.S.S.G.    3C1.1          (1989).  It was Isabel's position at sentencing, as now, that any          false or misleading statements he made at the time of  his arrest          did not in fact hamper the investigation.               In  his section 2255  motion, Isabel argued  to the district          court that an amendment to the commentary to section 3C1.1, which          occurred after  his sentencing, made clear that  the court should          not have applied the enhancement  in his case.**  The version  of          the commentary in effect when he was sentenced did not explicitly          address the question whether false or misleading statements  that          fail to mislead  still merit the enhancement.   It did,  however,          contain  general  language   stating  that   the  section   3C1.1          enhancement applied  to  "a  defendant  who  engages  in  conduct          calculated to mislead or deceive authorities . . . in respect  to          the instant offense."  U.S.S.G.    3C1.1, intro. comment. (1989).                                    ____________________        **Isabel was sentenced in July, 1990, and the new commentary amendment        became  effective on  November 1,  1990.   We reject  the government's        claim,   mysteriously   presented   under   a  heading   relating   to        "relitigat[ion]  [of] an  issue already  decided," that  Isabel waived        this  argument by  not raising  it in  his direct  appeal.   Since the        amendment  did  not  become  effective  until  after  Isabel had  been        sentenced and after his  direct appeal had been docketed  and briefed,        he could not readily have raised that issue on appeal.                                            3          Based  on  the  guideline's  language,  the  pre-sentence  report          recommended  an  enhancement  for   obstruction  which,  after  a          sentencing hearing, the district court found to be justified.               Several months after Isabel was sentenced, the commentary to          section  3C1.1 was amended.  It  now states that materially false          statements  to  law   enforcement  officers  "that  significantly          obstructed or impeded  the official investigation  or prosecution          of the instant offense" warrant an enhancement,  but other "false          statements, not  under oath," to law enforcement officers do not.          U.S.S.G.    3C1.1, application notes  3(g) and  4(b) (1992).   We          have interpreted that  provision to mean precisely what  it says:          that an enhancement  may be made for unsworn, false statements to          law enforcement officers  only if the  government shows that  the          statements  significantly  obstructed  or  impeded  the  official          investigation  or prosecution of the offense.   See United States                                                          ___ _____________          v.  Manning, 955 F.2d 770, 774-75 &  n.5 (1st Cir. 1992).  Isabel              _______          argues that  his statements  did  not obstruct  the  government's          investigation or prosecution,  and that thus  the district  court          erred in enhancing the base offense level used in calculating his          sentence.               In  rejecting the  section 2255  motion, the  district court          found  that Isabel's  argument had no  "legal merit"  because the          sentencing court was  required to apply the law  in effect at the          time  of sentencing.  The court also  stated that its findings at          the  time  of sentencing  meant  that it  would  necessarily have          enhanced Isabel's sentence even under the amended commentary.  We                                          4          think that the district judge's original  decision to enhance was          entirely understandable in  light of the general language  of the          1989  guideline and commentary.  But  we conclude for the reasons          stated below  that  the  new  and  explicit  commentary  language          favoring  Isabel,  contained  in  the  subsequent  amendment,  is          properly  treated as  a clarification  rather than  a substantive          change.  The pertinent language, as we noted at the outset, makes          the guideline inapplicable to an  unsworn lie to law  enforcement          officials that does  not in fact hinder an investigation.  Giving          Isabel the benefit  of that clarification, we do not believe that          the district court's findings to date, either at sentencing or in          the section  2255  proceeding,  show  that  the  enhancement  was          warranted.               It is true that a sentencing court applies the law in effect          at  the date  of  sentencing.   Nevertheless, in  interpreting an          applicable guideline virtually all circuits have found or  stated          that  it is  appropriate to  consider post-sentencing  amendments          that  clarify  but do  not  substantively  change the  guideline.          Among numerous cases to this effect are United States v. Perdomo,                                                  _____________    _______          927 F.2d 111, 116-17 (2d Cir. 1991), United States v. Howard, 923                                               _____________    ______          F.2d  1500, 1504  & n.4  (11th Cir.  1991), and United  States v.                                                          ______________          Caballero,  936 F.2d  1292,  1299  n.8  (D.C. Cir.  1991),  cert.          _________                                                   ____          denied, 112 S. Ct. 943  (1992), but many more could be cited.  We          ______          readily follow  this uniform approach  and turn to  the guideline          and amendment at issue in this case.                                          5               It is a close question whether the commentary amendment here          in  issue should be treated as a  "clarification" or instead as a          substantive "revision" of the guideline.  These are not clear-cut          categories.   Where the line is to  be drawn may well reflect not          only language and  intent but also implicit  judgments as to  the          Sentencing  Commission's  function  and  the  role  of  guideline          commentary.  In  this case, the language of the guideline itself,          unqualified  by  any  contrary  commentary  prior  to  the   1990          amendment, provides an enhancement for a defendant who "attempted          to impede or  obstruct" an investigation.   This language  surely          permits--even encourages--one to think that a deliberate material          lie,   although   unsuccessful,   might  qualify   as   attempted          obstruction.   Indeed, a number of circuits  so held prior to the          1990 amendment.   See e.g., United States  v. Blackman, 904  F.2d                            ___ ___   _____________     ________          1250, 1259  (8th Cir. 1990);  United States  v. Irabor, 894  F.2d                                        _____________     ______          554, 556 (2d. Cir. 1990).               Nevertheless, the Sentencing Commission regards  its amended          commentary on the obstruction  issue as a clarification, for  the          Commission stated that "[t]his amendment clarifies  the operation          of  3C1.1 .  . . ." U.S.S.G. App.  C at 166 (1992).   The amended          commentary does not in any sense read the term "attempted" out of          the  guideline,   nor  prevent  all  attempted  but  unsuccessful          obstructions  from   triggering  an  enhancement.     Rather,  it          modulates the  guideline by  excluding  some actions  that  could          literally be described  as attempts (and indeed some actions that          could literally be described as obstructions), presumably on  the                                          6          ground  that  they   are  not  significant   enough  to   warrant          enhancement.***   We  give due  weight  to the  Commission's view          not merely as the drafter of the guideline  and the amendment but          as the expert entity with on-going responsibility for  clarifying          and amending the guidelines.****               One sister circuit has already held that the  1990 amendment          to  the section  3C1.1 commentary,  insofar as  it dealt  with an          attempt  to obstruct, was  a clarifying  amendment and  should be          applied to  a defendant who  was sentenced before  the amendment.          United States v. Fiala, 929 F.2d 285, 290 (7th Cir.  1991).  This          _____________    _____          court,  without directly  ruling on  the  present issue  (a post-          amendment sentence was involved), has described that language  as          "clarify[ing]" the guideline.  United States v. Moreno, 947  F.2d                                         _____________    ______          7, 10 (1st Cir. 1991).  Finally, although  sentencing policy is a          matter primarily  for Congress and the  Commission, the amendment          offers a  realistic and  lenient solution  for the defendant  who          blurts out  false answers at the  time of arrest but  does not in                                    ____________________        ***For example, a  threat to  a witness qualifies  for an  enhancement        even  if unsuccessful whereas "fleeing  from arrest" does  not even if        the flight is (temporarily)  successful.  See application  notes 3(a),                                                  ___        4(d).   Excluded  conduct,  such as  an  unsworn unsuccessful  lie  or        successful flight, can still affect the choice of sentence "within the        otherwise applicable guideline range."  Application note 4.        ****The  Sentencing  Commission  has  authority to  recommend  that  a        reduction in the guideline range be made retroactive (see 28 U.S.C.           994(o), (u); 18 U.S.C.   3582(c)(2)), but we do not rely on that point        here.    The  Sentencing  Commission did  not  invoke  that  authority        (compare U.S.S.G.   1B1.10  listing specific amendments to  be applied        retroactively)  and,  in  any  case,  its  authority  extends only  to        permitting,  not compelling,  the district  court to  give retroactive        effect to an admitted substantive change.  18 U.S.C.   3582(c)(2).                                          7          fact hinder the inquiry.  Thus, we follow Fiala and hold that the                                                    _____          amendment applies in this case.               In its  section 2255 decision, the  district court concluded          that Isabel's conduct would constitute an obstruction of  justice          even under the  amended commentary, but  the court's  explanation          seems to  us to be  flawed.  The  district court's  memorandum on          this point  briefly referred  to  the government's  statement  at          sentencing,  citing to specific  pages of the  transcript.  These          pages, however, show that  the prosecutor at sentencing took  the          view that "the success or lack  of success of Mr. Isabel's  lies"          should not be  the test, an understandable  position in light  of          then existing  guideline  language  and  commentary.    Nor  does          anything in the evidence described in the prosecutor's  statement          show an actual  obstructive effect.  The  facts available to  us,          admittedly not complete, suggest that Isabel's lies may  well not          have hindered the investigation.               Under these circumstances, we think the issue of enhancement          for  obstruction of justice needs to  be remanded to the district          court for a  new determination under the clarified guideline.  If          the government  can show that  Isabel's statements  significantly          obstructed  the inquiry,  the enhancement will  stand; otherwise,          resentencing will  be required based on a  reduced offense level.          On remand, assuming  the government believes that it can make the          obstruction showing that Manning  requires, the procedural course                                   _______          to follow is  a matter for  the district court  to decide in  the          first instance.                                          8                          II.  ACCEPTANCE OF RESPONSIBILITY                          II.  ACCEPTANCE OF RESPONSIBILITY               In his  second  claim  of  error,  Isabel  argues  that  the          district court should  have reduced his base offense level by two          points for acceptance  of responsibility under  section 3E1.1  of          the guidelines.   As  already noted,  at his  original sentencing          Isabel  was found  to have  obstructed justice.   He  claims that          under  guideline  commentary   in  effect  then   and  now,   the          determination of  obstruction precluded  the court from  granting          him any reduction for acceptance of responsibility.  See U.S.S.G.                                                               ___            3E1.1, application note 4 (1989) (obstruction finding precludes          acceptance finding except  in "extraordinary"  case); id.  (1992)                                                                __          (same).  Because  the district court  reaffirmed the  obstruction          finding in deciding  the present section  2255 motion, the  court          had  no occasion  to  revisit the  question  whether, absent  the          obstruction  finding,   a  reduction   might  be  warranted   for          acceptance of responsibility.               The government claims that Isabel waived this acceptance  of          responsibility claim by not raising it on direct appeal and that,          in order to raise the issue now, he must show cause and prejudice          under the Frady standard.  United States v. Frady, 456  U.S. 152,                    _____            _____________    _____          168  (1982).   In the  draft pre-sentence  report, the  probation          officer   apparently  recommended   against  an   adjustment  for          acceptance  of  responsibility.     Isabel's  counsel  sought  an          adjustment of the  wording in the report on the acceptance issue,          but  he did  not challenge  the denial  outright.   The probation          officer  then  revised  the  report  language  but  continued  to                                          9          recommend a denial  of any adjustment on  the ground that  Isabel          had admitted  to  tax evasion  but  denied involvement  in  money          laundering,  thereby failing  to accept  full responsibility  for          "his criminal  conduct" under  U.S.S.G.    3E1.1(a)  (1989).   At          sentencing, Isabel's counsel did not pursue the matter.               This sequence  suggests that defense  counsel had  concluded          that the acceptance of responsibility claim could not succeed "on          the merits," independent of any  bar presented by an  obstruction          finding.  As we explain below, the failure to raise the issue was          certainly not  ineffective assistance of counsel.   Assuming that          counsel had  deliberately abandoned the claim  because he thought          it hopeless  on the  merits, this  would ordinarily  constitute a          waiver,  and  prevent   its  resurrection  in   a  section   2255          proceeding.  Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987).                       ________   _____               What  gives us pause is the  district court's suggestion, in          ruling on the  section 2255 motion, that Isabel's counsel may not          have  pursued  the  acceptance issue  precisely  because  counsel          believed--in the district  court's words--that  "having lost  the          battle over the  issue of  obstruction of  justice, he  [counsel]          could  not possibly  win the  war with  respect to  acceptance of          responsibility."  If counsel did  not pursue the acceptance issue          because the obstruction finding made him believe that pursuit  to          _______          be hopeless,  then we think  that sufficient "cause"  would exist          for not raising the issue at sentencing.  Cf. United States v. Di                                                    ___ _____________    __          Bernardo, 880  F.2d  1216,  1227  (11th Cir.  1989).    There  is          ________          arguably prejudice  as well since,  if he  succeeded on both  the                                          10          obstruction  and  enhancement issues,  Isabel's  sentencing range          would be reduced.               Under these  circumstances, we  believe  that the  just  and          proper  course  is  a  contingent  remand  on  the  acceptance of          responsibility  issue.     If  the  district   court  finds  that          obstruction is  established even under  the clarified  guideline,          that will dispose of any ground for reexamining the acceptance of          responsibility  issue.    Should  the  court  instead  find  that          obstruction  is not  proved, then  we believe the  district court          should determine  whether the acceptance of  responsibility claim          was waived and,  if it  was not,  then it  should determine  that          claim on  the  merits.    The probation  officer  may  have  been          entirely correct in urging, without reference to the  obstruction          issue,   a   denial  of   any   adjustment   for  acceptance   of          responsibility.*****    But  we  prefer  this  evaluation  to  be          made by a court familiar with the trial record and the defendant,          especially given  the "great  deference"  accorded to  the  trial          judge  in appraising  acceptance of  responsibility.   U.S.S.G.            3E1.1, application note 5 (1989 and 1992).                        III.  THE INEFFECTIVE ASSISTANCE CLAIM                        III.  THE INEFFECTIVE ASSISTANCE CLAIM               Isabel's  third argument  on appeal  is a  challenge to  the          district  court's determination  that he  had  received effective          assistance of counsel at sentencing.  Such a determination by the                                    ____________________        *****It goes almost without saying that, if the court agrees  with the        probation officer  on the merits,  then the waiver  issue need not  be        resolved.                                          11          fact-finder may be  overturned only for clear error.  McCarthy v.                                                                ________          United States, 764 F.2d 28, 30 (1st Cir. 1985).  The burden is on          _____________          Isabel  to  show   that  counsel  failed   to  render   effective          assistance.  See Panzardi-Alvarez v. United States, 879 F.2d 975,                       ___ ________________    _____________          983 (1st  Cir. 1989) (citing  Strickland v. Washington,  466 U.S.                                        __________    ___________          668, 689  (1984)), cert. denied,  493 U.S. 1082 (1990).   We have                             _____ ______          reviewed the record carefully, and have not found any clear error          in the district court's determination.               Counsel's arguments  on the obstruction of  justice issue at          sentencing  were  vigorous, as  his  defense of  the  entire case          appears to have been.  He obtained  the dismissal of three counts          of the  indictment after  opening statements  were made,  and the          jury  acquitted Isabel  of  other  counts.   Counsel  also  filed          several  motions challenging  the jury's  verdict.   Although the          court  ultimately  denied those  motions,  it  noted that  "[t]he          instant cases  were well  tried and  hard fought."   Furthermore,          after hearing counsel's  argument on the  obstruction of  justice          issue at sentencing,  the court enhanced  Isabel's offense  level          for obstruction of  justice but acknowledged that  it had been  a          "close  question."  In a post-sentence memorandum, the court said          that  Isabel's counsel  had  argued "ably  and  earnestly" for  a          downward departure.               In this  court, Isabel  points to  his counsel's  failure to          object  at sentencing  to a  "possible erroneous  enhancement" of          three points under section 2S1.1(b)(2) of the guidelines or argue          for a "possible  reduction" of two to  four points under  section                                          12          3B1.2.   The evidence submitted at  trial showed that Isabel knew          that the  funds  he  laundered  came  from  unlawful  dealing  in          narcotics.   United  States v.  Isabel, 945  F.2d at  1196, 1202.                       ______________     ______          Consequently,  we do  not see how  counsel could  reasonably have          argued  that  Isabel  should  not  have  received  a  three-point          increase  under  section  2S1.1(b)(1)  (the  subsection  to which          Isabel apparently means  to refer), which  requires the  increase          where the defendant knows the  laundered funds were the  proceeds          of narcotics  trafficking.   U.S.S.G.    2S  1.1(b)(1) (1989  and          1992).               Likewise,  it would have made no  sense for counsel to argue          that Isabel was  a minor or minimal participant in the conspiracy          to launder drug money and file false tax returns, meriting a base          offense level reduction under section 3B1.2.  Isabel was a direct          and essential  party  to  that  conspiracy.   The  recitation  of          evidence in our  prior decision amply bears  out that point,  945          F.2d at 1195-96, and we need not repeat the facts.   It is beside          the  point   that  Isabel  played   no  role  in   the  narcotics          trafficking.  The "offense" for which  he was sentenced concerned          only the laundering  and tax reporting scheme, and in that scheme          his "role" was that of a  central player.  U.S.S.G.   3B1.2 (1989          and 1992).   See United States v.  Richardson, 925 F.2d 112,  115                       ___ _____________     __________          (5th Cir.), cert. denied, 111 S. Ct. 2868 (1991).                      ____  ______               Finally, although counsel did not argue for an acceptance of          responsibility reduction, any such argument had little chance  of          succeeding.   As the district  court noted,  Isabel was found  to                                          13          have  obstructed  justice.   For  that  reason,  a reduction  for          acceptance of responsibility was highly unlikely.  See U.S.S.G.                                                               ___          3E1.1, application note 4 ("[c]onduct resulting in an enhancement          under  3C1.1 .  . . ordinarily indicates  that the defendant  has          not  accepted  responsibility  for  his  criminal   conduct"  and          adjustments  under  both   sections  should  be   made  only   in          "extraordinary cases"); United States v. Aymelek, 926 F.2d 64, 69                                  _____________    _______          (1st Cir.  1991)  (the  defendant  who  obstructs  justice  "will          thereby   effectively  forfeit   a  credit   for  acceptance   of          responsibility"  under the  guidelines); United  States v.  Mata-                                                   ______________     _____          Grullon,  887 F.2d 23, 24 (1st Cir. 1989) (defendant's falsehoods          _______          "militate against" a reduction for acceptance of responsibility).               Isabel  suggests   that  an  adjustment  in   his  case  was          nevertheless warranted under U.S.S.G.   3E1.1, application note 2          (1992).   That  note  says that  a  defendant who  goes  to trial          instead   of  pleading   guilty  is   ordinarily  not   accepting          responsibility but, as  a supposedly "rare"  exception, the  note          cites the case of a defendant  who goes to trial to challenge the          legal applicability of  a statute to his conduct.  Isabel asserts          that he did admit to  his actual conduct and denied only  that it          constituted money laundering under the  relevant statute.  If so,          this circumstance  might avoid the effect of  the not-guilty plea          as a bar to the  reduction, but it does nothing to remove the bar          interposed by the  obstruction finding.   Isabel's counsel  could          reasonably have concluded that so long as the obstruction finding                                          14          stood, the court  would refuse  any reduction  for acceptance  of          responsibility.               As the district  court said, with such  little likelihood of          success in challenging the computations, counsel reasonably could          have  decided  that  it  made  more  sense  to  seek  a  downward          departure, as  he  did.    Isabel concedes  that  counsel  argued          "eloquently" for the  downward departure.  We affirm the district          court's  finding  that  Isabel received  effective  assistance of          counsel at sentencing.   See Barrett v.  United States, 965  F.2d                                   ___ _______     _____________          1184, 1193 & n.18 (1st Cir. 1992) ("[W]e may not find a deficient          professional performance in  the constitutional sense unless  the          challenged  decisions were  not `plausible  options.'") (citation          omitted).    Nor  did  the  court  err  in  failing  to  hold  an          evidentiary  hearing on this issue, for  Isabel has pointed to no          material fact that  has remained unresolved by  the record.   See                                                                        ___          Ouellette v. United States, 862 F.2d 371, 377-78 (1st Cir. 1988).          _________    _____________                                  IV.  RULE 32(3)(D)                                  IV.  RULE 32(3)(D)               Finally, Isabel contends  that the  district court  violated          Fed.  R. Crim.  P. 32(c)(3)(D)  by omitting  to make  findings on          unresolved controverted issues posed by the pre-sentence  report.          We will assume arguendo that this  issue may be considered.   See                         ________                                       ___          United States v.  Gattas, 862 F.2d 1432,  1433, 1434 & n.4  (10th          _____________     ______          Cir. 1988) (Section 2255 relief is available for Rule 32(c)(3)(D)          violations  where the  failure to  comply with  the rule  was not          discovered until after the time for direct appeal  and for a Rule          35  motion had expired).  However,  at the sentencing hearing the                                          15          district court did resolve the only  open factual issue presented          to  it, relating to the obstruction of  justice issue.  The court          also recorded its  finding on this issue  in a memorandum  issued          after the sentencing hearing.               Rule   32(c)(3)(D)  provides   that  the   district  court's          resolution of disputed issues at sentencing shall be  appended to          the pre-sentence  report made available  to the  Bureau.  In  his          reply filed in this court, responding to  the government's motion          for summary affirmance, Isabel says (possibly for the first time)          that  the Bureau of Prisons has  advised him that this memorandum          of  sentencing  hearing  is not  in  its records.    The district          court's  disposition  of the  obstruction  issue  on remand  will          presumably  supersede  its  earlier  finding,  whether  the court          reaches  its original conclusion or the  opposite one.  We assume          that in due course the district court will transmit the record of          its disposition to the Bureau of Prisons.               The  district court's  order denying  Isabel's section  2255          motion  is affirmed  in  part and  remanded in  part  for further                     ______________________________________________________          proceedings in accordance with this opinion.          ___________________________________________                                          16
