                        Revised November 6, 1998

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                        Nos. 96-11443 & 96-11588
                          _____________________


           UNITED STATES OF AMERICA,

                                 Plaintiff-Appellee

           v.

           CHARLES RANDELL GREER,

                                 Defendant-Appellant.

_________________________________________________________________

          Appeals from the United States District Court
                for the Northern District of Texas
_________________________________________________________________
                         October 16, 1998
Before KING, SMITH and PARKER, Circuit Judges.

KING, Circuit Judge:

     Defendant-appellant Charles Randell Greer appeals the

district court’s enhancement of his sentence for obstruction of

justice.   We affirm.

                I.   FACTUAL AND PROCEDURAL BACKGROUND

     The history of this case is long and complicated.    During

the summer of 1994, defendant-appellant Charles Randell Greer, a

convicted felon with a lengthy criminal record, one previous

determination of incompetency, and numerous commitments to

psychiatric facilities, was homeless.     Joyce Cantrell, a resident
of Lubbock, Texas for whom Greer had done odd jobs, offered to

let him stay in her garage apartment, and he moved in on July 16,

1994.    That evening, he asked to use the telephone in Cantrell’s

house.    Cantrell allowed him to do so, but when he finished his

conversation, he was distraught and, without permission, entered

her bedroom and lay down on her bed.      When Cantrell asked him to

leave, he grabbed her wrists and told her, “Don’t cause me any

problems.”    In order to appease Greer, Cantrell offered to cook

him dinner, and when he returned to the bedroom, she escaped from

the house and called the police.       Greer had left by the time the

police arrived, but when Cantrell returned the next morning, she

discovered human excrement smeared in the bathroom and bedroom,

and a .22 caliber revolver was missing.

     The evidence at trial showed that after Cantrell left her

house on the evening of July 16, Greer went to the home of Arthur

Follows, another Lubbock resident for whom he had done odd jobs.

Follows had befriended Greer in the past, giving him a ride to

the hospital when Greer claimed that his grandfather had

attempted suicide and then to Greer’s uncle’s house when Greer

decided that he would rather see the uncle.      At about 10 or 11

p.m., an agitated Greer arrived at Follows’s home and asked to

take a shower.    Follows permitted him to do so, but told him that

he would have to leave afterward.      After Greer showered, however,

he went to Follows’s bedroom.   Normally soft-spoken and shy, he



                                   2
began cursing loudly, telling Follows that no one cared about

him.

       At that point, Follows ordered Greer to leave.   Greer then

struck Follows, who fell back onto the bed, and bound him at

gunpoint.    He told Follows that he wanted Follows to drive him

away from Lubbock because he wanted to kill himself, and the two

men left in Follows’s car.    Greer, who kept the gun pointed at

Follows with his finger on the trigger, told Follows to drive him

to Clovis, New Mexico.    During the journey, Greer drank heavily

and continued to complain that no one cared about him.    When

Follows reached Clovis, he began to pull into the bus station,

enraging Greer, who jammed the revolver into Follows’s ear and

then his side.    Greer ordered Follows to drive to Albuquerque,

but when they arrived, Greer became very sad, apologized to

Follows, and asked to be taken to a motel, where he paid for a

room with Follows’s Mastercard.    He indicated that he had

achieved the purpose of the kidnapping--to be a long way from his

family and friends when he committed suicide--and apologized

again.    He then allowed Follows to leave and entered the motel

room alone.    Follows immediately called the police, who arrested

Greer at the motel.    A federal grand jury indicted Greer on five

counts: (1) kidnapping; (2) using and carrying a firearm during

and in relation to a crime of violence; (3) possession of a

stolen firearm; (4) transporting a stolen firearm in interstate

commerce; and (5) being a felon in possession of a firearm.

                                  3
     The post-arrest events were even stranger than the

kidnapping itself.   After Greer’s arrest, a doctor attached to

the Bernalillo County Detention Center in New Mexico gave him a

prescription for two anti-psychotic drugs, Thorazine and Elavil,

as well as an anti-depressant and medication to counteract the

side effects of the anti-psychotics.    Greer was also found

incompetent to stand trial on the New Mexico state charges

stemming from Follows’s kidnapping.    On November 14, 1994,

pursuant to a joint motion filed by Greer and the Government, the

district court ordered Greer committed to the custody of the

Attorney General to undergo a competency evaluation.    After a 1-

1/2 month evaluation at the United States Medical Center for

Federal Prisoners in Springfield, Missouri (FMCP-Springfield),

Greer returned to Lubbock.    The district court held a competency

hearing on April 21, 1995.    After local jail personnel and the

FBI case agent testified to evidence tending to demonstrate

Greer’s competency, the Government called Dr. Richard Frederick,

Greer’s forensic psychologist at FMCP-Springfield, who testified

not only that Greer was competent to stand trial, but that he was

feigning psychotic illness.    Dr. Frederick stated that he came to

his conclusion based, in part, on a three-page narrative Greer

wrote that cogently set forth his “understanding” of the crime--

namely, that Follows had sexually assaulted him and had concocted

the kidnapping story to save himself from punishment.    Greer

called only one witness, a local psychiatrist named Preston Shaw,

                                  4
who testified that Greer was incompetent.    The district court

determined that Greer was competent.

     As trial preparation continued, Greer’s bizarre behavior

prompted his attorney to file another motion to determine

competency.1    The district court initially denied the request but

later granted it after the Government declined to oppose the

motion.    Greer was examined by Dr. Ross Taylor, a psychiatrist

with the Texas Department of Corrections.    Taylor determined that

Greer was incompetent, the Government acquiesced to allowing

Greer to be adjudicated incompetent, and on February 8, 1996, the

district court executed an agreed order committing Greer to the

custody of the Attorney General until such time as his competency

was restored.

     On June 25, 1996, after receiving a psychiatric evaluation

from the Federal Medical Center in Rochester, Minnesota (FMC-

Rochester), the district court ordered a second competency

hearing.    On July 17, 1996, the court convened a competency

hearing at which Dr. Mary Alice Conroy, a psychologist who had

evaluated Greer during his commitment at FMC-Rochester,

     1
        Defense counsel received correspondence from Greer
indicating that he believed that the courtroom was a church, the
judge was a preacher, and the first competency hearing was a
funeral. In other letters, Greer claimed that his attorney was
trying to kill him and complained of a loud “ringing.”   Greer
also told his attorney that he believed he was charged with
killing several people and did not remember Arthur Follows or
understand that he was accused of kidnapping him. Finally, there
was no evidence that Greer understood the Government’s plea
bargain.

                                  5
testified.    Conroy stated that because Greer was referred for

restoration of competence, the medical staff initially presumed

that he suffered from a serious mental disease that rendered him

incompetent.    But after observing Greer for nearly two months,

Greer’s treating psychiatrist, Dr. Sigerson, was unable to find

any active psychotic process or serious mental disease.      During

Greer’s case conference, in which six members of the medical

staff involved in Greer’s treatment and evaluation, including Dr.

Sigerson and Dr. Conroy, participated, concluded that there was

no evidence of psychotic process.    Conroy opined that Greer was a

malingerer, although she conceded that Greer had a personality

disorder with antisocial and borderline tendencies that could not

be treated.    As to the nature of Greer’s disorder, Conroy

testified: “A character disorder, unlike a mental illness, does

not disrupt cognitive processes or cause confusion, it doesn’t

compel anyone to do anything.    They do not lose control.    A

person who has a character or personality disorder has control

over his/her actions.”

     The day before trial, the district court found not only that

Greer was competent but that he had feigned mental illness:

     On July 17, 1996, the Court conducted an evidentiary hearing
     on this matter, wherein the Court heard the testimony of Dr.
     M.A. Conroy, a psychologist employed by the Bureau of
     Prisons at FMC-Rochester. Dr. Conroy evaluated Defendant
     Greer. Dr. Conroy testified, as did Dr. Richard Frederick
     of FMCP-Springfield during the hearing held April 21, 1995,
     that Defendant Greer was not even suffering from a severe
     mental disease or defect. Both experts believe Defendant
     Greer to be malingering. Based on these experts’ testimony

                                    6
     and the exhibits introduced by the Government during the
     July 17, 1996 and April 21, 1995 hearings, the Court
     concludes, by a preponderance of the evidence, that
     Defendant Greer is able to understand the nature and
     consequences of the proceedings against him and to assist
     properly in his defense. In this regard, the Court adopts
     the findings of Dr. Conroy and Dr. Frederick, as set forth
     in their reports . . . .

     Greer’s trial began on August 7, 1996.   At approximately

10:30 a.m. on the first day, after voir dire and while the

attorneys were making peremptory challenges, the marshals

informed the district court that Greer had taken his clothes off

and attempted to flush them down the holding cell toilet.    During

the resulting delay, Greer spit up between ten and sixteen half-

dollar-sized splotches of blood and was taken to a local

hospital.   In Greer’s absence, at approximately 11:15 a.m., the

court called the names of the twelve jurors, seated them,

administered their oath, and recessed the trial until 1:30 p.m.

After Greer returned from the hospital, the court stated, outside

the presence of the jury:

          Just to backspace a bit, yesterday I entered an order
     finding the Defendant Mr. Greer competent to stand trial.
     In that order I found and find today that Mr. Greer is a
     malingerer, that he is a feigner, and that he is a fraud to
     medical personnel, and he has been doing this for a period
     of time now. I believe that he is competent to stand trial,
     and I am fully prepared to continue with this trial this
     afternoon.
          . . . .
          At approximately 10:15 we recessed the court for 15
     minutes so that the attorneys could conduct their peremptory
     challenges to the jury panel in order to select this jury.
     During that recess, the court was informed that Mr. Greer,
     who had been taken downstairs to the Marshal’s holding cell,
     had taken off all of his clothes, and apparently had
     attempted to flush those clothes down the toilet. In

                                   7
     addition, Mr. Greer apparently tried to start throwing up
     some type of blood.
          . . . .
          It is now 1:24. Mr. Greer is back in court, and I have
     not been advised as to what the findings were at the
     emergency room, and I would entertain any statement on the
     record at this point.

     The prosecution then called the jail’s director of infirmary

services, Lauren McQuitty, to testify.   McQuitty stated that an

evaluation of Greer at the hospital had determined a mucosal

abrasion in his mouth to be the cause of the bleeding; that such

abrasions commonly were caused by self-inflicted scratches; and

that Greer’s fingernails were about an inch long.   McQuitty also

noted that, from the appearance of the blood, it appeared that

Greer was gagging himself, rather than vomiting blood from the

stomach, intestine, or liver.   After McQuitty’s testimony, the

court stated the following on the record, but outside the

presence of the jury:

     I am finding based upon the medical report that the
     defendant created an abrasion in his mouth, so as to cause
     some bleeding, which in my mind is a further deliberate
     attempt on his part--I am talking about Mr. Greer--to derail
     the trial of this case.
          Now, Mr. Greer, before I bring the jury back in, I want
     you to listen to me very carefully. I think you are a
     malingerer. I have found you competent to stand trial. We
     are going to have this trial. If you act up or try to
     disrupt this trial while you are in this courtroom, I am
     going to have you removed from this courtroom, and we will
     try the case in your absence.
          Mr. Greer, I have told you this once before, but you
     had better get very serious about defending this case. . . .
     Now, you better take these thoughts into consideration, get
     with the program, and stop acting like a fool.

Greer responded, “Yes, sir, your honor.”


                                 8
       Toward the end of the day, during the testimony of an

Albuquerque, New Mexico police officer, Greer suddenly jumped out

of his chair and shouted, “Get it away.     Stop.”   Greer yelled

“Stop!” once more before he was subdued.     Outside the presence of

the jury, the court ordered Greer removed from the courtroom, and

the proceedings continued without Greer for the remainder of the

first day.

       At the beginning of the second day of trial, the court

conducted another hearing outside the jury’s presence.      During

the hearing, defense counsel noted that he had visited Greer

earlier that morning and, in response to the question of whether

he wanted to appear in court that day, Greer asked, “Why are you

trying to kill me?”    In an attempt to calm Greer, counsel said,

“Charles, nobody is trying to kill you.     I am just trying to help

you.    I need you to help yourself and talk to me about your

case.”    Greer responded, “Fuck you.   Get out of here.”   After

repeating the expletive some ten to fifteen times, Greer lunged

at counsel in an attempt to hit him through the bars in the

conference room.    Greer stated: “You and that judge are going to

get investigated . . . . I am going to call the judicial conduct

commission on that damn judge, and I am going to get the State

Bar on you.”    The court then found that Greer had “consciously,

deliberately, and voluntarily” waived his right to be present

during trial.    The jury convicted Greer in his absence of all the

counts against him.

                                  9
     At sentencing, the Government objected to Greer’s

presentence report because it did not enhance his sentence for

obstructing justice.    The Government argued that because Greer

had feigned mental illness prior to and during (by flushing his

clothes in the toilet, scratching his throat to give the

appearance of throwing up blood, and shouting and jumping out of

his chair) trial, the court should increase his offense level

pursuant to Sentencing Guidelines § 3C1.1.2   The district court

granted the Government’s objection, resulting in a two-level

offense level enhancement for obstruction of justice.    The court

stated at sentencing:

     I will add two points for obstruction of justice. I find
     that the Defendant is a malingerer, that he feigned a mental
     illness, thereby causing the Court and the Bureau of Prisons
     to waste a considerable amount of time and effort in
     addressing that particular situation.
          I also find that during the trial the Defendant
     intentionally flushed his clothing down the toilet in the
     Marshal’s holding cell, he scratched the back of throat in
     an attempt to cough up blood, and thereby stall the
     proceedings. It is my recollection that we had the
     Defendant taken to the emergency room at U.M.C. to have that
     checked. We had a nurse come over and look, a paramedic
     come over and look at his throat.
          The Court recalls that during the trial at one point
     the Defendant did leap out of his chair and yell at a
     witness, requiring the Court to have the Defendant removed
     from the Courtroom. All of these facts amount to an
     intentional
     obstruction of justice on the part of the Defendant.


     2
        Section 3C1.1 reads: “If the defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the investigation, prosecution,
or sentencing of the instant offense, increase the offense level
by 2 levels.”

                                    10
Without the obstruction of justice enhancement, Greer’s

sentencing range for counts 1, 3, 4, and 5 would have been 100-

125 months.   His conviction on count 2 under § 924(c) carried a

sixty-month sentence to be imposed consecutively to any other

term of imprisonment.    The obstruction of justice enhancement

increased Greer’s sentencing range on counts 1, 3, 4, and 5 to

120-150 months.    The district court imposed a 150-month sentence

for count 1 (kidnapping) and concurrent sentences on counts 3

through 5.    The court then imposed a sixty-month sentence for

count 2, to run consecutive to the other sentences, as required

by law.   Greer thus received a 210-month sentence with the

obstruction of justice enhancement, whereas without the

enhancement the maximum sentence he could have received was 185

months.   Greer appealed.




                        II.   STANDARD OF REVIEW

     We review the district court’s application of the Sentencing

Guidelines de novo, see United States v. Sylvester, 143 F.3d 923,

931 (5th Cir. 1998), and its factual findings, such as a finding

of obstruction of justice, for clear error, see United States v.

Upton, 91 F.3d 677, 687 (5th Cir. 1996), cert. denied sub nom.

Barrick v. United States, 117 S. Ct. 1818 (1997).    A sentence

will be upheld on appeal unless it was imposed in violation of

law; imposed as a result of an incorrect application of the

                                   11
sentencing guidelines; or outside the range of the applicable

sentencing guideline and is unreasonable.     See United States v.

Wyjack, 141 F.3d 181, 183 (5th Cir. 1998) (citing United States

v. Garcia, 962 F.2d 479, 480-81 (5th Cir. 1992)).      “[C]ommentary

in the Guidelines Manual that interprets or explains a guideline

is authoritative unless it violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous reading

of, that guideline.”   Stinson v. United States, 508 U.S. 36, 38

(1993); see also U.S. SENTENCING GUIDELINES MANUAL § 1B1.7 (1997)

(“Failure to follow [the commentary that accompanies the

guideline sections] could constitute an incorrect application of

the guidelines, subjecting the sentence to possible reversal on

appeal.”) (citing 18 U.S.C. § 3742).

                          III.   DISCUSSION

     On appeal, Greer argues that while he was legally competent,

he suffered from antisocial, borderline, and impulsive

personality disorders, that the actions forming the basis for the

obstruction of justice enhancement were manifestations of these

diagnosed psychological problems, and that a sentencing court

therefore may not apply the enhancement to punish his conduct.

The Government contends that Greer’s personality disorders did

not compel his actions; rather, he intentionally feigned

incompetence and disrupted his trial, thus attempting to and

actually obstructing justice within the meaning of § 3C1.1.         This

issue--whether the sentencing court may apply § 3C1.1 to punish a

                                  12
defendant with a history of psychological problems and diagnosed

personality disorders who allegedly feigns mental illness and

acts disruptively in court--is res nova in this circuit and, as

far as we know, in every other circuit.3

A.   Does § 3C1.1 Apply to Feigning Incompetence?

     We first must determine whether a defendant’s feigning

incompetence is the type of conduct to which § 3C1.1 applies.     If

it is not, then we must reverse as a matter of law and remand for

resentencing.   If it is, we must consider whether the district

court properly applied § 3C1.1 in this case.

     We begin our analysis by examining the Guidelines

themselves.   Section 3C1.1 is titled “Obstructing or Impeding the

Administration of Justice” and reads: “If the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the investigation, prosecution,


     3
        Justice Douglas briefly alluded to this sort of issue in
the seminal case of Illinois v. Allen, 397 U.S. 337 (1970).
Allen held that a trial court may exclude from his own trial a
defendant who persists in disruptive conduct despite repeated
warnings from the judge. See id. at 345-46. Justice Douglas
expressed some concern about the mental state of the defendant:
          There is more than an intimation in the present record
     that the defendant was a mental case. . . . The fact that a
     defendant has been found to understand “the nature and
     object of the proceedings against him” and thus competent to
     stand trial does not answer the difficult questions as to
     what a trial judge should do with an otherwise mentally ill
     defendant who creates a courtroom disturbance. What a judge
     should do with a defendant whose courtroom antics may not be
     volitional is a perplexing problem which we should not reach
     except on a clear record.
Id. at 351-52 (footnote omitted).

                                13
or sentencing of the instant offense, increase the offense level

by 2 levels.”   U.S. SENTENCING GUIDELINES MANUAL § 3C1.1 (1995).4   The

Guidelines Manual does not define “obstruct,” but the application

notes to § 3C1.1 provide some guidance as to the type of conduct

to which the obstruction enhancement applies.       For example,

although “[o]bstructive conduct can vary widely in nature, degree

of planning, and seriousness,” id. application note 2, § 3C1.1 is

not intended to punish a defendant for the exercise of a

constitutional right, see id. application note 1.       The

application notes also list examples of the type of conduct to

which the obstruction enhancement applies:      (1) threatening,

intimidating, or otherwise unlawfully influencing a co-defendant,

witness, or juror, directly or indirectly, or attempting to do

     4
         Greer committed the crimes of conviction in July 1994,
was convicted in August 1996, and was sentenced in December 1996.
The district court must use the Guidelines Manual in effect on
the date that the defendant is sentenced. See U.S. GUIDELINES
MANUAL § 1B1.11(a) (1995). If, however, the court determines that
use of the Guidelines Manual in effect on the date that the
defendant is sentenced would violate the ex post facto clause of
the U.S. Constitution, the court should use the Guidelines Manual
in effect on the date that the offense of conviction was
committed. See id. § 1B1.11(b). The record in this case does
not reveal what edition of the Guidelines the district court used
when sentencing Greer, although it presumably applied the version
in effect in December 1996. Greer did not object, either at
trial or in his briefs to this court, that doing so violated the
ex post facto clause. Our references to the Sentencing
Guidelines Manual therefore will be to the edition in effect at
the time of Greer’s sentencing in December 1996. The Sentencing
Commission did not publish a full revised edition of the
Guidelines Manual in 1996; instead, it produced only a short
Interim Publication which, used in conjunction with the 1995
Guidelines Manual, constitutes the version of the Manual in
effect beginning October 1, 1996.

                                  14
so; (2) committing, suborning, or attempting to suborn perjury;

(3) producing or attempting to produce a false, altered, or

counterfeit document or record during an official investigation

or judicial proceeding; (4) destroying or concealing or directing

or procuring another person to destroy or conceal evidence that

is material to an official investigation or judicial proceeding,

or attempting to do so; (5) escaping or attempting to escape from

custody before trial or sentencing, or willfully failing to

appear, as ordered, for a judicial proceeding; (6) providing

materially false information to a judge or magistrate;

(7) providing materially false information to a probation officer

in respect to a presentence or other investigation for the court;

and (8) other conduct prohibited by 18 U.S.C. §§ 1501-1516.      See

id. application note 3.   The application notes also provide a

non-exhaustive list of the types of conduct to which the

guideline does not apply, but which may be punished with a

greater sentence within the otherwise applicable guideline range:

(1) 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

offense; (2) making false statements, not under oath, to law

enforcement officers, unless it is a materially false statement

that significantly obstructed or impeded the official

investigation or prosecution of the instant offense;

(3) providing incomplete or misleading information, not amounting

                                15
to a material falsehood, in respect to a presentence

investigation; and (4) avoiding or fleeing from arrest.     See id.

application note 4.

     Thus, the commentary to § 3C1.1 does not explicitly refer to

the act of feigning incompetence in order to avoid trial,

conviction, or sentencing.   Our analysis of the application notes

convinces us, however, that such malingering is more like the

types of conduct to which § 3C1.1 applies than those to which it

does not.   In general, the acts in the latter category, while

dishonest, carry little risk of significantly impeding the

investigation or prosecution of a case and require substantially

less planning than those in the category of behavior to which

§ 3C1.1 applies.   For example, providing a false name at arrest

and making false, unsworn statements to law enforcement officers

trigger § 3C1.1 only if they actually significantly obstruct or

impede the investigation or prosecution.   Similarly, providing

incomplete or misleading information in respect to a probation

officer runs afoul of § 3C1.1 only if the falsehoods are

material.   Furthermore, it may be that unsworn communications to

law enforcement officers, not to mention decisions to flee from

arrest, are likely to be made on the spur of the moment and

reflect panic, confusion, or mistake rather than a deliberate

attempt to obstruct justice.   In short, § 3C1.1 excludes conduct

that does not tend to reflect a considered effort to derail



                                16
investigations and prosecutions or significantly increase the

risk that this in fact will happen.

     The types of conduct listed in Application Note 3 are quite

different.    They involve egregiously wrongful behavior whose

execution requires a significant amount of planning and presents

an inherently high risk that justice will in fact be obstructed.

We believe that feigning incompetency in order to avoid trial and

punishment is more analogous to this class of conduct than to

that described in Application Note 4.      Putting on the pretense of

incompetency demands not only dramatic ability but planning and

resolve.   Unlike providing false identification at arrest and

avoiding arrest altogether, it is not the result of a spur of the

moment decision.    Nor can it stem from merely panic, confusion,

or mistake.    And, of course, a criminal defendant’s sanity is

always material:    If he succeeds at convincing the court of his

incompetency, he does not only increase his chances of acquittal,

as he would if he committed perjury or falsified a record; he

makes it impossible even to try him.      Thus, it appears, from an

analysis of the text of the Guidelines Manual alone, that § 3C1.1

applies to the act of feigning incompetency.

     Although there are no cases precisely on point, the courts

have found behavior similar in purpose or effect to feigning

incompetency to trigger § 3C1.1.      For example, a court may use

the obstruction enhancement to punish a defendant who lies on the

stand about his mental state.    See United States v. Abdelkoui, 19

                                 17
F.3d 1178, 1182-83 (7th Cir. 1994) (affirming the district

court’s application of § 3C1.1 where the defendant claimed that

he was incapacitated by attacks of hypoglycemia that prevented

him from forming the requisite intent and was later determined to

be lying).   Section 3C1.1 also applies to material lies about

physical condition and its effect on mental state.   See United

States v. Hall, 101 F.3d 1174, 1178-79 (7th Cir. 1996) (approving

a § 3C1.1 enhancement where the defendant falsely claimed that

his confession could not be voluntary because it was the product

of a methamphetamine-induced psychosis).   In the same vein,

providing false handwriting samples may also trigger the

enhancement.   See United States v. Yusufu, 63 F.3d 505, 514-15

(7th Cir. 1995) (affirming a § 3C1.1 enhancement for a defendant

who willfully disguised a handwriting exemplar to be provided to

the FBI for comparison to writings that were to be introduced at

trial); United States v. Valdez, 16 F.3d 1324, 1335-36 (2d Cir.

1994) (upholding an obstruction of justice adjustment based in

part on the defendant’s ultimately unsuccessful attempt to

disguise his handwriting when giving exemplars under subpoena for

comparison with his date book of drug records).   Failing to

report to give samples is also an obstruction of justice.    For

example, the Ninth Circuit has held that a defendant claiming

diminished capacity who refuses to submit to court-ordered

psychiatric testing so that the prosecution can respond to his

defense obstructs justice within the meaning of § 3C1.1.     See

                                18
United States v. Fontenot, 14 F.3d 1364, 1372 (9th Cir. 1994).

Defendants who refuse to provide court-ordered handwriting

samples have also been found to obstruct justice.     See United

States v. Taylor, 88 F.3d 938, 944 (11th Cir. 1996); United

States v. Ruth, 65 F.3d 599, 608 (7th Cir. 1995).     A defendant

who feigns incompetency essentially provides a false “sample,”

lying about his psychiatric condition in order to convince the

court that he cannot be found guilty--or, for that matter, even

put on trial.

     The fact that each of the above examples, unlike feigning

incompetency, fits under one of the categories of behavior that,

according to Application Note 3, triggers the obstruction

enhancement5 is a distinction without a difference.    The

application note makes clear that its list is non-exhaustive, and

as the Seventh Circuit has noted, the guideline is concerned more


     5
         Abdelkoui and Hall involve perjury. See U.S. SENTENCING
GUIDELINES MANUAL § 3C1.1 application note 3(a) (1995). Although
Yusufu and Valdez do not explain precisely why disguised
handwriting exemplars amount to an obstruction of justice within
the meaning of § 3C1.1, at least one case has suggested that this
is so because they are falsified samples, the knowing submission
of which violates 18 U.S.C. § 1512(b). See United States v.
Porat, 17 F.3d 660, 665-66 (3d Cir. 1994), judgment vacated on
other grounds, 515 U.S. 1154 (1995). Violations of 18 U.S.C. §§
1501-1516 trigger § 3C1.1. See U.S. SENTENCING GUIDELINES MANUAL
§ 3C1.1 application note 3(i) (1995). As for Fontenot and
Taylor, disobedience to a court order, however, is a violation of
18 U.S.C. § 1509 and therefore triggers § 3C1.1 under Application
Note 3(i). See id. Moreover, failure to appear for a court
proceeding is “inherently obstructive.” See United States v.
Labella-Szuba, 92 F.3d 136, 138-39 (2d Cir.), cert. denied, 117
S. Ct. 624 (1996).

                               19
with the effect of potentially obstructive conduct than with

formalistic definitions.    See United States v. Harrison, 42 F.3d

427, 431 (7th Cir. 1994) (“Unquestionably, the guideline is less

concerned with whether the false information was given under oath

than with the information’s effect on a judicial decision or

investigation.”).   Moreover, feigning incompetency may well fall

under a broad interpretation of Application Note 3(b), which

refers to producing or attempting to produce a false record: A

defendant who playacts psychosis essentially tries to create a

record that includes inaccurate testimony and factual

conclusions.   Such behavior may also implicate Application Note

3(i), which states that § 3C1.1 applies to conduct prohibited by

18 U.S.C. §§ 1501-1516.    For example, a defendant violates 18

U.S.C. § 1512 when he tells a potential witness a false story as

if the story were true, intending that the witness believe the

story and repeat it to a grand jury.    See United States v.

Rodolitz, 786 F.2d 77, 81-82 (2d Cir. 1986); see also United

States v. Gabriel, 125 F.3d 89, 102 (2d Cir. 1997); United States

v. Bordallo, 857 F.2d 519, 525 (9th Cir. 1988), opinion amended

on reh’g by 872 F.2d 334 (9th Cir. 1989).    Similarly, a defendant

who feigns incompetency misrepresents his psychiatric condition

to his examiners, intending that they will believe him and convey

their inaccurate impressions to the court.

     Greer makes two primary arguments why feigning incompetency

does not trigger the obstruction enhancement.    First, he

                                 20
contended at oral argument that § 3C1.1 applies only when the

underlying conduct constitutes a crime in and of itself.        Because

it is not a crime to move the court for a competency hearing or

to jump up and cry out in court, he claims, his behavior lies

outside the scope of the enhancement.      Our review of the record

reveals, however, that the district court found that Greer

obstructed justice not because he requested a competency hearing

and disrupted his trial, but because he feigned incompetency.

Thus, the relevant question is whether feigning incompetency, not

requesting a competency hearing or speaking out of turn in court,

falls within the ambit of § 3C1.1.     As we discussed above, there

is support in the case law for the proposition that feigning

incompetency in an effort to delay or avoid trial and punishment

violates 18 U.S.C. § 1512, and thus triggers § 3C1.1 according to

Application Note 3(i).

     Greer’s second argument, that applying § 3C1.1 enhancements

to defendants who feign incompetency impermissibly chills their

constitutional right not to be tried if they are incompetent, has

somewhat more merit.    It is well-established that § 3C1.1 cannot

be applied to punish a defendant for the exercise of a

constitutional right.    See U.S. SENTENCING GUIDELINES MANUAL § 3C1.1

application note 1 (1995).    It is equally well-established that

the Due Process Clause of the Fourteenth Amendment prohibits the

criminal prosecution of a defendant who is not competent to stand

trial.   See Drope v. Missouri, 420 U.S. 162, 171 (1975); Pate v.

                                  21
Robinson, 383 U.S. 375, 386 (1966).      Thus, § 3C1.1 cannot be used

to enhance the sentence of a defendant simply because he or his

attorney requests competency hearings.

     The Supreme Court confronted an analogous problem in United

States v. Dunnigan, 507 U.S. 87 (1993), in which the Court upheld

the application of the obstruction enhancement to a defendant who

committed perjury at trial, despite her argument that such use of

§ 3C1.1 would chill her constitutional right to testify on her

own behalf.   In rejecting this argument, the Court pointed out

that “[o]ur authorities do not impose a categorical ban on every

governmental action affecting the strategic decisions of an

accused, including decisions whether or not to exercise

constitutional rights.”     Id. at 96.   The Court further observed

that “a defendant’s right to testify does not include a right to

commit perjury.”   Id.    Moreover, the Court found, § 3C1.1

enhancements for perjury do not create an unconstitutionally high

risk that district courts will order enhancement as a matter of

course whenever the accused takes the stand and is found guilty,

because if the defendant challenges a sentence increase based on

perjured testimony, the trial court must make findings to support

all the elements of a perjury violation in the specific case.

See id. at 95.

     Similarly, applying the obstruction enhancement to

defendants who willfully feign incompetency in order to avoid

trial and punishment does not unconstitutionally chill a

                                  22
defendant’s right to seek a competency hearing.   While a criminal

defendant possesses a constitutional right to a competency

hearing if a bona fide doubt exists as to his competency, he

surely does not have the right to create a doubt as to his

competency or to increase the chances that he will be found

incompetent by feigning mental illness.   Of course, our finding

that § 3C1.1 may be applied to malingerers is not meant to

encourage or justify automatically increasing sentences for all

defendants who seek a competency hearing and ultimately are found

competent.   As in Dunnigan, if a defendant challenges a sentence

increase based on feigned incompetency, the district court must

make findings to support its ruling.   Nor does our decision today

put defense counsel to the Hobson’s choice of forgoing competency

hearings for a client who may well be incompetent (and thereby

creating grounds for an ineffective assistance of counsel claim)

or requesting such hearings and exposing the client to the risk

of a § 3C1.1 enhancement if he is ultimately found competent.

Counsel should warn his client that feigning incompetency,

whether to create doubt as to his competency so as to prod his

attorney into requesting competency hearings or to convince the

court that he cannot stand trial, will trigger a § 3C1.1

enhancement.   If the defendant is found competent, and the court

later determines that he feigned incompetency in order to delay

or avoid his day of reckoning, it will apply the enhancement.    If

the court finds, however, that the defendant did not feign

                                23
incompetency but that there was simply a bona fide doubt about

his mental health that did not rise to the level of incompetency,

then it may not increase the sentence.     In either case, the

defendant and his attorney need not choose between a competency

hearing and avoiding an obstruction enhancement.

B.   Does § 3C1.1 Apply to Defendants with a History of Mental

Illness or Who Are Presently Suffering From Personality

Disorders?

      Greer’s case presents questions of special difficulty,

however, because there was substantial doubt as to both his

competency and the role that his diagnosed personality disorders

played in his allegedly obstructive behavior.     This observation

leads to two arguments against permitting a § 3C1.1 enhancement

in this case.   The first contends that because Greer’s history of

mental illness and his bizarre behavior at trial were sufficient

to raise substantial doubts about his competency, any pretense of

insanity did not cause the court or the government to expend

additional resources or result in delay.     In other words, because

there were sufficient doubts about Greer’s competency even absent

his allegedly obstructive conduct, he cannot be punished for

creating additional doubt because there was no risk that his

behavior could obstruct justice.     We find Greer’s analysis

unpersuasive.




                                24
     First, even if there is sufficient evidence to justify a

competency hearing absent the defendant’s machinations, feigning

incompetency during a psychiatric evaluation would seem always to

increase the risk that the defendant will erroneously be found

incompetent.   More important, § 3C1.1 itself indicates that it

applies to attempts to obstruct justice as well as to the actual

obstruction of justice.6   Even if the defendant’s actions could

have had no impact whatsoever on the course of events leading to

his being found competent, his attempt to manipulate the judicial

system reflects on his character and is therefore a relevant

consideration at sentencing.   Cf. Dunnigan, 507 U.S. at 94

(observing that a defendant’s perjury is relevant to the

sentencing decision because “it reflects on a defendant’s

criminal history, on her willingness to accept the commands of

the law and the authority of the court, and on her character in

general”).   Indeed, our sister circuits have considered and

rejected the argument that a defendant should not be punished for

obstructing justice unless his actions imposed some incremental

burdens upon the government, either in investigation or proof,

which would not have been necessary but for the defendant’s

actions.   The Third Circuit applied this rule in perjury cases,

see United States v. Colletti, 984 F.2d 1339, 1348 (3d Cir.

     6
        A skeptic might argue that attempts that cannot possibly
succeed do not qualify as “attempts” under the substantive
criminal law. We point out, however, that factual impossibility
is not a defense to a charge of attempt.

                                25
1992), but the Tenth and Sixth Circuits rejected this approach,

finding that Dunnigan had discredited it, see United States v.

Ledezma, 26 F.3d 636, 645 n.1 (6th Cir. 1994); United States v.

Fitzherbert, 13 F.3d 340, 340-45 (10th Cir. 1993).    The Third

Circuit itself no longer recognizes the Colletti rule as good

law.    See United States v. Fiorelli, 133 F.3d 218, 223 (3d Cir.

1998) (“Thus, even if our statement in Colletti had not been

dicta, its vitality would not have survived Dunnigan.”); see also

United States v. Jaramillo, 4 F. Supp. 2d 341, 346-47 (D.N.J.

1998) (same).    Moreover, the rule that the defendant’s actions

produce a particular effect is inconsistent with the language of

§ 3C1.1, which explicitly applies to attempts to obstruct

justice, and to the general consensus among the courts of appeals

that even an unsuccessful attempt to obstruct justice triggers

the enhancement.

       The second argument against applying § 3C1.1 in this case

focuses on Greer’s diagnosed antisocial and borderline

personality disorders, which the Government’s expert testified

made him “impulsive,” “authoritarian,” “self-defeating,”

“concerned about [his] immediate needs, often at the expense of

long term goals,” and caused him to “behave in ways that violate

the expectations and morals of society, and [he] really [doesn’t]

care.”    Individuals with antisocial and borderline personality

disorders are, the expert testified, “probably the two most

difficult people to deal with in the universe.”    Greer argues

                                 26
that because his personality disorders affect his behavior, it is

far from clear that his conduct demonstrates, in Dunnigan’s

language, that he is “unwilling” to submit to the court’s

authority or that he possesses a culpable character.   He

therefore urges us to hold that in order to apply an obstruction

enhancement, the district court must find that the defendant’s

willful acts were not the result of any other mental disease or

defect suffered by the defendant at the time of those acts’

commission, notwithstanding any separate finding of competency on

the defendant’s part.   We decline to do so.

     We recognize that in order to enhance a defendant’s sentence

based on feigned incompetency, a district court must carefully

consider whether the defendant has engaged in such behavior in a

conscious and deliberate attempt to obstruct or impede the

administration of justice, and the presence of other psychiatric

problems often will make it difficult to determine whether the

defendant’s action was “willful” within the meaning of the

Guidelines.   This is the sort of factual determination with which

we entrust the district courts, however.   We believe that the

requirement that the district court find that the defendant

“willfully” obstructed or attempted to obstruct justice

adequately protects against the danger that the defendant will be

punished for nonvolitional conduct.

     We have held that “willful” means conscious, deliberate,

voluntary, and intentional.   In other words, the defendant’s

                                27
conduct must have been volitional.    See United States v.

O’Callaghan, 106 F.3d 1221, 1223 (5th Cir. 1997).    Although we

have not explicitly held that the defendant must have the

specific intent that his actions or statements obstruct justice,

we have indicated that we define “willful” in accordance with the

Second Circuit’s opinion in United States v. Reed, 49 F.3d 895,

901 (2d Cir. 1995).    See O’Callaghan, 106 F.3d at 1223 n.5.    Reed

holds that a § 3C1.1 enhancement “implies a mens rea

requirement,” “is appropriate only if the defendant had the

specific intent to obstruct justice, i.e., . . . the defendant

consciously acted with the purpose of obstructing justice,” and

requires the district court to “make a specific finding of

intent.”   Reed, 49 F.3d at 900-01 (citations and internal

quotations omitted).   Especially where a defendant has a history

of bizarre behavior and questionable competency, the district

court must closely scrutinize the record to ensure that the basis

for the obstruction enhancement is the sort of calculated attempt

to derail justice that evidences a desire to avoid the authority

of the court or to escape the commands of the law.    While we

cannot say that no psychiatric condition short of incompetency

could ever prevent the defendant from acting “willfully,” we note

that our system regularly permits the conviction and sentencing

of defendants who are “antisocial” or “borderline.”    It may even

be true that a majority of our prison population suffers from

some type of psychiatric condition.    See United States v. Henley,

                                 28
8 F. Supp. 2d 503, 505 (E.D.N.C. 1998); see also Madden v.

Collins, 18 F.3d 304, 307 (5th Cir. 1994) (holding that there was

insubstantial evidence that the appellant’s criminal actions were

attributable to his antisocial personality where there was no

testimony that he was incapable of controlling his impulses or

unable to distinguish right from wrong); United States v. Bright,

517 F.2d 584, 586 (2d Cir. 1975) (“All humankind is heir to

defects of personality.”).

     Thus, the mere fact that a defendant suffers from a

personality disorder does not make him immune to a § 3C1.1

enhancement.   We emphasize, however, that in the case of a

defendant whose competency is questionable, there may be

increased doubt as to whether the conduct that forms the basis

for the obstruction enhancement is a calculated attempt to

mislead the district court into finding the defendant incompetent

or merely the result of his psychiatric condition.   This is

especially so in the case of a defendant with a personality

disorder, which may cause him to act impulsively or make it

difficult (if not impossible) to control his behavior.     Cf.

Kansas v. Hendricks, 117 S. Ct. 2072, 2080 (1997) (upholding as

constitutional a Kansas commitment statute that required a

finding of future dangerousness linked to a “‘mental abnormality’

or ‘personality disorder’ that makes it difficult, if not

impossible, for the person to control his dangerous behavior”);

Demouchette v. Collins, 972 F.2d 651, 653-54 (5th Cir. 1992)

                                29
(noting that expert testimony in a death case claimed that an

antisocial personality acts on impulse rather than deliberation

and that a reasonable juror might find that this evidence had

mitigating value in reducing moral culpability).

     Finally, we must determine whether, because a defendant’s

diagnosed personality disorders complicate the task of

determining whether his obstructive acts were “willful,” the

Government must show willfulness by a higher standard of proof

than mere preponderance of the evidence.   In support of this

evidentiary standard, Greer points out that the Supreme Court has

observed that it is still an open question whether “some

heightened standard of proof might apply to sentencing

determinations which bear significantly on the severity of

sentence,” Almendarez-Torres v. United States, 118 S. Ct. 1219,

1233 (1998), and that in the analogous situation of insanity

issues, Congress requires courts to use the “clear and

convincing” standard when making particular determinations, see

18 U.S.C. § 4243(e).

     We can see no reason to deviate from the standard used in

all other aspects of the sentencing process.   Nor does the fact

that at the time of Greer’s crime, conviction, and sentencing,

the application note to § 3C1.1 directed the district courts,

“[i]n applying this provision in respect to alleged false

testimony or statements by the defendant, such testimony or

statements should be evaluated in a light most favorable to the

                               30
defendant,”7 help his case.   Although we never have interpreted

this particular version of the application notes, we have

interpreted a similar predecessor.   Before 1990, Application Note

2 to § 3C1.1 read: “In applying this provision, suspect testimony

and statements should be evaluated in a light most favorable to

defendant.”   In United States v. Franco-Torres, 869 F.2d 797, 801

(5th Cir. 1989), we held that this provision did not require the

sentencing court to believe the defendant’s testimony; rather, it

“simply instructs the sentencing judge to resolve in favor of the

defendant those conflicts about which the judge, after weighing

the evidence, has no firm conviction.”   But see United States v.

Arnold, 106 F.3d 37, 43-44 (3d Cir. 1997).   Our holding in

Franco-Torres applies with equal force to the version of the

application note in effect at the time relevant to Greer, for

both require the district court to view allegedly false

statements in the light most favorable to the defendant.    Our

standard does not help Greer, however, because the district court

in his case was firmly convinced that he was feigning mental

illness.

     7
        Effective November 1, 1997, the Sentencing Guidelines
were amended so as to delete “such testimony or statements should
be evaluated in a light most favorable to the defendant” and
inserting in lieu thereof “the court should be cognizant that
inaccurate testimony or statements sometimes may result from
confusion, mistake, or faulty memory and, thus, not all
inaccurate testimony or statements necessarily reflect a willful
attempt to obstruct justice.” See U.S. SENTENCING GUIDELINES MANUAL
app. C, amend. 564 (1997). We need only consider the version of
the Guidelines in effect at the time of Greer’s sentencing.

                                31
C.   Did the District Court Err in Applying § 3C1.1 to Greer?

      We therefore review the district court’s conclusion that

Greer obstructed justice for clear error, keeping in mind that

the Government need show, and the court need find, only by a

preponderance of the evidence that Greer feigned incompetency in

order to delay or avoid his trial.    The district court did not

clearly err.   The Government’s expert testified that although

Greer suffered from antisocial and borderline personality

disorders, he was capable of controlling his behavior.    A

quantity of other evidence supports the court’s finding of

willful malingering.    For instance, Greer made false statements

that he did not know his attorney; did not know what he was

charged with; could not recite the alphabet; and could not tell

what year it was.   When told that his urinating out the slot of

his cell door would fail to convince his doctors that he was

incompetent and that successful malingering required that he

urinate or defecate in his cell, he ceased urinating out the slot

and began defecating in a corner of his cell.    While he often

conversed with non-medical personnel, he refused to speak to his

doctors and tried to avoid being placed in housing where he could

be observed easily.    Although he claimed to benefit from anti-

psychotic drugs, his behavior did not change when he stopped

taking them.   Finally, Dr. Richard Frederick of the Federal

Medical Center at Springfield, Missouri administered a Forced



                                 32
Choice Test to Greer, whose pattern of responses suggested that

he was feigning psychosis.

     The law, of course, requires not only that the defendant

commit affirmative acts that tend to create an appearance of

incompetency, but that he do so with the specific intent of

obstructing justice.   In this case, we have only circumstantial

evidence of Greer’s intent.   We do not believe, however, that the

Government must produce proof as direct and incontrovertible as,

say, a tape recording of the defendant confessing his plan to

feign incompetency in order to delay or avoid trial and

punishment.   On the other hand, we recognize that a determination

by the district court, after a competency hearing, that a

defendant is competent to stand trial often will entail a

conclusion that the defendant’s alleged mental illness is at

least partially feigned, and we do not suggest that every

instance of feigned mental illness justifies an enhancement for

obstruction of justice.   The district court may find from

circumstantial evidence that the defendant engaged in a conscious

and deliberate attempt to obstruct or impede the administration

of justice.   In this case, there was evidence that Greer engaged

in a sustained pattern of appearing considerably more impaired

than he was, and when he was told that certain actions would not

convince the experts that he was in fact insane, he modified his

behavior.   The district court did not clearly err in finding that

Greer willfully feigned mental illness in a conscious and

                                33
deliberate effort to delay, and perhaps avoid altogether, his day

of reckoning on the grave offenses with which he was charged.

D.   Courtroom Behavior

     Greer also contends that the district court erred by using

the obstruction of justice enhancement to increase his sentence

rather than by simply citing him for contempt for his trial

misbehavior.    Our review of the record reveals, however, that the

district court in fact viewed Greer’s courtroom outbursts as a

continuation of his attempt to feign incompetency.    Moreover,

Greer’s willful attempt to feign incompetency prior to trial is

sufficient to sustain the enhancement.    We therefore need not

decide whether § 3C1.1 may be used to sanction disruptive

courtroom behavior that is not part of a sustained plan to feign

incompetency.

                           IV.   CONCLUSION

     For the foregoing reasons, we AFFIRM Greer’s sentence.




                                  34
