                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                JAN 5 1999
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                        No. 97-5237
                                                      (D.C. No. 97-CR-88-K)
 ALAN DALE NUCKOLLS, also                         (Northern District of Oklahoma)
 known as Big Al,

          Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before KELLY, HOLLOWAY and LUCERO, Circuit Judges.



      Appellant Alan Dale Nuckolls pled guilty to criminal contempt for failure

to testify at trial despite a grant of immunity. He now challenges his sentence,

arguing that the district court applied the wrong sentencing guideline and

erroneously enhanced his sentence by a two-level upward departure. We have

jurisdiction pursuant to18 U.S.C. § 3742 and 28 U.S.C. § 1291, and affirm.

                                            I

      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Indicted for his role in a drug distribution conspiracy, appellant Nuckolls

pled guilty to possessing a firearm during a drug trafficking offense, and was

sentenced to 60 months in prison. The government thereupon granted Nuckolls

immunity and subpoenaed him to testify at the trial of his co-conspirators.

Nuckolls refused to testify. Charged with contempt, he pled guilty. There was

also testimony that he physically threatened a prosecution witness. The district

court calculated his sentence of 108 months imprisonment by using U.S.S.G. §§

2J1.2 and 5K2.9. Section 2J1.2 applies to obstruction of justice. Section 5K2.9

allows for a discretionary two-level upward departure if the defendant commits an

offense in order to facilitate or conceal the commission of another offense.

                                         II

      Appellant Nuckolls argues the district court erred when it applied the

obstruction of justice guideline to calculate his sentence for contempt. We review

a district court’s application and interpretation of the Sentencing Guidelines de

novo. See United States v. Voss, 82 F.3d 1521, 1531 (10th Cir. 1996). The

court’s underlying factual findings, however, we subject to the clearly erroneous

standard of review. See id.




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       Sentencing Guideline § 2J1.1 applies to contempt offenses. However,

Section 2J1.1 provides no specific guidelines for this contempt. 1 Instead, it

directs the sentencing court to apply U.S.S.G. § 2X5.1. Section 2X5.1 provides,

in turn, that if an offense is one for which no guideline has been expressly

provided, a sentencing court should apply the guideline for the most analogous

offense.

       “In certain cases, the [contempt] offense conduct will be sufficiently

analogous to § 2J1.2 (Obstruction of Justice) for that guideline to apply.” See

U.S.S.G. § 2J1.1, comment. (n.1). When refusal to obey a court order to provide

evidence at trial is intended to stymie the prosecution of criminal offenses,

obstruction of justice is a sufficiently analogous offense to warrant application of

U.S.S.G. § 2J1.2. See Voss, 82 F.3d at 1531-32. The district court found that

Nuckolls’ refusal to testify was part of a code of silence meant to conceal a drug

distribution conspiracy. Discerning no clear error in the district court’s factual

findings, we affirm its application of U.S.S.G. § 2J1.2 to calculate appellant’s

sentence.




       1
        Section 2J1.1 provides no specific guideline for contempt because “misconduct
constituting contempt varies significantly,” and thus a determination of the appropriate
punishment for contemptuous conduct is “highly context-dependent.” See U.S.S.G. §
2J1.1, comment. (n.1).

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      We also affirm the district court’s application of U.S.S.G. § 5K2.9 which

provides for an upward departure when the defendant commits an offense in order

to facilitate another offense. In reviewing an upward departure, we look to see

whether it is reasonable and backed by permissible factors with sufficient factual

support in the record. United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.

1997). We review de novo the factors or circumstances the district court uses to

justify departure, and subject its underlying factual determination to a clearly

erroneous standard. United States v. Stumpf, 938 F.2d 172, 173 (10th Cir. 1991).

      The district court applied Section 5K2.9 upon finding that Nuckolls

threatened a prosecution witness to facilitate the commission of another

offense—a drug distribution conspiracy. The record shows that Nuckolls

threatened a prosecution witness, following the witness to his home and waiting

outside with other threatening persons. He did this, the trial court found, as part

of an effort to conceal an ongoing drug conspiracy. More important, Nuckolls

engaged in these activities after being arrested for possession of a firearm during

the commission of a drug trafficking offense. His actions represent the “extra

measure of criminal depravity . . . the departure mechanism is designed to

address.” United States v. Smith, 133 F.3d 737, 751 (10th Cir. 1997). The court’s

finding is supported by the record, and its two-level upward departure was

reasonable.


                                         -4-
      Nuckolls argues, however, that his threats against the witness were

addressed by the obstruction of justice guideline, U.S.S.G. § 2J1.2, that the

district court had already used to calculate his sentence for contempt. The court

thus erred, he claims, in using a separate guideline, § 5K2.9, for a two-level

upward departure. There is no merit to this argument. By threatening the

witness, Nuckolls did not merely obstruct justice; he intended to facilitate and

conceal a drug conspiracy scheme. His action was part of the substantive offense

of aiding and furthering a conspiracy and thus not addressed by the obstruction of

justice guideline. Therefore, we affirm the district court’s enhancement of

appellant’s sentence under U.S.S.G. § 5K2.9.

      AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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