225 F.3d 766 (D.C. Cir. 2000)
United States of America, Appelleev.Nigel Judson Maccado, Appellant
No. 99-3101
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2000Decided October 4, 2000

Appeal from the United States District Court for the District of Columbia(No. 98cr00162-01)
Sandra G. Roland, Assistant Federal Public Defender,  argued the cause for appellant.  With her on the brief was A.  J. Kramer, Federal Public Defender.
Luis Andrew Lopez, Assistant U.S. Attorney, argued the  cause for appellee.  With him on the brief were Wilma A.  Lewis, U.S. Attorney, John R. Fisher, Thomas J. Tourish,  Jr., and Alan Boyd, Assistant U.S. Attorneys.
Before:  Williams, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Concurring opinion filed by Circuit Judge Williams.
Rogers, Circuit Judge:


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

I.

2
Maccado was indicted in 1998 for possession of false identification documents with intent to defraud the United States  and for making false statements in a passport application. See 18 U.S.C. §§ 1028(a)(4), 1542.  He ultimately pleaded  guilty on August 17, 1998, to the false statements charge. According to the government's proffer at the time Maccado  pleaded guilty, the charges stemmed from his submission on  September 11, 1997, of a completed United States Passport  Application (Form DSP-11) in the name of David Arnar  Proctor, born December 17, 1957, in Washington, D.C.  Maccado listed his social security number as kbk-hw-nsjjand  presented as proof of citizenship a District of Columbia  certificate with a recorded date of birth, as well as an  employee identification card from his own construction company.  He signed the form in the presenceof the clerk at the Friendship Heights Post Office, who accepted the application  on behalf of the Department of State.  Several months later,  Special Agent Leonard Codispot of the United States Department of State Bureau of Diplomatic Security obtained an  arrest photograph of Maccado from the Montgomery County,  Maryland, police records that matched the photo attached to  the passport application.  Agent Codispot also determined  from the United States Immigration and Naturalization Service that Maccado was born in India in 1949, and was not a  United States citizen and not entitled to a United States  passport.


3
At a status hearing on Thursday, June 18, 1998, in contemplation of trial, the district court granted the government's  motion to compel Maccado to submit a handwriting exemplar  that day to Agent Codispot, who was present in the courtroom.  When asked by the court if he understood the court's  order, Maccado replied, "Yes, your Honor."  Nevertheless,  Maccado did not give the exemplar to the agent that day and  had no further personal contact with the agent until July 7,  1998, when Agent Codispot obtained the exemplar from Maccado in Maryland.  At that time Maccado was in the Charles  County Detention Center in LaPlata, Maryland.1


4
At Maccado's sentencing hearing, Agent Codispot testified  that after the June 18th status hearing, he accompanied  Maccado and his wife to the first floor of the court house. Agent Codispot told Maccado to wait while he obtained a copy  of the court order, and that the exemplar would be taken in a  vacant room in the courthouse.  When Agent Codispot returned minutes later, Maccado was gone;  his wife explained  that Maccado had left to move the car.  After waiting for over  an hour for Maccado to return, Agent Codispot returned to  his office and found a message from Maccado that his car had  overheated and he had left it at his wife's office, that he had gone to visit a cousin in the hospital, and that he would do the  "court-ordered things" at another time.  Agent Codispot  twice attempted unsuccessfully to reach Maccado at the pager  number that Maccado had left as part of his recorded message.


5
Maccado's wife recounted somewhat different events.  She  testified that after the status hearing Agent Codispot informed them the exemplar would be taken at an office in  Virginia, and that Maccado left the courthouse to retrieve the  car so they could follow the agent to Virginia.  Upon returning to her office later that day, Mrs. Maccado found a  message from her husband explaining that he had encountered car problems and another message from her cousin's  wife stating that Maccado had been to the hospital to get  water for the car.  Upon returning home around 4:30 p.m.,  Mrs. Maccado found her husband at home.  She telephoned a  mechanic and dropped the car off that night, leaving a  message for the mechanic about the problem.  She also  telephoned Agent Codispot, leaving a message about rescheduling the taking of the exemplars.

At sentencing, the district court found:

6
that there has been obstruction of justice;  that the obstruction of justice occurred when, notwithstanding a court order to go with the FBI agent [sic] to give a handwriting exemplar, and it's clear from the transcript that I told the defendant that he had to go with that agent that day to provide a handwriting exemplar, not-withstanding that, he didn't, and he hasn't offered any plausible explanation or reason why he didn't. I mean, I think that if I were to credit his testimony that he had to take his car to get it fixed, it's not amitigating circumstance to offset the failure to comply with the court directive to have that handwriting exemplar provided that day, and his failure to do so rises to the level of an obstruction of justice.


7
After applying the two-level enhancement under U.S.S.G.  § 3C1.1 and crediting Maccado for acceptance of responsibility, id. § 3E1.1, which resulted in a sentencing range of 12 to  18 months, the court sentenced Maccado to 18 months' incarceration and three years' supervised release.

II.

8
On appeal, Maccado contends that mere disobedience of a  court order is insufficient to constitute obstruction of justice  under U.S.S.G. § 3C1.1 where the ordered evidence is produced within a relatively brief time prior to any scheduled  court hearing and, thus, does not substantially influence the  investigation or prosecution.  Combined with his guilty plea  to one count, that he maintains effectively cured any prior  obstructive conduct, Maccado contends that the district  court's application of U.S.S.G. § 3C1.1 involved an erroneous  interpretation of law that is subject to de novo review.


9
As to our standard of review, we agree with Maccado. Maccado does not challenge the district court's findings that  his conduct was unjustified, or that he materially breached  the district court's order.  Nor does he claim that he had a  necessity defense or that his actions were not willful.  Consequently, the only issue presented on appeal is whether  § 3C1.1 requires that a defendant's conduct have a substantial effect on the investigation or prosecution of his case, and  if so, whether a guilty plea negates the obstruction of justice. These are questions of law that the court reviews de novo. See United States v. (Michael) Taylor, 997 F.2d 1551, 1560  (D.C. Cir. 1993).  Upon determining whether there is a  substantial effect requirement in § 3C1.1, the court must  accord due deference to the district court's factual determination that the defendant's conduct is within the range of  punishable actions.  See In re Sealed Case, 199 F.3d 488, 491  (D.C. Cir. 1999);  18 U.S.C. § 3742(e);  see also United States  v. Drew, 200 F.3d 871, 880 (D.C. Cir. 2000).


10
The relevant version of § 3C1.1 of the Sentencing Guidelines instructs that:


11
[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instance offense, increase the offense level by 2 levels.


12
U.S.S.G. § 3C1.1 (1995).2  In the Application Notes to the  Guidelines, which the court must treat as authoritative, see  Stinson v. United States, 508 U.S. 36, 38 (1993), the Sentencing Commission has included two non-exhaustive lists of  examples to illustrate some of the kinds of conduct that do  and do not fall within § 3C1.1.  See Application Notes 3 & 4.None of the examples is precisely on point.  By way of  caveat, Application Note 2 states that "[o]bstructive conduct  can vary widely in nature, degree of planning, and seriousness . . . [and] is not subject to precise definition."  Application Note 3 gives as examples of when the enhancement is  properly imposed "committing, suborning, or attempting to  suborn perjury; . . . escaping or attempting to escape from  custody before trial or sentencing;  or willfully failing to  appear, as ordered, for a judicial proceeding; . . . [or] providing materially false information to a judge or magistrate."U.S.S.G. § 3C1.1, Application Note 3(b), (e), (f).3  On the other hand, examples of acts that do not qualify for punishmentunder § 3C1.1 include "providing incomplete or misleading information, not amounting to a material falsehood, in  respect to a presentence investigation;  ... [and] avoiding or  fleeing from arrest."  Id., Application Note 4(c), (d).4


13
By providing non-exhaustive illustrations, the Sentencing  Commission has left considerable discretion in applying  § 3C1.1 to the sentencing court.  In view of the variety of  situations that might constitute obstruction of justice, the  Commission necessarily relied on the district court's reasoned  exercise of discretion in applying § 3C1.1 to particular fact  patterns.  The question, therefore, is how the threshold for  applying § 3C1.1 is to be defined.  Efforts by the circuit  courts of appeal to identify that threshold have not been  particularly successful in view of the breadth of the text of  § 3C1.1.


14
For example, the Fifth Circuit has derived two general  principles from the commentary's lists based on two factors  that it has presumably distilled from the commentary.  The  two factors are:  "(1) whether the conduct 'presents an inherently high risk that justice will be obstructed;'  and (2)  whether the conduct 'requires a significant amount of planning,' as opposed to being 'the result of a spur of the moment  decision' or 'stem[ming] from merely panic, confusion, or  mistake.' "  United States v. Phillips, 210 F.3d 345, 348 (5th  Cir. 2000) (quoting United States v. Greer, 158 F.3d 228, 235  (5th Cir. 1998)).  A classification relying on this distinction,  articulated in United States v. Draves, 103 F.3d 1328, 1337  (7th Cir. 1997), as the difference between "panicked, instinctive flight" and "calculated evasion," appears to place the  threshold higher than the Commission's language and listings  suggest, because the list of sanctionable conduct in Application Note 3 includes actions that do not seem to require much  planning.5


15
The circuits, however, have had little problem imposing  § 3C1.1 enhancements when a defendant refused to cooperate  with an order to provide a handwriting exemplar.  See United  States v. Brazel, 102 F.3d 1120 (11th Cir. 1997);  United States  v. (David) Taylor, 88 F.3d 938 (11th Cir. 1996);  United States  v. Ruth, 65 F.3d 599 (7th Cir. 1995);  United States v. Reyes,  908 F.2d 281 (8th Cir. 1990).  As the Second Circuit observed  in United States v. Valdez, 16 F.3d 1324 (2d Cir. 1994), "there  are few better examples of a classic obstruction of justice  than a defendant who refuses to give handwriting samples  when compelled by subpoena [to do so]."  Id. at 1335.  It is  true that these cases involved defendants who either refused  to provide exemplars and never supplied them, or repeatedly  refused and then belatedly provided the handwriting samples. Still, there is no suggestion that more than a single act  without additional obstreperous, deliberate, or disruptive conduct is required under § 3C1.1, much less that a meaningful  distinction exists between never submitting an exemplar and  submitting one late.  As the Seventh Circuit has observed,  the guideline is concerned with the effect of potentially obstructive conduct rather than formal definitions.  Cf. United  States v. Harrison, 42 F.3d 427, 431 (7th Cir. 1994).


16
Other circuit cases emphasize the obstructive nature of  avoiding full compliance with an order to provide an exemplar.  Both the Second and Seventh Circuits have affirmed  § 3C1.1 enhancements when a defendant disguised a handwriting exemplar that was to be compared with writings to be  introduced at trial.  See United States v. Yusufu, 63 F.3d 505,  514-15 (7th Cir. 1995);  Valdez, 16 F.3d at 1335-36.  As in the  instant case, the exemplars sought in Yusufu and Valdez  were for comparison with writing that was to be introduced at  trial.  See Yusufu, 63 F.3d at 514;  Valdez, 16 F.3d at 1335.Furthermore, in United States v. Ruth, 65 F.3d 599 (7th Cir.  1995), the Seventh Circuit affirmed a § 3C1.1 enhancement  based on a pretrial finding of contempt for two refusals to  provide a handwriting exemplar, even though the government  "eventually found another way to prove its case and did not  try a third time to take the handwriting exemplars."  Id. at  606.


17
In addition, a series of cases have applied § 3C1.1 to out-of court conduct that is analogous to the type of conduct at  issue.  The Second Circuit in United States v. Defeo, 36 F.2d  272, 276 (2d Cir. 1994), affirmed enhancement under § 3C1.1  for a "four-month failure to report to pretrial services."  The  Ninth Circuit in United States v. Draper, 996 F.2d 982 (9th  Cir. 1993), affirmed enhancement under § 3C1.1 for failure to  report to a community corrections center during pre-trial  release, rejecting both the view that a "significant disruption"  was required and the view that "a two week absence is not  sufficient to warrant the obstruction adjustment."  Id. at 98487.


18
The line of authority applying § 3C1.1 to handwriting  exemplars and out-of-court conduct is persuasive for three  reasons:  the Commission has (1) used broad language in § 3C1.1;  (2) included egregious as well as non-egregious  conduct in its list of acts that warrant a sentencing enhancement;  and (3) determined that for most of the listed conduct  sanctionable under § 3C1.1, actual hindrance is an irrelevant  consideration.  By contrast, our concurring colleague's interpretation does not adequately explain either the language of  § 3C1.1 or the two lists in the commentary.  The Commission  not only included attempts in § 3C1.1 but stated that "willfully failing to appear, as ordered, for a judicial proceeding" is  punishable under § 3C1.1 without actual hindrance, even  though such failures do not seem necessarily to have a high  risk of materially impeding the criminal justice process and  might encompass spontaneous conduct.  In (Michael) Taylor,  997 F.2d at 1559-60, the court, in rejecting a specific mens  rea requirement, upheld a § 3C1.1 enhancement for obstruction where the defendant failed to return to the courtroom  before the juryreturned its verdict, even though defense  counsel waived his presence and the proceedings continued. The viability of our concurring colleague's distinction cannot  rest on the fact (Michael) Taylor involved a "judicial proceeding" rather than an "ancillary process," see infra concurring  opinion at 4, for the obstruction that occurred in both cases  was adverse to the court's process.


19
Accordingly, we hold that a § 3C1.1 enhancement can be  based on a defendant's failure to comply with a court order to  provide a handwriting exemplar in connection with the underlying pending charges regardless of whether the failure has a  substantial effect on the investigation or prosecution.  A  defendant's failure to provide the ordered exemplar clearly  has the potential to weaken the government's case, prolong  the pendency of the charges, and encumber the court's docket  with an unnecessary trial.  The two circumstances on which  Maccado relies are unavailing.  Whether or not the scheduled  judicial proceedings are postponed is not dispositive, see  Defeo, 36 F.3d at 276-77;  those proceedings might occur as  scheduled, but without a defendant's exemplar or adequate  time to evaluate or reach a plea agreement, the course of the  proceeding could be very different.  The fact that a defendant  ultimately enters a guilty plea to some of the charges cannot be dispositive;  until the district court has accepted the plea,  see Fed. R. Crim. P. Rule 12, anything could happen.  See,  e.g., supra n.1.  Moreover, the conclusion that a plea could  erase an actual obstruction of justice would be inconsistent  with § 3C1.1's inclusion of attempts.  Each of these circumstances, in other words, fails to eliminate the concern about  the potential effect of the defendant's conduct that the guideline is addressing.6  While we do not adopt a per se rule for  handwriting exemplars, for the Commission's reference in  Application Note 2 to the "degree of planning" and "seriousness" of the obstructive conduct are relevant factors for the  district court to consider in deciding whether a § 3C1.1  enhancement is warranted, we reject a heightened threshold  requiring conduct that has a substantial effect on the investigation or prosecution.  It remains for the district court to  determine whether a defendant has offered a sufficient reason  for failing to comply with the court order as would make  application of the guideline inappropriate.  As stated in United States v. Baker, 641 F.2d 1311 (9th Cir. 1981), "criminal  contempt requires a contemn or to know of an order and  willfully disobey it. . . . A good faith effort to comply with  the order is a defense, although delaying tactics or indifference to the order are not."  Id. at 1317 (citations omitted).


20
Having concluded that the threshold for application of  § 3C1.1 does not bar enhancement for failing to comply with  a court order in the absence of a substantial effect, the  remaining question is whether the district court's findings  were in some manner lacking.  We find no clear error.  See  generally United States v. Saro, 24 F.3d 283, 286 (D.C. Cir. 1984).  Under § 3C1.1 the district court could reasonably  determine that Maccado's failure to comply with a clearly  understood order was inadequate.  Not only did Maccado's  explanation seem implausible, it failed to explain why he did  not provide his exemplar, or at least make arrangements to  provide it, before he went to the hospital and was thereafter  taken into custody, where his exemplar, albeit probably in a  disguised form, was finally obtained.7  Maccado could hardly  contend that the district court's interpretation of his conduct  as being consistent with obstruction is clearly erroneous, for  Maccado's version of events is undermined by Agent Codispot's testimony that Maccado's telephone message stated he  would take care of the "court-ordered things" at another time,  thus indicating a deliberate, planned decision not to comply  with the court order, a serious matter in and of itself. Consistent with the Sentencing Commission's acknowledgment of the need for case-by-case determinations, see Application Note 2, these are circumstances where the court owes  due deference to the district court's application of a guideline. See In re Sealed Case, 199 F.3d at 491.


21
Accordingly, we affirm the appealed judgment.



Notes:


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


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


3
  Application Note 3 lists the following examples:
(a) threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so;
(b) committing, suborning, or attempting to suborn perjury;
(c) producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding;
(d) destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding (e.g., shredding a document or destroying ledgers upon learning that an official investigation has commenced or is about to commence), or attempting to do so;  however, if such conduct occurred contemporaneously with arrest (e.g., attempting to swallow or throwaway a controlled substance), it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it resulted in a material hindrance to the official investigation or prosecution of the instant offense or the sentencing of the offender;
(e) escaping or attempting to escape from custody before trial or sentencing;  or willfully failing to appear, as ordered, for a judicial proceeding;
(f) providing materially false information to a judge or magistrate;
(g) providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense;
(h) providing materially false information to a probation officer in respect to a presentence or other investigation for the court;
(i) conduct prohibited by 18 U.S.C. §§ 1501-1516.


4
  Application Note 4 lists the following examples:
(a) providing a false name or identification document at arrest, except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense;
(b) making false statements, not under oath, to law enforcement officers, unless Application Note 3(g) above applies;
(c) providing incomplete or misleading information, not amounting to a material falsehood, in respect to a pre-sentence investigation;
(d) avoiding or fleeing from arrest (see, however, § 3C1.2(Reckless Endangerment During Flight)).


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


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


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


Williams, Circuit Judge, concurring:

22
At the initial status  hearing on Maccado's indictment, the district court ordered  him to provide a federal agent a handwriting sample.  Maccado disappeared.  The district court's discussion of Maccado's  explanation, recounted in the majority opinion ("Maj. Op.") at  4, strikes me as somewhat ambiguous, but I accept the  majority's reading:  namely that the court, rather than finding  the explanation insufficient, simply disbelieved it.  On that  view, Maccado's disappearance looks like a deliberate and  considered decision to pursue a course tending to delay the  enforcement of the criminal law, and perhaps to thwart it. On that assumption we must consider whether there was  error in the district court's decision under the Sentencing  Guidelines to add a two-point enhancement for obstruction of  justice under § 3C1.1.


23
In the course of affirming, the majority appears to establish a lower threshold for enhancement than § 3C1.1 permits. The Guidelines provide for the enhancement "[i]f 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."U.S.S.G. § 3C1.1.  To elucidate this language the Sentencing  Commission has included in its commentary two non-exhaustive lists, one of acts qualifying for the enhancement  and the other of non-qualifying acts.  We owe the commentary deference.  Stinson v. United States, 508 U.S. 36, 38  (1993);  see also U.S.S.G. § 1B1.7 (1995).  Defendant's conduct is not among the specific examples, so we must try to  discern the pattern and see where Maccado's conduct fits  best.


24
To help the reader navigate through the two lists, I offer in  advance the general principles that the Fifth Circuit has  drawn from them.  It found that the enhancement should  depend on the inherent tendency of the conduct actually to  obstruct justice and on the deliberateness of defendant's  behavior:  "(1) whether the conduct 'presents an inherently  high risk that justice will be obstructed;'  and (2) whether the  conduct 'requires a significant amount of planning,' as opposed to being 'the result of a spur of the moment decision' or  'stem[ming] from merely panic, confusion, or mistake.' "  United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000)  (internal citation omitted).  The acts listed by the commentary as qualifying for enhancement are, in the Fifth Circuit's  view, ones that are "egregiously wrongful," involving both  considerable advance planning and a high risk of derailing an  investigation or prosecution.  United States v. Greer, 158  F.3d 228, 235 (5th Cir. 1998).  In support it points to language in the commentary noting the range of "degree of  planning[ ] and seriousness" that obstruction of justice issues  may present.  Id. at 234.  In fact, I question whether every  item in the Commission's lists handily fits the Fifth Circuit's  explanation, but it is a useful starting point.


25
Application Note 3 gives a non-exhaustive list of acts calling  for enhancement:


26
(a) threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so;


27
(b) committing, suborning, or attempting to suborn perjury;


28
(c) producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding;


29
(d) destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding(e.g., shredding a document or destroying ledgers up on learning that an official investigation has commenced or is about to commence), or attempting to do so;  however, if such conduct occurred contemporaneously with arrest(e.g., attempting to swallow or throw away a controlled substance), it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it resulted in a material hindrance to the official investigation or prosecution of the instant offense or the sentencing of the offender;


30
(e) escaping or attempting to escape from custody before trial or sentencing;  or willfully failing to appear, as ordered, for a judicial proceeding;


31
(f) providing materially false information to a judge or magistrate;


32
(g) providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense;


33
(h) providing materially false information to a probation officer in respect to a pre-sentence or other investigation for the court;


34
(i) conduct prohibited by 18 U.S.C. §§ 1501-1516.


35
This adjustment also applies to any other obstructive conduct in respect to the official investigation, prosecution, or sentencing of the instant offense where there is a separate count of conviction for such conduct.


36
U.S.S.G. § 3C1.1, Application Note 3.  Many of these acts  easily score on both the factors identified by the Fifth Circuit. Example (g), however, seems to embrace a defendant's spontaneous deception of a law enforcement officer--but only if  the deception in fact generates a "significant" obstruction or  impediment.


37
Application Note 4 gives examples of conduct not qualifying  for an enhancement:


38
The following is a non-exhaustive list of examples of the types of conduct that, absent a separate count of conviction for such conduct, do not warrant application of this enhancement, but ordinarily can appropriately be sanctioned by the determination of the particular sentence within the otherwise applicable guideline range:


39
(a) providing a false name or identification document at arrest, except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense;


40
(b) making false statements, not under oath, to law enforcement officers, unless Application Note 3(g) above applies;


41
(c) providing incomplete or misleading information, not amounting to a material falsehood, in respect to a pre-sentence investigation;


42
(d) avoiding or fleeing from arrest (see, however ,s 3C1.2 (Reckless Endangerment During Flight).U.S.S.G. § 3C1.1, Application Note 4.  Given Note 3(g) and  the second part of Note 3(d), and the re-appearance of  concern for actual obstructive effect in 4(a) and 4(b), I might  amend the Fifth Circuit's classification to say that generally  the enhancement is due (1) when the conduct is the result of  planning and is highly likely to cause a serious derailment of  the process, or (2) when conduct, even if spontaneous, actually  does cause such a derailment.  Such a view puts the risk of  derailment largely on the perpetrator.  Other courts appear  to rely on the distinction between planned and high risk  conduct, on one hand, and instinctive and low risk conduct, on  the other.  See United States v. Draves, 103 F.3d 1328, 1337  (7th Cir. 1997) (holding obstruction enhancement improper  when defendant fled from the back of a patrol car during his  arrest;  "panicked, instinctive flight" must be distinguished  from "calculated evasion").


43
"[W]illfully failing to appear, as ordered, for a judicial  proceeding," see Application Note 3(e), appears not to fit  readily the Fifth Circuit's taxonomy.  Such failures do not  seem necessarily to have a high risk of materially impeding  the criminal justice process--except in the sense of to some  degree wasting judicial resources;  and, depending on the  breadth of "willfully," these acts might or might not encompass spontaneous conduct.  The language is, however, confined to a "judicial proceeding," rather than reaching any  neglect of any judicial order, and would not seem necessarily  to encompass a judicial order to turn up for some ancillary  process such as giving a handwriting sample out of court. Although courts have held that the failure to appear for a  non-judicial proceeding qualifies for a § 3C1.1 sentencing  enhancement, these courts also found the defendant acted in  a deliberate and calculated fashion.  See United States v.  Defeo, 36 F.3d 272, 276 (2d Cir. 1994) (upholding § 3C1.1 enhancement for four month failure to report to pretrial  services because it was comparable to escape from custody);United States v. Mondello, 927 F.2d 1463, 1466-67 (9th Cir.  1991) (contrasting defendant's two-week "cat-and-mouse  game of avoiding the authorities" after arrest with very  different "situation where ... a criminal is surprised in the  act of committing a crime and makes an evasive dodge to  avoid apprehension").


44
The majority's characterization of the Fifth Circuit's analysis seems to me incorrect.  The analysis does not set actual  hindrance as a threshold requirement for the enhancement,  compare Maj. Op. at 11, and it does not read out the attempt  language in § 3C1.1, compare Maj. Op. at 10.  It requires  actual hindrance only when the defendant's act is better  viewed as spontaneous than deliberate (in the sense of deliberated).  Also contrary to the majority, I do not see how the  Sentencing Commission's inclusion of attempts to obstruct  provides any basis for some sort of across-the-board lowering  of the bar.  Compare id.  For example, one who attempts to  escape from custody before trial deserves the enhancement,  even if he is foiled by an alert guard.  See Application Note  3(e).  But that is no basis for diluting the requirement of  actual impact expressed by the Commission in cases such as  3(g).


45
The majority goes some way to erase all the distinctions  that the Commission sought to draw.  It characterizes the  Commission as having "included egregious as well as non-egregious conduct in its list of acts that warrant a sentencing  enhancement," Maj. Op. at 10, and says that the Seventh  Circuit in Draves placed "the threshold higher than the  Commission's language and listings suggest," Maj. Op. at 8.Obviously the margin between "egregious" and "non-egregious" is vague, but the Commission was plainly trying to  set up a hierarchy.  In Application Note 2 it stresses that  "Application Note 4 sets forth examples of less serious forms  of conduct to which this enhancement is not intended to  apply, but that ordinarily can appropriately be sanctioned by  the determination of the particular sentence within the otherwise applicable guideline range."  U.S.S.G. § 3C1.1, Application Note 2 (emphasis added).  By refusing to apply § 3C1.1  to "panicked, instinctive flight", the court in Draves was  merely honoringthe Commission's scheme and leaving punishment of "less serious" obstructions to adjustment within  the otherwise prevailing sentencing range.


46
Accepting the district court's view of Maccado's conduct as  deliberate, there remains the question of the risk (or reality)  that his actions would seriously impede his prosecution.  In  several cases courts have found a deliberate, affirmative  refusal to provide a handwriting sample grounds for enhancement--in many of them the refusal was repeated.  See United States v. Brazel, 102 F.3d 1120, 1163 (11th Cir. 1997)  (upholding enhancement where the defendant affirmatively  refused to provide, and never supplied, sample);  United  States v. Taylor, 88 F.3d 938, 944 (11th Cir. 1996) (upholding  enhancement for defendant's "repeated refusals to supply  handwriting exemplars, and his effort to disguise his handwriting when he did supply them");  United States v. Ruth, 65  F.3d 599, 608 (7th Cir. 1995) (upholding enhancement where  the "court twice ordered handwriting exemplars, and [defendant] twice failed to comply");  United States v. Reyes, 908  F.2d 281, 290 (8th Cir. 1990) (upholding enhancement where  defendant refused to comply with handwriting sample order  and never supplied one).  Maccado's behavior seems to have  posed less risk and caused less actual impact on law enforcement.  Indeed, if we exclude days in the hospital or in  custody, only two days passed between the June 18, 1998  order and the actual taking of an example.  Maccado seems  reminiscent of the luckless Conrad Hensley in Tom Wolfe's A  Man in Full, though to be sure a good deal more feckless. But his hospitalization and custody may be viewed as windfalls, so that--given the deference we owe the district court's  application of law to facts, see United States v. Kim, 23 F.3d  513, 517 (D.C. Cir. 1994)--we cannot reverse the district  court for its implicit judgment that Maccado's actions presented a serious risk of derailing justice.


47
Accordingly, I join the court in affirming the judgment.

