April 22, 1993    UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1459

                  UNITED STATES OF AMERICA,

                          Appellee,

                             v. 

                        JOHN L. TRACY,

                    Defendant, Appellant.

                                         

No. 92-1461

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                        JOHN L. TRACY,

                    Defendant, Appellant.

                                         

No. 92-1554

                  UNITED STATES OF AMERICA,

                          Appellant,

                              v.

                        JOHN L. TRACY,

                     Defendant, Appellee.

                                         

                         ERRATA SHEET

   The  opinion  of this  Court issued  on  March 29,  1993, is
amended as follows:

   On  page 15,  line 1,  continued to  line 3, place  a period
after  "counsel".   Delete "and  to follow  the federal  rules of
civil  procedure.   See  Fed.  R.  Civ. P.  11  (motions  must be
                     

signed).".

March 29, 1993    UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1459

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                        JOHN L. TRACY,

                    Defendant, Appellant.

                                         

No. 92-1461

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                        JOHN L. TRACY,

                    Defendant, Appellant.

                                         

No. 92-1554

                  UNITED STATES OF AMERICA,

                          Appellant,

                              v.

                        JOHN L. TRACY,

                     Defendant, Appellee.

                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

           [Hon. Gene Carter, U.S. District Judge]
                                                 

                                         

                            Before

                      Cyr, Circuit Judge,
                                        

               Campbell, Senior Circuit Judge,
                                             

                  and Boudin, Circuit Judge.
                                           

                                         

J.  Michael McGuinness,  by  Appointment of  the Court,  with whom
                      
McGuinness  &amp; Parlagreco and  John L. Tracy  pro se were  on brief for
                                       
defendant.
F.  Mark Terison,  Assistant  United States  Attorney,  with  whom
                
Richard S.  Cohen, United States Attorney, was on brief for the United
             
States.

                                         

                        March 29, 1993
                                          

          CAMPBELL,        Senior        Circuit       Judge.
                                                            

Defendant/appellant, John  L.  Tracy, was  convicted  in  the

United States  District Court  for the  District of  Maine of

three  counts of  distribution and attempted  distribution of

lysergic acid diethylamide ("LSD")  in violation of 21 U.S.C.

  841(a)(1) and    846. Tracy also separately pled  guilty to

one count of failure  to appear as  ordered by the court,  18

U.S.C.   3146(a)(4).  Tracy was sentenced to 97 months on the

distribution  counts and a  24-month consecutive  sentence on

the  failure  to appear  count.   In a  scattershot approach,

Tracy  raises  a   plethora  of  arguments   challenging  his

conviction and the resulting sentence.  Pursuant to 18 U.S.C.

  3742(b),  the government appeals from  the district court's

refusal  to  enhance  Tracy's  sentence  for  obstruction  of

justice  under   U.S.S.G.      3C1.1.    We   affirm  Tracy's

conviction,  but vacate and remand  for the district court to

reconsider  whether   an  enhancement  of   his  sentence  is

warranted under   3C1.1.

                              I.

          Tracy  was initially  indicted in  the District  of

Maine, in an indictment that was unsealed on October 4, 1990,

for distribution  of LSD in  July 1989  and August 1990.   On

January  15,  1991,  the  district court  empaneled  a  jury.

However,  the trial was continued on  January 28, 1991, prior

to the  swearing of  the jury,  when Tracy's attorney  became

                             -3-

aware of  a conflict  involving a potential  defense witness.

One of the government's  witness statements included the name

of  a present  client of  Tracy's attorney.   Because  of the

potential conflict between the two clients, the court granted

defense counsel's motion to withdraw.  The court also granted

Tracy  a continuance of two  weeks to decide  whether to hire

new private  counsel or  to accept a  court-appointed lawyer.

The  court reminded Tracy  that his speedy  trial rights were

waived during  the period  of continuance.    On February  6,

1991, Tracy requested court-appointed counsel.

          A superseding indictment, which changed the date of

one  of  the  LSD sales,  was  filed  on  February 26,  1991.

Tracy's case was placed  on the trial calendar for  March 25.

However, on March  12, Tracy moved for  a continuance because

he had not yet met with  his new attorney.  The court granted

the  continuance and later rescheduled  the trial to begin on

May 20, 1991.

          A  second superseding indictment, which added a new

count charging Tracy with attempted sale of LSD on August 22,

1990, was returned in five counts on April 24, 1991.  Another

jury was empaneled on May  20, but it was not sworn.   On the

day  the trial  was  to  begin,  Tracy's attorney  asked  for

another  continuance because  Tracy  had broken  his leg  and

wanted a  new attorney.   After determining that  the lawyer-

client  relationship had disintegrated, the court granted the

                             -4-

attorney's  motion   to  withdraw   and  the  motion   for  a

continuance.   The court  again explained to  Tracy that  his

motion for a continuance stopped the speedy trial clock.

          Tracy's  trial was rescheduled for August 14, 1991.

Tracy, however, failed to report by telephone to his pretrial

services officer on August 12, and failed to appear for trial

on August 14.   When Tracy was arrested  in Florida on August

28, he was carrying false identification and  pretended to be

someone else.   Authorities returned Tracy to the District of

Maine,  and  the district  court rescheduled  his trial.   On

September  17, the  grand  jury issued  an additional  single

count indictment  against Tracy charging him  with failure to

appear for trial.

           Trial began in the LSD  case on October 15, 1991.1

At  the outset, the court instructed the jury to consider the

five alleged offenses separately.   The government's case was

based  primarily on  the testimony  of undercover  agents and

informants,  as well  as several tape  recorded conversations

with Tracy.   The testimony and  recordings revealed that  on

August 18,  1990,  a  cooperating  individual  named  Russell

Wright  purchased 20 doses of LSD from Tracy at his cabin for

$80.   On  August 20,  Wright returned  to Tracy's  cabin and

purchased  50 doses  of  LSD from  Tracy for  $150.   The LSD

                    

1.  A judge  different from those who  had previously handled
Tracy's case took over on the day that the trial began.

                             -5-

purchased  on both  August 18  and 20  was on  yellow blotter

paper with black airplanes.

          On August 22, Wright  attempted a third purchase of

LSD from Tracy  at his  cabin.  Several  agents from  Maine's

Bureau   of   Intergovernmental  Drug   Enforcement  ("BIDE")

testified that the purpose  of this attempt was to  flush out

the  source of Tracy's LSD by requesting a high enough number

of doses  that Tracy  would not  have them  on hand.   Wright

therefore requested  200 doses.   When Tracy replied  that he

had  only 100, a BIDE agent instructed Wright not to complete

the purchase.  Wright,  however, testified that he did  get a

look at  the LSD and noticed  that it was on  the same yellow

blotter paper with black airplanes.

          Another   cooperating  informant,   Curtis  Elwell,

testified  about Tracy's  alleged offenses  in 1989.   Elwell

testified  that Tracy supplied him  with LSD, which Elwell in

turn  sold to a  confidential informant  on two  occasions in

July  1989.  Elwell admitted  that he was  arrested for these

sales and that his  sentence was reduced from 60 months to 42

months  for his cooperation  with the government.   The court

did not allow  Tracy to impeach Elwell  with a fourteen-year-

old drug conviction.

          The  government  closed  its  case   with  evidence

concerning Tracy's  flight to Florida.   This was  offered to

show consciousness  of guilt.   Over Tracy's  objection, Eric

                             -6-

Thompson,  a  United  States  Deputy  Marshal  from  Florida,

testified to Tracy's  attempt to conceal his identity  at the

time  of his  arrest  in  Florida.    At  the  conclusion  of

Thompson's testimony,  the government rested.   Tracy did not

then move for acquittal.

          Tracy took  the  stand  in  his own  defense.    He

testified  to  his drug  use,  to the  availability  of drugs

during  his  youth,  and  to the  availability  of  LSD among

Grateful Dead followers.  Contrary to a tape recording of his

conversation with Wright in which Tracy purportedly said that

he had  to  "make  something"  for  his  LSD  dealing,  Tracy

testified that he "was willing to just get [his] money back."

Tracy further testified that he and his family were afraid of

Wright because he seemed aggressive.   According to Tracy and

his step-daughter, who also  testified, the family decided to

sell Wright  artificial LSD  if he  returned, in an  apparent

belief  that  Wright  would  then leave  them  alone.   Tracy

testified  that on August 22, 1990, the LSD that he attempted

to sell to  Wright was  fake and was  on blue blotter  paper.

Tracy made no motion for acquittal after resting his case.

          After the  close of  the evidence, the  court again

instructed  the  jury   to  consider  each  alleged   offense

separately.  Thereafter,  the jury found Tracy  guilty of the

three  August 1990 LSD offenses, but acquitted him on the two

July 1989 charges.

                             -7-

          Following   the   above  convictions,   but  before

sentencing, Tracy,  on November  7, 1991, entered  a plea  of

guilty to the separate charge of failure to appear.

                             II.

     A.  Pretrial and Trial Issues
                                  

     1.  Joinder of Counts
                          

          Tracy contends  that the district court  abused its

discretion when it refused to  order separate trials for  the

1989  and  1990 LSD  distribution charges.    Rule 14  of the

Federal Rules of Criminal Procedure, which governs motions to

sever, provides  in  relevant part  the  following:   "If  it

appears that a defendant . .  . is prejudiced by a joinder of

offenses .  . . the court  may order an  election or separate

trials  of counts,  . .  . or  provide whatever  other relief

justice requires."  A district court's denial of a motion for

relief from  prejudicial joinder brought pursuant  to Fed. R.

Crim. P. 14 is reviewed only for  abuse of discretion.  E.g.,
                                                            

United States  v. Chambers,  964 F.2d  1250,  1251 (1st  Cir.
                          

1992).    Such  a denial  will  not  be  reversed unless  the

challenger  makes "a  strong showing  of prejudice."   United
                                                             

States  v.  Gray, 958  F.2d 9,  14  (1st Cir.  1992) (quoting
                

United States  v. Font-Ramirez,  944  F.2d 42,  45 (1st  Cir.
                              

1991), cert. denied, 112 S. Ct. 954 (1992)).
                   

          Tracy contends that he  was prejudiced in two ways.

First,  Tracy  maintains that  he  was put  in  the untenable

                             -8-

position of wishing  to testify  on the  1989 offenses  while

wanting  to remain silent on  the 1990 offenses.   See United
                                                             

States v.  Bronco, 597  F.2d 1300,  1302-03 (9th  Cir. 1979).
                 

However, as  the magistrate  noted in recommending  denial of

the motion  to sever below, Tracy's  allegations of prejudice

were conclusory; they did not show with any particularity the

nature  of  the claimed  prejudice.   To  make  the requisite

strong showing of prejudice, a defendant must "present enough

information      regarding  the nature  of  the testimony  he

wishes to give on  one count and his reasons  for not wishing

to testify  on the  other     to satisfy  the court  that the

claim of prejudice is genuine  and to enable it intelligently

to  weigh the  considerations of  'economy and  expedition in

judicial administration' against the defendant's  interest in

having a free choice  with respect to testifying."   Baker v.
                                                          

United States, 401  F.2d 958, 977  (D.C. Cir. 1968);  Bronco,
                                                            

597 F.2d  at  1303 ("[a]n  accused should  show the  specific

testimony he will present about one offense, and his specific

reasons  for   not  testifying   about  others,  to   justify

severance.").    Because  Tracy's claims  of  prejudice  were

conclusory, the district court had  no factual basis on which

to determine whether Tracy's  claim of prejudice was genuine.

                             -9-

Tracy's claims of prejudice on appeal remain no more concrete

than formerly.2  

          Second, Tracy suggests that he was prejudiced  when

evidence of both the 1989 and 1990 distributions was heard by

the jury.  As a result, Tracy claims, the government was able

to  "bootstrap" the credibility of Curtis  Elwell.  The jury,

however, acquitted Tracy of  the counts dependent on Elwell's

testimony.   Thus, Tracy's defense to  the 1989 distributions

was not prejudiced by any bolstering of Elwell's credibility.

          The district court carefully instructed the jury at

both the beginning and end of  the case that it must consider

each charge  separately and make a  separate determination on

each  count  without  regard  to  the  others.    See,  e.g.,
                                                            

Chambers,  964 F.2d  at  1251;  Gray, 958  F.2d  at  15.   By
                                    

repeatedly  instructing  the  jury  to consider  each  charge

separately,   the  district  court  "minimized  any  possible

prejudice" from the joinder  of offenses.   United  States v.
                                                          

Natanel, 938 F.2d 302, 308 (1st Cir. 1991), cert. denied, 112
                                                        

S.  Ct. 986 (1992).  The jury,  apparently taking heed of the

district court's  clear instructions, acquitted Tracy  of the

charged 1989 LSD distributions and  convicted him on the 1990

                    

2.  At oral  argument  before  this  court,  Tracy's  counsel
suggested for the first time that Tracy was prejudiced by the
admission of  prior convictions  to impeach his  credibility.
As this argument  was not  presented below  nor mentioned  in
Tracy's  brief, it was waived.   See, e.g.,  United States v.
                                                          
Zannino,  895 F.2d 1, 17  (1st Cir.), cert.  denied, 494 U.S.
                                                   
1082 (1990).

                             -10-

distributions.  See Natanel,  938 F.2d at 308;  United States
                                                             

v. Tashjian, 660 F.2d  829, 834 (1st Cir.), cert.  denied sub
                                                             

nom.  Campbell v. United States,  454 U.S. 1102  (1981).  The
                               

jury's selectivity in  its verdicts affords  "reasonably good

assurance"  that spillover  prejudice  did  not  result  from

joinder of offenses.  See Natanel, 938 F.2d at 308.
                                 

          The district court did  not abuse its discretion in

denying Tracy's motion to sever. 

     2.  Prosecutorial Misconduct
                                 

          Tracy next contends that the district court  should

have  dismissed  the indictment  in  January  1991, when  the

government revealed its intent to call a witness who was also

a  client  of  Tracy's  then-attorney,  thereby  forcing  his

attorney to  withdraw.  Because  the government did  not call

the witness  when the case  eventually went  to trial,  Tracy

asserts prosecutorial misconduct.

          As the  government points out,  the record  refutes

the factual  basis for Tracy's contention.   Tracy's original

attorney withdrew because she learned that another client was

a  potential witness for the defense, not for the government.

The week  before Tracy's  originally scheduled  January trial

date, the government had disclosed the recorded statements of

its   witnesses,  including  the   grand  jury  testimony  of

Detective  Ron Gastia.   Detective  Gastia had  mentioned the

name of a  confidential informant  who was also  a client  of

                             -11-

Tracy's attorney.   Believing  the informant was  a potential

witness for  Tracy, but that such a role would be against the

informant's interest,  Tracy's attorney discerned  a conflict

and  withdrew.   Nothing  in  the record  indicates  that the

government  was  aware  of the  relationship  between Tracy's

attorney  and   the  confidential  informant,  or   that  the

government  acted in  any way  but responsibly  in disclosing

Detective  Gastia's  grand  jury  testimony.    The  district

court's  denial of Tracy's motion to dismiss was not an abuse

of discretion.

     3.  Evidentiary Rulings
                            

     a.  Evidence of Fear
                         

          Tracy  argues  that  the district  court  erred  in

admitting evidence of Wright's fear of Tracy.  Tracy contends

that  this  testimony was  irrelevant and  unduly prejudicial

under Rule 403  of the  Federal Rules of  Evidence.   Because

Tracy did not object  to this testimony at trial,  our review

is  for  plain  error only.    See,  e.g.,  United States  v.
                                                         

Arboleda,  929 F.2d  858, 870  (1st Cir.  1991).   Under this
        

standard, we  will  reverse a  conviction  only if  an  error

affects  the  "fundamental fairness  of  the  trial."   E.g.,
                                                            

United  States v. Vest, 842  F.2d 1319, 1326  n.4 (1st Cir.),
                      

cert. denied, 488 U.S. 965 (1988).
            

          Tracy cannot meet this  high standard.  Wright said

only  a few  words about  his concerns  for his  safety while

                             -12-

cooperating with the  government.  Such  evidence of fear  in

the context of drug deals is not unusual as the drug trade is

not  a safe  business.   In fact,  both Tracy  and his  step-

daughter testified of their own fear of Wright.  Admission of

Wright's concerns  for his  safety plainly did  not undermine

the "fundamental fairness of the trial."

     b.  Drug Culture
                     

          Tracy  contends  that the  district court  erred in

refusing to allow him to testify about the effects LSD had on

him.   According to Tracy, the testimony would be relevant to

show that  he was a user, and  not a dealer of  LSD.  We will

reverse  a trial  court's Rule  403  relevance determinations

only  for an  abuse of  discretion.   E.g., United  States v.
                                                          

Rodriguez  Cortes,  949 F.2d  532,  540-41  (1st Cir.  1991);
                 

United States v. Green, 887 F.2d 25, 27 (1st Cir. 1989).
                      

          The  district court's Rule  403 ruling  was clearly

not an  abuse of discretion.  We fail to see how testimony of

the physical  and psychological effects  of LSD on  Tracy was

relevant to whether  Tracy was  or was not  a dealer of  LSD.

Even  accepting the dubious  argument that being  a user cuts

against being a dealer,  ample evidence of use went  in.  The

court let Tracy testify that today's LSD just made him giggly

and did not  produce hallucinations.   He spoke  of his  drug

use, the availability and widespread use of drugs  during his

youth, the availability  of LSD among  followers of the  rock

                             -13-

group Grateful Dead, and the nonprofit sharing of drugs among

the  "rainbow community" to  which Tracy apparently belonged.

The jury could have had few illusions.

     c.  Evidence of Flight
                           

          Tracy  contends that  the district  court  erred in

admitting, to  show consciousness  of guilt, evidence  of his

flight  to Florida and of his attempt to conceal his identity

when  he  was  arrested  there.    According to  Tracy,  this

evidence  was irrelevant and  grossly prejudicial, and should

have been excluded  under Rules  401 and 403  of the  Federal

Rules of Evidence.   Contrary to Tracy's assertions, evidence

of a  defendant's flight and  attempts to conceal  or falsify

identity  may be presented at trial as probative of a "guilty

mind" if "there is an  adequate factual predicate creating an

inference of guilt of  the crime charged."  United  States v.
                                                          

Camilo Montoya, 917  F.2d 680, 683  (1st Cir. 1990)  (quoting
              

United  States v.  Hernandez-Bermudez, 857  F.2d 50,  52 (1st
                                     

Cir. 1988));  United States v.  Grandmont, 680 F.2d  867, 869
                                         

(1st  Cir. 1982).   In  the present  case, before  the deputy

marshal  from Florida  testified, the  government established

that  Tracy had been scheduled  for trial in  August 1991 and

had failed to appear.  Other independent evidence established

his drug dealings.  There  was a sufficient factual predicate

to  justify  the  admission  of the  flight  and  concealment

                             -14-

evidence  and no abuse of  discretion for the  court to admit

it.

     4.  Pro Se Motions
                       

          Tracy contends  that the  district  court erred  in

refusing  to  consider  several  pro se  motions  which  were
                                       

unsigned  and which were filed in March and April, 1992, when

Tracy was represented  by counsel.   A district court  enjoys

wide  latitude  in  managing   its  docket  and  can  require

represented parties to present  motions through counsel.  The

district court did  not abuse its  discretion in refusing  to

consider Tracy's unsigned, pro se motions.3
                                 

     5.  Waiver
               

          Tracy raises a host of other conclusory contentions

for which  Tracy has  provided virtually  no argument  and no

citation  to  authorities.     Included   among  these   bare

allegations are Tracy's "arguments"  that the January and May

1991 jury empanelments subjected him to double jeopardy; that

his  speedy trial  rights  were violated;  that the  district

court erred in refusing to allow him to impeach Curtis Elwell

with  a fourteen-year-old  conviction; that  his due  process

rights were  violated because Elwell received  a reduction in

sentence for cooperating with  the government; and that there

                    

3.  Tracy also suggests that his convictions must be reversed
because  of the  cumulative  prejudicial  effect of  district
court  errors.  Because we  find that the  district court did
not err, we reject this argument.

                             -15-

was  insufficient  evidence  to  support  the  jury's  guilty

verdicts.  

          It is  well settled  that issues are  deemed waived

when "adverted  to in a perfunctory  manner, unaccompanied by

some effort  at developed argumentation."   See United States
                                                             

v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.
                                                   

1082  (1990); United States v.  Bell, 936 F.2d  337, 343 (7th
                                    

Cir.  1991.  Notice  pleadings do  not suffice  for appellate

briefs.  See Fed.  R. App. P. 28(a)(5) (appellant's  argument
            

shall "contain the contentions  of the appellant with respect

to  the  issues presented,  and  the  reasons therefor,  with

citations  to  the authorities,  statutes  and  parts of  the

record relied on.").  Because Tracy has completely failed  to

develop  the  arguments  mentioned  above,  they  are  deemed

waived.    Nevertheless,  we  have examined  all  of  Tracy's

abandoned arguments and are independently satisfied that they

are without merit.

     B.  Sentencing
                   

     1.  Amount of LSD
                      

          Tracy disputes the computation of the amount of LSD

involved  in  the attempted  sale on  August  22, 1990.   The

district court assigned a  weight to the LSD offered  but not

sold on August 22 by extrapolating from the weight of the LSD

Tracy actually  sold  to  Russell  Wright on  the  two  prior

occasions.   The first sale  on August 18  involved 20 doses,

                             -16-

which  weighed a total of  .11 grams (.0055  grams per dose).

The second sale on August 20 involved 50 doses, which weighed

a total of  .32 grams (.0064 grams per unit).   Based on this

information, the court determined an average weight of .00595

grams per dose.  The court  then calculated a weight of  .595

grams for the 100 doses involved in the third attempted sale.

This  calculation  produced  a  total weight  for  all  three

offenses of  1.025 grams  (.110 +  .320 +  .595), and a  base

offense level  of 26.  Combined with Tracy's criminal history

category III, the calculation yielded a guideline range of 78

to 97 months.

          Tracy contends  that the district court  erred as a

matter of law by failing to apply the Typical Weight Per Unit

Table  found at  application  note 11  of  the commentary  to

U.S.S.G.    2D1.1.4  That  table indicates  that the  typical

weight per  unit for  LSD is  .05 milligrams (.00005  grams).

Applying this table, the total weight for  all three offenses

would have  been  .435 grams  (.110  + .320  +  .005).   This

                    

4.  Tracy also contends that the district court's calculation
violates the due process clause of the Fifth Amendment, which
provides  a  defendant  with  the right  to  be  sentenced in
accordance with  accurate evidence.   See Townsend  v. Burke,
                                                            
334 U.S. 736, 741  (1948).  As discussed  below, we find  the
district court's extrapolation from the previous two sales to
provide  a  more  accurate  estimate  of the  amount  of  LSD
involved  in the third attempted  sale than would  the use of
the Typical  Weight  Per Unit  Table.   We  therefore  reject
Tracy's due process argument.

                             -17-

computation would produce an offense level of 20, rather than

26, and a guideline range of 41 to 51 months.5

          Application note  11 of U.S.S.G.    2D1.1 instructs

courts  to use  its Typical  Weight Per  Unit Table  when the

number  of doses, pills or capsules are known, but the weight

of the controlled substance is not known.  The table displays

the  typical weight  per dose,  pill or  capsule  for certain

controlled substances, including  LSD.  Application note  11,

however, specifically cautions courts not to use the table if

a more reliable estimate of the weight is available:

                    

5.  As an alternative, Tracy suggests that the district court
should at  least  have  used the  lightest  known  sample  to
extrapolate  the weight  of the  LSD in  the third  attempted
sale.   See United  States v. Martz,  964 F.2d  787, 790 (8th
                                   
Cir.), (approving  district  court's use  of  lightest  known
sample), cert. denied, 113  S. Ct. 823 (1992); United  States
                                                             
v. Bishop, 894 F.2d 981, 987 (8th Cir.), cert. denied, 111 S.
                                                     
Ct.  106  (1990) (same).    Applying that  method,  the total
weight  for all  three  offenses would  have been  .980 grams
(.110 + .320 + .550).   The base offense level would  then be
24, and the guideline range would be 63 to 78 months.
     We  have said in the past that "'when choosing between a
number of plausible estimates  of drug quantity . . . a court
must err on  the side of caution.'"  United  States v. Sklar,
                                                            
920 F.2d 107, 113  (1st Cir. 1990) (quoting United  States v.
                                                          
Walton,  908 F.2d 1289, 1301 (6th Cir.), cert. denied, 111 S.
                                                     
Ct.  532 (1990)).  Here,  Tracy sold more  than twice as many
doses of LSD at the higher  weight (.0064 grams) than at  the
lower weight (.0055 grams).  Thus, the district court did err
on the  side  of  caution because,  had  the  district  court
accounted  for the greater number of doses sold at the higher
weight, the average weight per dose would  have equaled .0061
grams  ([.11 +  .32] divided by  70).  Given  these facts, we
think the district court's averaging  method was conservative
and   that  it   could  permissibly   conclude  in   all  the
circumstances of this case  that this method produced  a more
reliable  estimate of the amount of LSD involved in the third
attempted  sale than  would  extrapolating from  the lightest
known sample.

                             -18-

          The  Typical  Weight   Per  Unit   Table,
          prepared from information provided by the
          Drug Enforcement Administration, displays
          the  typical  weight per  dose,  pill, or
          capsule for  certain substances.   Do not
                                                   
          use  this  table  if  any  more  reliable
                                                   
          estimate of the total weight is available
                                                   
          from case-specific information.
                                        

(emphasis added).  Application note 11 further warns that the

table  provides a  very conservative  estimate of  weight for

certain  substances,  including   LSD,  because  the  weights

displayed  in  the table  do not  include  the weight  of the

mixture or substance containing the drugs:

           * For controlled substances  marked with
          an asterisk, the weight per unit shown is
          the  weight  of  the   actual  controlled
          substance, and not  generally the  weight
          of  the  mixture or  substance containing
          the controlled substance.  Therefore, use
          of   this   table    provides   a    very
          conservative   estimate   of  the   total
          weight.

LSD is marked with an asterisk.

          A district  court's finding of the  amount of drugs

involved in an offense will be overturned on appeal only upon

a showing of clear  error.  E.g., United States  v. McCarthy,
                                                            

961 F.2d 972, 978  (1st Cir. 1992); United States  v. Zuleta-
                                                             

Alvarez, 922 F.2d 33,  37 (1st Cir. 1990), cert.  denied, 111
                                                        

S. Ct. 2039  (1991).  In the present case, the district court

did not err in refusing to apply  the Typical Weight Per Unit

Table.  The district  court's finding of the quantity  of LSD

involved  in the third attempted sale was based on the weight

of  the actual  doses (on  the same  yellow paper  with black

                             -19-

airplanes), that Tracy  had sold just  days before the  third

attempted  sale.  Where  this "case-specific information" was

available, the court was warranted under note 11 in using the

former in preference  to the Typical  Weight Per Unit  Table.

See U.S.S.G.    2D1.1, application note 11;  United States v.
                                                          

Bishop,  894 F.2d 981, 987  (8th Cir.), cert.  denied, 111 S.
                                                     

Ct. 106  (1990).   The table produces  conservative estimates

that,  among other things, do  not account for  the weight of

the "mixture or substance" containing the LSD.  As the weight

of LSD blotter paper  is considered a "mixture  or substance"

that  should be included in calculating the amount of LSD for

sentencing, Chapman v.  United States, 111 S.  Ct. 1919, 1925
                                     

(1991),  the  district  court properly  employed  the  higher

average weight extrapolated from the  two prior sales of LSD-

infused   yellow   blotter  paper,   rather  than   the  more

conservative estimate  derived  from the  Typical Weight  Per

Unit Table.   See United  States v. Shabazz,  933 F.2d  1029,
                                           

1034  (D.C. Cir.)  (Thomas,  J.) ("note  11  was designed  to

address  problems   of  uncertainty,  not  to  undermine  the

preference  that sentences  be  determined  according to  the

weight  of the  mixture  or substance  if possible."),  cert.
                                                             

denied  sub  nom. McNeil  v. United  States,  112 S.  Ct. 431
                                           

(1991).

     2.  Acceptance of Responsibility
                                     

                             -20-

          Tracy argues that the district  court clearly erred

in refusing to adjust  his base offense level on  the failure

to appear count for  acceptance of responsibility pursuant to

U.S.S.G.    3E1.1.  According to Tracy,  he has been open and

remorseful with the court since the inception of that charge.

He notes that he confessed his failure  to appear when he was

first brought back  from Florida, and that he eventually pled

guilty to  that charge.  He  quotes a letter that  he sent to

the district  court, which  stated "I  have  clearly made  it

known that  I accept  responsibility for [failing  to appear]

and truly  regret making that decision.   At that time  I was

worried  about the child that I thought my wife was carrying,

and  was a  very confused and  scared man.   But  I regret my

actions and have apologized to this court for them."

          A  defendant  is entitled  to a  two-level downward

adjustment for acceptance of responsibility if  the defendant

"clearly   demonstrates   a   recognition   and   affirmative

acceptance  of  personal   responsibility  for  his  criminal

conduct."   U.S.S.G.   3E1.1(a).   Although a  guilty plea is

"significant  evidence" of  acceptance of  responsibility, it

does  not, by  itself,  compel a  downward adjustment,  since

"this evidence may be outweighed by conduct of the  defendant

that is inconsistent with such acceptance of responsibility."

U.S.S.G.   3E1.1, application note 3, United States v. Pavao,
                                                            

948  F.2d 74,  79  (1st Cir.  1991).   A  sentencing  judge's

                             -21-

determination concerning acceptance of responsibility will be

overturned only if clearly erroneous.  E.g., United States v.
                                                          

Royer, 895 F.2d 28, 29 (1st Cir. 1990).  
     

          The district court's  determination that Tracy  did

not genuinely accept responsibility for his failure to appear

is  amply  supported  by  the  record.    Tracy   used  false

identification  in an  attempt to  conceal his  identity even

after Florida authorities confronted  him.  See United States
                                                             

v. Yeo, 936 F.2d 628, 629  (1st Cir. 1991) (use of false name
      

supported  denial of  downward  adjustment for  acceptance of

responsibility).  Further, after observing  Tracy's demeanor,

the district  court concluded  that he was  opportunistic and

would  say anything  to minimize his  sentence.   Under these

circumstances, we cannot say  that the district court clearly

erred in  refusing to adjust  Tracy's base offense  level for

acceptance of responsibility.

     3.  Obstruction of Justice
                               

          Pursuant to  18 U.S.C.     3742(b), the  government

appeals from the district  court's refusal to enhance Tracy's

sentence for  obstruction of justice under  U.S.S.G.   3C1.1.

The government  argues that Tracy knowingly  perjured himself

when testifying  about the  August 22, 1990  attempted sale,6

                    

6.  The alleged perjury consisted  of Tracy's testimony  that
the  third attempted  sale  involved artificial  LSD on  blue
blotter  paper.   This  testimony  was  directly contrary  to
Wright's  testimony that  he saw  the 100  doses of  LSD that
Tracy attempted to sell on August 22, and these doses were on

                             -22-

and  that,  therefore,  an  enhancement  for  obstruction  of

justice was mandatory.

          U.S.S.G.   3C1.1 provides the following:

          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.

Application note 3(b)  specifically identifies the commission

of perjury as the  kind of conduct to which  this enhancement

applies.  U.S.S.G   3C1.1, application note 3(b).

          The Supreme Court has recently provided guidance on

the application  of U.S.S.G.    3C1.1 to  perjured testimony.

See  United  States  v.  Dunnigan,  61  U.S.L.W.  4180  (U.S.
                                 

February  23, 1993).   In  Dunnigan, the Supreme  Court ruled
                                   

that  once  a  district  court  finds that  a  defendant  has

committed  perjury, the  court must  enhance  the defendant's

base offense level by two  points for obstruction of justice.

Id. at 4184; see United States v. Austin, 948  F.2d 783, 788-
                                        

89 (1st Cir. 1991).  In determining what constitutes perjury,

the  Court  told sentencing  courts  to  apply the  generally

accepted  definition  of  perjury  in  the  federal  criminal

perjury  statute, 18 U.S.C.   1621.7  61 U.S.L.W. at 4182-83.

                    

the same yellow blotter paper with black airplanes that Tracy
had sold on the two prior occasions.

7.  18 U.S.C.   1621 provides in relevant part the following:

          Whoever    

                             -23-

Under  that definition,  a witness  testifying under  oath or

affirmation  commits  perjury  if  he  or  she  "gives  false
                                                             

testimony  concerning  a  material  matter  with  the willful
                                                             

intent to provide false testimony, rather than as a result of
      

confusion,mistake orfaultymemory." Id.at 4183(emphasisadded).
                                      

          The Court  in Dunnigan  stressed that, in  order to
                                

impose  a   3C1.1 enhancement,  a sentencing court "must make

independent   findings  necessary  to   establish  a  willful

impediment  to or obstruction of justice, or an attempt to do

the  same,  under  the  perjury  definition,"      i.e.,  the

sentencing  court  "must make  findings  to  support all  the

elements of a perjury  violation in the specific case."   Id.
                                                             

The Court  further preferred that sentencing  courts "address

each element of the  alleged perjury in a separate  and clear

finding."   Id.    Such express  findings,  according to  the
               

Court, help to ensure that sentences will not be enhanced "as

                    

               (1) having taken  an oath  before a  competent
          tribunal, officer, or person,  in any case in which
          a law of the United States authorizes an oath to be
          administered,  that  he   will  testify,   declare,
          depose,  or  certify  truly,  or  that  any written
          testimony, declaration,  deposition, or certificate
          by  him subscribed, is true, willfully and contrary
          to  such  oath states  or  subscribes  any material
          matter which he does not believe to be true . . .

          is guilty of perjury . . . .

18 U.S.C.   1621(1).

                             -24-

a matter of course  whenever the accused takes the  stand and

is found guilty."  Id.8
                      

          In   refusing   to   apply  the   enhancement   for

obstruction  of justice  in  the present  case, the  district

court said,

          [It]  is  a  very  close  call.    It  is
          apparent  to  the  Court  that  the  jury
          rejected   the    credibility   of   this
          defendant and of  his testimony at trial.
          This Court was  present at that time  and
          heard that testimony.   This Court,  too,
          disbelieved    the   accuracy    of   his
          testimony.

               Nevertheless, there  are many policy
          considerations that surround the question
          of enhancing a  base offense level  which
          increases  potential  punishment  on  the
          basis  of  the  Court's  conclusion  that
          perjury  has been  committed.    And  the
          Court  simply is  not comfortable  in its

                    

8.  The Supreme Court in Dunnigan also emphatically rejected,
                                 
as has  virtually every circuit  court, the argument  that an
enhanced sentence for perjury undermines  a defendant's right
to testify.  61  U.S.L.W. at 4183; United States  v. Batista-
                                                             
Polanco,  927 F.2d 14, 22  (1st Cir. 1991);  United States v.
                                                          
Matos, 907 F.2d  274, 276  (2d Cir. 1990);  United States  v.
                                                         
Wallace,  904  F.2d  603,  604-05  (11th  Cir.  1990).   "[A]
       
defendant's right  to testify  does not  include  a right  to
commit perjury."  Dunnigan,  61 U.S.L.W. at 4183.   We reject
                          
Tracy's argument to the contrary.
     We also  find no merit  in the  related contention  that
Tracy's denial of  guilt under  oath at trial  cannot be  the
basis of  an  enhancement  under U.S.S.G.     3C1.1.    While
application note 1 to   3C1.1 does provide that a defendant's
denial of guilt  is not a basis for  an enhancement, the note
expressly excludes  from this prohibition "a  denial of guilt
under  oath that  constitutes  perjury."   U.S.S.G.    3C1.1,
application note  1.  As  we have  stated in the  past, "'the
authorized  procedure for asserting  innocence in  a criminal
proceeding  is the tender of an  unsworn 'not guilty' plea.'"
United  States v.  Brum, 948  F.2d 817,  820 (1st  Cir. 1991)
                       
(quoting Batista-Polanco, 927 F.2d at 22).
                        

                             -25-

          own mind in  concluding that the  conduct
          amounts   to    perjury   of   sufficient
          significance    to   justify    such   an
          enhancement.

          The government contends that as the district court,

in  the  above-quoted  passage,  found that  Tracy  committed

perjury, the two-level enhancement for obstruction of justice

was  mandated.  Quoting the very same passage, Tracy contends

that  the  district court  did  not  find perjury,  and  more

particularly that the district court did not make a  specific

finding that Tracy had willfully lied.  

          We agree with Tracy  that it is not clear  from the

district court's discussion of obstruction of justice whether

the  court  found  that  all  the  elements of  perjury  were

satisfied.  While the district court expressly stated that it

"disbelieved the  accuracy of  [Tracy's]  testimony," we  are

unable to  determine whether  the court also  found that  the

testimony  concerned   a  material  matter,  or   that  Tracy

intentionally  provided the  false  testimony.9   It is  also

                    

9.  The  government  suggests  that  we can  imply  from  the
district court's discussion in  connection with its ruling on
the issue of acceptance  of responsibility, that the district
court believed that Tracy had knowingly not told the truth in
his  trial testimony.  We decline the invitation.  To "imply"
a finding of willful intent to commit perjury on the basis of
a district  court's general  comments not made  in connection
with the  court's perjury  discussion would stretch  too far,
especially  in a case where the court itself declined to find
obstruction.  We  note also the Supreme  Court's direction in
Dunnigan that district courts "must make independent findings
        
to  establish  a  willful  impediment to  or  obstruction  of
justice,  or an  attempt to  do the  same, under  the perjury
definition."  61 U.S.L.W. at 4183.

                             -26-

possible  to  interpret the  district  court's  statements as

finding perjury,  but  requiring something  more  than  basic

perjury to justify an enhancement for obstruction of justice.

          We   think  the   proper   resolution,   in   these

circumstances, is  to vacate the  sentence and remand  to the

district court "to make findings to support all  the elements

of  a  perjury  violation,"  or  to  articulate  clearly  the

elements it believes have not been satisfied.   See Dunnigan,
                                                            

61  U.S.L.W. at  4183.   In  making  this determination,  the

district court, inter alia,  should be guided by  the Supreme
                          

Court's opinion  in Dunnigan,  the definition of  perjury set
                            

forth in  the federal criminal  perjury statute, 18  U.S.C.  

1621, and  case law interpreting that  definition, see, e.g.,
                                                            

United States v. Moreno Morales, 815 F.2d 725, 747 (1st Cir.)
                               

("A statement  is material if  it is 'capable  of influencing

the tribunal on the issue before it.'" (quoting United States
                                                             

v.  Scivola,  766  F.2d  37, 44  (1st  Cir.  1985) (citations
           

omitted))),  cert. denied,  484 U.S.  966 (1987).   If, after
                         

reviewing the testimony, the  district court is of  the "firm

conviction" that  Tracy committed perjury, then  the district

court must impose a  two-level enhancement for obstruction of

justice.  See, e.g.,  United States v. Torres, 960  F.2d 226,
                                             

228 (1st Cir. 1992); United States v. Brum, 948 F.2d 817, 819
                                          

(1st Cir. 1991); United States v. Rojo-Alvarez, 944 F.2d 959,
                                              

969 (1st  Cir. 1991);  United States v.  Batista-Polanco, 927
                                                        

                             -27-

F.2d  14, 22 (1st Cir.  1991); United States  v. Akitoye, 923
                                                        

F.2d 221, 228 (1st Cir. 1991).

          Tracy's conviction  is affirmed.   His sentence  is
                                         

vacated and remanded for resentencing in accordance with this
                    

opinion.

          So ordered. 
                    

                             -28-
