PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 96-4162

MICHAEL CRANDALE WILLIAMS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Malcolm J. Howard, District Judge.
(CR-95-9-H)

Argued: March 5, 1998

Decided: July 30, 1998

Before MICHAEL and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, reversed in part and remanded by published opinion.
Senior Judge Phillips wrote the opinion, in which Judge Michael and
Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Fred Warren Bennett, Associate Professor of Law,
CATHOLIC UNIVERSITY LAW SCHOOL, Washington, D.C., for
Appellant. Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie
Cole, United States Attorney, J. Benjamin Davis, Third Year Law
Student, YALE LAW SCHOOL, Miguel Hull, Third Year Law Stu-
dent, UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW,
Raleigh, North Carolina, for Appellee.

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

This is an appeal by Michael Williams in which he challenges his
convictions and the resulting sentences imposed for conspiring to pos-
sess with intent to distribute crack cocaine in violation of 28 U.S.C.
§ 846, knowingly possessing a firearm during and in relation to a drug
trafficking offense in violation of 18 U.S.C. § 924(c), and being a
convicted felon in possession of several firearms in violation of 18
U.S.C. § 922(g)(1). We affirm in part and reverse and remand in part.

I.

On April 19, 1995, local law enforcement officers arrested Michael
Williams, Pedro Gonzalez, and Juan Gonzalez, Jr. for selling cocaine
out of a mobile home in Murfreesboro, North Carolina. The officers
apprehended the three men upon their return to the mobile home in
an Oldsmobile Ninety-Eight. Upon searching the vehicle, the officers
discovered a .45 caliber pistol, a 9mm Smith and Wesson handgun,
2.9 grams of cocaine base (crack), .7 grams of cocaine powder, and
about $800 in cash. Williams was immediately arrested, handcuffed,
and placed in the back seat of a police vehicle. The officers then pro-
ceeded to search Williams's parked Chevy Blazer finding additional
firearms, considerable ammunition, and approximately $7000 in cash.
During this search, Williams escaped from the police vehicle and was
not apprehended until the following morning.

Testimony at trial revealed that all three defendants had come to
North Carolina from their hometown of Allentown, Pennsylvania. At
Williams's request, both Gonzalezes had accompanied Williams on a
trip from there through Ohio and Virginia on their way to North Caro-
lina. In Ohio, Williams showed the Gonzalezes "two cookies" of
crack cocaine claiming that they weighed 10 ounces. After arriving

                    2
in North Carolina, the three men stayed at a mobile home belonging
to a friend of Williams.

Pedro Gonzalez, who agreed to cooperate with the government
after pleading guilty on two counts, testified that during their stay
Williams directed him to distribute crack cocaine and supplied $1000
worth of "$20 hits" of crack cocaine. Pedro Gonzalez also testified
that he had sold cocaine with Williams in North Carolina on a prior
visit and that Williams distributed cocaine in Pennsylvania as well.
Other witnesses also testified that Williams had engaged in distribu-
tion of both crack and cocaine powder.

Several witnesses also testified that Williams possessed various
firearms and carried or used them frequently on and just prior to the
date of his arrest. Pedro Gonzalez explained that Williams almost
always carried the .45 caliber pistol in a holster strapped to his side
when orchestrating or completing drug deals. Another witness, John
Hendrick, testified that Williams was carrying a firearm when he sold
Hendrick a substantial amount of crack.

At the conclusion of the trial, the jury returned a verdict of guilty
on all three counts against Williams. The presentence report, prepared
by the probation office following the verdict, attributed 712.5 grams
of crack cocaine and 113.4 grams of cocaine powder to Williams. The
quantities were derived mainly from out-of-court statements of Pedro
Gonzalez. The PSR also recommended that Williams be assessed a
two-level enhancement for obstruction of justice. At the sentencing
hearing, the district court rejected objections by Williams to both the
drug quantity amount and the obstruction of justice enhancement rec-
ommended by the PSR. The court then sentenced Williams to impris-
onment for a term of 384 months.

This appeal followed. On it, Williams raises various claims of error
affecting his convictions and the sentences imposed.

II.

Williams first argues that the district court erroneously instructed
the jury regarding the reasonable doubt standard. The following
instruction was given to the jury:

                     3
          The law does not require a defendant to prove his innocence
          or produce any evidence at all. The government has the bur-
          den of proving a defendant guilty beyond a reasonable
          doubt, and if it fails to do so, you must find the defendant
          not guilty.

          And thus while the government's burden of proof is a strict
          or heavy burden, it is not necessary that the defendant's
          guilt be proven beyond all possible doubt. It is only required
          that the government's proof exclude any reasonable doubt
          concerning the defendant's guilt.

          Now, reasonable doubt is a real doubt based upon reason
          and common sense and careful and impartial consideration
          of all the evidence in the case.

(J.A. at 210.)

Before the jury was charged, Williams requested a more detailed
instruction defining reasonable doubt. The district court refused. Wil-
liams now complains that the reasonable doubt instruction as given
entirely failed to provide any meaning to the concept because it did
not define the term. Alternatively, he argues that, to the extent a defi-
nition was offered, it was incomplete and improperly reduced the
government's burden of proof.

It is per se reversible error to give a constitutionally deficient rea-
sonable doubt instruction. Sullivan v. Louisiana , 508 U.S. 275 (1993).
The proper inquiry in reviewing a reasonable doubt instruction is
whether there is a reasonable likelihood that the jury applied the rea-
sonable doubt standard in an unconstitutional manner. Victor v.
Nebraska, 511 U.S. 1, 5 (1994). The trial court is not required to
define reasonable doubt as a matter of course so long as the jury is
instructed that a defendant's guilt must be proven beyond a reason-
able doubt; the Constitution does not obligate a court to further define
the standard. Id.

In accordance with Victor and because of our belief that efforts to
define reasonable doubt are likely to confuse rather than clarify the

                     4
concept, we have repeatedly held that a district court need not, and
in fact should not, define the term "reasonable doubt" even upon
request. United States v. Reives, 15 F.3d 42, 45 (4th Cir. 1994) ("[W]e
have consistently and vigorously condemned the attempts of trial
courts to define reasonable doubt."); United States v. Adkins, 937 F.2d
947, 950 (4th Cir. 1991) (expressing a "categorical disdain" for
attempts at defining reasonable doubt). Therefore, Williams's claim
that the district court erroneously refused to define reasonable doubt
is contrary to the law of this circuit.

Williams's argument that the district court's instruction improperly
lessened the government's burden of proof is similarly unpersuasive.
In Adkins, we expressly held that an instruction containing the first
two paragraphs quoted above from the district court's charge survived
constitutional scrutiny. 937 F.2d at 949-50. In particular, we observed
that the instruction "left `reasonable doubt' to its `self-evident mean-
ing comprehensible to the lay juror.'" Id. at 949 (citations omitted).

The district court's instruction that "reasonable doubt is a real
doubt based upon reason and common sense and careful and impartial
consideration of all the evidence in the case" does not convert the
Adkins-approved portion of the instruction into an unconstitutional
definition. This additional sentence merely admonished the jury to
exercise reason and unbiased diligence in reaching a decision. This
general guidance neither impeded the jury's application of the "self-
evident meaning" of reasonable doubt nor "undermine[d] or destroy-
[ed] their common sense appreciation of that term's meaning."
Murphy v. Holland, 776 F.2d 470, 476 (4th Cir. 1985), vacated on
other grounds, 475 U.S. 1138 (1986). It therefore did not reduce the
government's burden of proof. See Truesdale v. Moore, 142 F.3d 749
(4th Cir. 1998) (holding that an instruction equating "reasonable
doubt" with "real doubt" did not improperly reduce the government's
burden of proof).

III.

Williams next argues, for the first time, that the indictment was
facially defective because, in count two, it charged him with "possess-
ing," rather than "using" or "carrying," a firearm in connection with
a drug trafficking crime under § 924(c). Although an objection based

                    5
on the sufficiency of an indictment can be lodged at any time, if it is
first raised on appeal, the "indictment . . .[is] construed more liberally
. . . and every intendment is then indulged in support of . . . suffi-
ciency." United States v. Sutton, 961 F.2d 476, 479 (4th Cir. 1992);
United States v. Vogt, 910 F.2d 1184, 1200 (4th Cir. 1990). Moreover,
"where the post-verdict challenge to the indictment relates to the
absence of an element, the indictment will be held sufficient if it con-
tains words of similar import." Id. at 1201 (quotation and citation
omitted).

To pass constitutional muster, an indictment must (1) indicate the
elements of the offense and fairly inform the defendant of the exact
charges and (2) enable the defendant to plead double jeopardy in sub-
sequent prosecutions for the same offense. Sutton, 961 F.2d at 479.
"One of the principal purposes of an indictment is to apprise the
accused of the charge or charges against him so he can prepare his
defense." United States v. Fogel, 901 F.2d 23, 25 (4th Cir. 1990).

The mere failure to track the precise language of a statute does not
without more, constitute error. See Sutton, 961 F.2d at 479 (finding
that failure to allege "scienter" in indictment is not fatal where defen-
dant was not prejudiced in any manner); Vogt, 910 F.2d at 1201
(upholding sufficiency of indictment despite lack of specific mention
of the "defraud" element in the underlying charge). Notably, the Ninth
Circuit has recently rejected a claim identical to the one raised by
Williams. In United States v. Ruelas, 106 F.3d 1416 (9th Cir.), cert.
denied, 117 S. Ct. 2470 (1997), the defendant alleged that the indict-
ment was insufficient because, in the body of the§ 924(c) count, it
stated that he "possessed," rather than "used or carried," a firearm.
Acknowledging that Bailey v. United States, 516 U.S. 137 (1995),
distinguished the term "possess" from the terms "use or carry," the
Ninth Circuit nonetheless upheld the indictment because its specific
reference to § 924(c) adequately informed the defendant of the ele-
ments of the charged offense. Ruelas, 106 F.3d at 1419. Moreover,
the court commented that "if [the defendant] believed he did not have
adequate notice of the elements of the 924(c)(1) offense, he should
have resolved any ambiguity by bringing an appropriate motion
before pleading guilty." Id.

Assessed under the more forgiving standard for post-verdict
review, Williams's claim of error fails. In challenging the indictment,

                     6
Williams does not contend that its imprecision made him unable to
prepare an adequate defense, or to be aware of the charge against him,
or otherwise specifically impaired his ability to defend himself.
Instead, he simply points out the discrepancy and complains that it is
a fatal jurisdictional defect. Because he has demonstrated no prejudice
from the alleged imprecision, we reject his claim.

IV.

Williams next contends that the failure to arraign on a superseding
indictment requires a reversal. We disagree.

Williams was originally charged and arraigned on an indictment
alleging, inter alia, that he possessed a 9mm Smith and Wesson hand-
gun during and in relation to a drug trafficking offense in violation
of § 924(c). Following his not guilty plea, a superseding indictment
was filed that modified the § 924(c) count by adding that he also pos-
sessed a .45 caliber handgun during the offense. Although it does not
appear that Williams was arraigned on the superseding indictment, the
record reveals that he was served with a copy the week before his
trial. He now claims that the failure to re-arraign constitutes reversible
error because it compromised his ability to defend himself.

A failure to arraign only warrants a reversal if it causes prejudice
or impairs a substantial right. Garland v. Washington, 232 U.S. 642
(1914). Williams has suggested no prejudice from the minor alteration
to the original indictment; his brief contains no arguments as to how
his defense was impaired or prejudiced. In light of the fact that the
superseding indictment merely added an additional handgun and Wil-
liams was notified of this modification, no reversible error was com-
mitted.

V.

Next, Williams challenges the district court's instruction on the
"use or carry" element of § 924(c) in view of Bailey v. United States,
516 U.S. 137 (1995). Without reiterating the instruction in full, it is
sufficient to note that the instruction clearly violated Bailey. As Wil-
liams did not object to the erroneous instruction at trial, he must dem-

                     7
onstrate plain error to warrant a reversal or remand. Johnson v. United
States, 117 S. Ct. 1544 (1997) (applying to comparably erroneous
instruction the plain error test of United States v. Olano, 507 U.S. 725
(1993)). Under the Olano/Johnson plain error analysis, Williams must
show that (1) there is error, (2) the error is plain, and (3) the error
affects substantial rights. Johnson, 117 S. Ct. at 1549. If all three con-
ditions are met, we may then exercise our discretion to notice the for-
feited error, but even then only if the error "seriously affects the
fairness, integrity, or public reputation of judicial proceedings." Id. In
applying the final, discretionary step, we consider whether the trial
evidence was "overwhelming" and "essentially uncontroverted." Id. at
1550. "Central to this inquiry is a determination of whether, based on
the record in its entirety, the proceedings against the accused resulted
in a fair and reliable determination of guilt." United States v. Cedelle,
89 F.3d 181, 186 (4th Cir. 1996).

Accepting that Williams satisfies the first two prongs and assuming
that such an erroneous "use" instruction affects substantial rights, we
would yet decline to exercise our discretion to notice the error. Look-
ing to the evidence adduced at trial, Pedro Gonzalez and Hendrick
both testified without contravention that Williams carried a firearm in
his holster when he conducted drug transactions. Hendrick specifi-
cally recounted that, when he purchased crack from Williams in April
1995, Williams was carrying a handgun. In addition, uncontradicted
evidence also established that, just prior to his arrest and upon his
return from selling crack, Williams placed a firearm that he had been
carrying beneath his seat in the Oldsmobile. The police recovered this
firearm during their search of the vehicle.

The above evidence was not rebutted at trial and is not challenged
on appeal. In fact, Williams acknowledges that most of the evidence
presented supports the finding that he carried a handgun in relation to
a drug trafficking offense. Notwithstanding, he maintains that a
remand is necessary because at least one piece of evidence--Pedro
Gonzalez's testimony that he went recreational shooting with Wil-
liams in Ohio--when viewed alone, could not support a conviction
under § 924(c).

This testimony, however, does not controvert or even call into
doubt the considerable testimony that Williams carried a firearm dur-

                     8
ing and in relation to a drug trafficking crime. As was the case in
Johnson, the evidence at trial in this case was"overwhelming" on the
"carry" element, 117 S. Ct. at 1550, and "permit[ted] no other conclu-
sion," Cedelle, 89 F.3d at 186, but that Williams was guilty. Under
these circumstances, exercising our discretion not to notice the
instructional error will not result in a miscarriage of justice or affect
the fairness or integrity of the proceedings. "Indeed, it would be the
reversal of a conviction such as this which would have that effect."
Johnson, 117 S. Ct. at 1550.

VI.

Next, Williams challenges the district court's attribution of drug
quantities for purposes of determining his base offense level. He
maintains that the evidence does not support the district court's con-
clusion, made without factual findings, that he be held accountable for
over 13,000 kilograms of marijuana equivalency when, in fact, the
police only found in his possession 2.9 grams of crack cocaine and
.7 grams of cocaine powder, which would be equivalent to only
around 58 kilograms of marijuana.

Because the approximation of drug quantities is so critical a factor
in determining sentence length for drug trafficking offenses, specific
requirements for making and reviewing factual determinations of drug
quantities apply. If the defendant objects to a quantity recommended
in a presentence report, the district court must make an independent
resolution of the factual issues raised by the objection. U.S. Sentenc-
ing Guidelines Manual § 6A1.3 (1997); United States v. Gilliam, 987
F.2d 1009, 1013 (4th Cir. 1993). The court can do this either by a sep-
arate recitation of its findings as to the disputed matters or by express
adoption of the findings contained in the presentence report. United
States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991).

If the defendant's objection to a particular PSR finding fails to
articulate the reasons why the facts asserted are unreliable, untrue or
inaccurate, the district court need not undertake an in-depth review.
Without an affirmative suggestion that the PSR recommendation is
unsound, the court is "free to adopt the findings of the [PSR] without
more specific inquiry or explanation." United States v. Terry, 916
F.2d 157, 162 (4th Cir. 1990). In other words, "the Government car-

                     9
ries its burden if a defendant fails to properly object to a recom-
mended finding in a presentence report that the court determines to
be reliable." Gilliam, 987 F.2d at 1013. If the district court makes
adequate findings regarding drug quantity, those findings stand unless
determined on review to be clearly erroneous. See United States v.
Cook, 76 F.3d 596, 604 (4th Cir. 1996).

In this case, the PSR recommended that 712.5 grams of cocaine
base and 113.4 grams of cocaine powder be attributed to Williams.
429 grams of the cocaine base and the entire amount of cocaine pow-
der was said to be derived from "an unprotected statement" given out
of court by Pedro Gonzalez detailing Williams's drug activities in
both Pennsylvania and North Carolina.1 Testimony from trial pro-
vided the asserted basis for the remaining 283.5 grams of cocaine
base.

At sentencing, Williams objected to the attribution of any drug
amount above the quantities actually recovered by the officers at the
scene of his original arrest. He also challenged the estimates as specu-
lative and uncorroborated. The district court denied Williams's objec-
tions stating:

          I tried the case and I have reviewed my notes on the amount,
          and the Court is satisfied without any further consideration
          of this matter that there was an equivalency of more than ten
          thousand kilos of marijuana. And there was an amount of
          cocaine base and cocaine powder that totaled more than
          13,000. So that is correct.

(J.A. at 240-41.)

By its literal import, this statement did not represent an express
adoption by the district court of the PSR's findings regarding drug
quantities. That, however, does not necessarily prevent a determina-
tion upon review that the district court's sentencing process involved
an implicit adoption of the PSR findings. In certain situations,
_________________________________________________________________
1 The PSR did not mention when Pedro Gonzalez made this statement,
to whom he made it, the circumstances under which it was made, or how
it came to the attention of the probation officer.

                    10
depending upon the context, a sentencing court's denial of an objec-
tion may properly be taken as an implicit adoption of the findings at
which the objection was aimed. See United States v. Walker, 29 F.3d
908, 912 (4th Cir. 1994). In such a situation, confident appellate
review may be undertaken on the basis of such an implicit adoption.
Regrettably, however, this is not such a case. Rather than merely
denying Williams's objections after reviewing the PSR findings
(which likely would have been sufficient in light of the general nature
of the objections), the district court explained that, based on its notes
and recollection from the trial, the drug amount suggested in the PSR
conformed to the court's belief that the drug quantity met the thresh-
old equivalency level of 10,000 kilograms of marijuana.2 The district
court's identification of the source of its determination could not rea-
sonably be construed as an adoption of the PSR findings because the
drug amounts in the PSR were derived predominantly from Pedro
Gonzalez's unprotected out-of-court statements that were not intro-
duced at trial. Because the district court expressly indicated reliance
on factual predicates that differed from the underlying findings in the
PSR, we cannot fairly imply an adoption of the PSR findings by the
court. See United States v. Truesdale, 23 F.3d 878, 887 (4th Cir.
1993) ("[T]here seems to be no doubt that the district court could
have expressly found that there was insufficient bases for th[e] objec-
tions. The problem is that the court made no such findings.");
Morgan, 942 F.2d at 246 (indicating that the mere imposition of a
sentence consistent with the presentence report does not satisfy the
requirement of an express finding).

Without being able to rely on the factual findings in the PSR and
lacking specific findings by the district court based upon the trial tes-
timony (and court notes) generally identified as the court's source, it
_________________________________________________________________
2 Based on the drug quantity table in the U.S. Sentencing Guidelines
Manual § 2D1.1(c) (1997), a drug quantity of between 10,000 and
30,000 kilograms of marijuana or its equivalency warrants an offense
level of 36. Relying on its trial notes, the district court indicated that it
was satisfied that the combined amount of cocaine base and cocaine
powder translated into a total of more than 13,000 kilograms of mari-
juana. Citing both trial testimony and out-of-court statements, the PSR
suggested a total marijuana equivalency of 14,272.68 kilograms. Thus,
under either approach, the resulting base offense level was 36.

                     11
is impossible for us to review the district court's quantity findings for
clear error. We might assume from the court's general reference that
it accepted all of the trial testimony about the scope of Williams's
drug dealings. But we cannot safely do so, and if any less than all
were assumed, it is not manifest from the record what was accepted
and what rejected in coming up with the final quantities found. For
discrepancies and possible overlaps in the whole range of testimony
abound. For example, Pedro Gonzalez testified that Williams trans-
ported two blocks or "cookies" of crack less than an inch thick,
weighing about 10 ounces to North Carolina. Similarly, Hendrick tes-
tified that he saw Williams with a block of crack several inches thick
weighing approximately half of a kilogram (17.6 ounces). From the
record, it could not confidently be determined whether the district
court credited one or both of these witnesses's statements and, more
importantly, whether the court treated the amount cumulatively (27.6
grams) or as merely describing the same block of cocaine.3

In a situation such as this, when the district court has not expressly
or by implication adopted the PSR findings nor made sufficiently
detailed independent findings on the critical issue of drug quantity for
sentencing purposes, we have no recourse but to remand for adequate
findings. See United States v. Chambers, 985 F.2d 1263, 1269 (4th
Cir. 1993).4

VII.

Finally, Williams challenges the district court's assessment of a
two-level enhancement for obstruction of justice. Because the facts
underlying this enhancement are undisputed and the claim involves a
_________________________________________________________________
3 A brief review of the entire trial record would seem to support the
notion that the trial court must have treated Pedro Gonzalez's and Hend-
rick's testimony as describing separate and distinct cocaine amounts in
order to arrive at a figure of greater than a 13,000 kilogram marijuana
equivalency. Yet, in its brief, the government referred to testimony of
these two as describing the same cocaine and, thus, corroborating its
existence rather than establishing two, separate drug quantities.
4 In view of this conclusion, we do not reach Williams's further chal-
lenges to the reliability of Pedro Gonzalez's "unprotected statement" and
the district court's failure to estimate conservatively the drug quantities.

                     12
purely legal issue, we review the district court's ruling de novo. See
United States v. Hicks, 948 F.2d 877, 884 (4th Cir. 1991).

Section 3C1.1 of the Sentencing Guidelines instructs that "[i]f the
defendant willfully obstructed or impeded . . . the administration of
justice during the investigation, prosecution, or sentencing of the
instant offense, increase the offense level by 2 levels." U.S. Sentenc-
ing Guidelines Manual § 3C1.1 (1997). The commentary to this sec-
tion further explains the types of conduct that do and do not warrant
the enhancement. In providing "a non-exhaustive list of examples of
the types of conduct to which this enhancement applies," Application
Note 3 explains that, inter alia, the increase is triggered by conduct
that involves "escaping or attempting to escape from custody before
trial or sentencing; or willfully failing to appear, as ordered, for a
judicial proceeding." Id. App. Note 3(e) (emphasis added). Con-
versely, Application Note 4 offers a non-exhaustive list of the type of
conduct that "ordinarily do[es] not warrant application of this
enhancement but may warrant a greater sentence within the otherwise
applicable guideline range."5 Included in this list is conduct character-
ized as "avoiding or fleeing from arrest" unless the conduct recklessly
creates a substantial risk of death or serious bodily injury to another
person. Id. App. Note 4(d) (emphasis added);§ 3C1.2.

In this case, Williams was arrested, handcuffed, and escorted to a
deputy's car. The officers then placed him in the back seat, in a com-
partment separated from the front seat of the car by a partition. After
being detained in the vehicle and during the officers' search of his
Chevy Blazer, Williams managed to escape. He was apprehended the
following morning, having cut through his handcuffs and hidden them
under his sleeves.

Williams argues that his conduct falls within a sort of "gray area"
created by the wording of the two application notes. Although he had
already been arrested, Williams contends that he was not truly in cus-
tody within the intent of Application Note 3(e) because his escape
_________________________________________________________________
5 Because this case turns on the interpretation of App. Note 3(e), we
make no comment regarding whether the inclusion of the term "ordinar-
ily" in App. Note 4 confers more discretion upon the courts when evalu-
ating conduct of the type described therein.

                    13
was essentially part of the arrest episode. He notes that many of the
cases applying the flight-from-custody enhancement deal with escape
attempts from jail or failures to appear at required court hearings--all
events transpiring well after an arrest was fully consummated. See,
e.g., United States v. Miller, 77 F.3d 71 (4th Cir. 1996) (applying
enhancement where defendant fled state before sentencing); United
States v. Melton, 970 F.2d 1328 (4th Cir. 1992) (applying enhance-
ment where defendant attempted to escape from county jail by kick-
ing deputy). According to Williams, "a defendant's flight is
considered `from arrest' where it can be attributed to the `instinctive
flight of a suspect who suddenly finds himself in the power of the
police.'" United States v. Mondello, 927 F.2d 1463, 1466 (9th Cir.
1991) (interpreting § 3C1.1 before the 1991 amendments that added
the commentary at issue in this case).

To support his position, Williams relies predominantly on a Sev-
enth Circuit decision that upheld a district court's refusal to apply the
obstruction of justice enhancement under arguably similar circum-
stances. Draves v. United States, 103 F.3d 1328 (7th Cir.), cert.
denied, 117 S. Ct. 2528 (1997). In Draves , police officers went to the
defendant's home to execute two arrest warrants. The officers first
located the defendant, informed him of the charges against him, hand-
cuffed him, and placed him in the back seat of their car. Leaving the
defendant in the vehicle, the officers then initiated their search for the
other party. While the officers were attending to the other party, the
defendant seized the opportunity to flee from the arresting officers on
foot. The defendant was apprehended a mere three houses away from
the scene of arrest. Id. at 1336-37.

The district court in Draves denied an obstruction of justice
enhancement on these facts, finding that "for all practical purposes
when Mr. Draves fled this arrest was still in progress." Id. at 1337.
In affirming the district court, the Seventh Circuit declared that
"[o]bstruction of justice cases distinguish panicked, instinctive flight
from calculated evasion." Id. (citations omitted). Rejecting the gov-
ernment's request for a bright-line test, the court held that "Draves'
conduct had not, due to its duration or acts occurring in the course
thereof, ripen[ed] into a willful attempt to impede or obstruct the
administration of justice." Id. (internal quotations omitted). Observing
that Application Notes 3 and 4 are not mutually exclusive, the court

                     14
applied a discretionary test in which "[c]ircumstances may arise . . .
where formal custody is present, yet the defendant's action is best
viewed as the instinctive flight of a suspect who suddenly finds him-
self in the power of the police." Id. (internal quotations omitted).
Accordingly, the court held that the proper yardstick for assessing the
applicability of § 3C1.1 is "whether defendant's departure from the
scene of the arrest was spontaneous or calculated." Id. at 1338.

To the extent that the Draves opinion counsels against applying the
enhancement where the escape occurs contemporaneously with the
arrest episode, we respectfully disagree. Guidelines commentary is
binding unless it violates federal law or otherwise conflicts with a
plain reading of the guideline. Stinson v. United States, 508 U.S. 36
(1993). In this instance, the language of Application Note 3(e) clearly
states that the enhancement applies to escape or attempts to escape
"from custody." On the other hand, Application Note 4(d) provides
that it is not intended to apply to avoidance or flight "from arrest." As
Williams does not suggest that either provision violates federal law
or is inconsistent with § 3C1.1, we may only apply the commentary
as written. United States v. Banks, 130 F.3d 621, 625 (4th Cir. 1997),
cert. denied, 118 S. Ct. 1400 (1998).

Williams's assertion that we should interpret the term "from cus-
tody" to exclude conduct occurring during the arrest episode, even if
technically arising after formal arrest, is unpersuasive. We read the
commentaries as recognizing a clear dichotomy between the state of
being arrested and that of being in custody. The two states are well-
settled as separate ones in the law. While whether one or the other
exists in particular circumstances may create difficult factual issues,
we do not believe the commentaries permit their conversion into the
legal hybrid, "custody during an arrest episode," for which Williams
contends. The problem is only to determine a matter that it is possible
to determine under the law: whether at the critical time an arrest had
been accomplished and a state of legal custody had begun. See United
States v. Draper, 996 F.2d 982, 985-86 (9th Cir. 1993) ("[F]or pur-
poses of the obstruction guideline, `custody' need only involve some
degree of official control over a defendant such that a subsequent eva-
sion amounts to more than mere `avoiding or fleeing from arrest.'").
Here, there was no legal error in the district court's conclusion that
on the undisputed facts Williams's escape was "from custody," not

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"from arrest." The obstruction of justice enhancement was therefore
properly imposed.

VIII.

For the reasons stated above, Williams's convictions and the appli-
cation of a two-level enhancement for obstruction of justice are
affirmed. Because, however, the record is insufficient to permit a
meaningful appellate review respecting the amount of drugs attributed
to Williams for sentencing purposes, we vacate the sentence and
remand for resentencing consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART
AND REMANDED FOR RESENTENCING

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