215 F.3d 737 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Frank W. Simmons,    Defendant-Appellant.
No. 99-3739
In the  United States Court of Appeals  For the Seventh Circuit
Argued March 29, 2000
Decided June 13, 2000

Appeal from the United States District Court  for the Eastern District of Wisconsin.  No. 99 CR 122--Rudolph T. Randa, Judge.
Before Flaum, Ripple and Kanne, Circuit Judges.
Kanne, Circuit Judge.


1
Pursuant to a plea  agreement, Frank Simmons agreed to cooperate with  the government and testify at the trial of Dwayne  Reed. Simmons testified at Reed's trial, which  ended in a mistrial in January 1999. For his  cooperation, Simmons received a six-level  downward departure from the applicable sentencing  range of the Sentencing Guidelines, resulting in  a 55-month decrease in his sentence.


2
When Reed was retried, the district court  ordered Simmons to testify again. Simmons refused  to testify in the second trial, claiming that the  government had reneged on a commitment made at  his sentencing to grant him additional time off  his sentence for his continued cooperation. The  district court held Simmons in contempt for his  refusal to testify, and found him guilty of  criminal contempt at a bench trial in September  1999. At sentencing, the district court departed  eight levels upward from the applicable  Guidelines sentencing range, increasing his  sentence from the range of 18-24 months to 46-57  months, then sentenced him to 57 months. Simmons  appeals the district court's denial of his motion  to dismiss the criminal contempt charge on the  basis of Simmons's "good faith" defense and the  district court's decision to depart from the  applicable sentencing range.


3
We affirm the  decisions of the district court.

I.  History

4
Simmons was arrested on July 2, 1998, shortly  after he and two other men robbed a First  Municipal Credit Bank in Milwaukee, Wisconsin.  After his arrest, Simmons made a statement to  authorities pursuant to a proffer agreement in  which he provided information about individuals  with whom he had previously performed bank  robberies. One of these robberies was committed  at Educator's Credit Union in Milwaukee on  September 8, 1997, with the aid of two other men,  one of whom was Dwayne Reed. During this robbery,  Reed controlled the lobby by brandishing a  weapon, while Simmons hurdled the bank counter  and gathered money from the tellers.


5
Simmons pleaded guilty on November 17, 1998, to  the First Municipal Credit Bank robbery pursuant  to a plea agreement with the government. The plea  agreement required Simmons to cooperate "fully  and completely" with the government's prosecution  of the accomplices whom Simmons named in his  proffer. While awaiting his own sentencing, Reed  was arrested, and Simmons was called to testify  as a prosecution witness at Reed's trial. Simmons  testified against Reed, but the trial ended in a  hung jury and a mistrial was declared on January  6, 1999.


6
On March 24, 1999, Simmons was sentenced for  his own bank robbery conviction. Pursuant to the  plea agreement, the government requested that  Simmons receive a six-level downward departure  from the applicable sentencing range based on the  substantial assistance that he provided to the  government. The district court granted the  government's request and departed six levels  downward from the applicable sentencing range,  reducing the range from 151-188 months to 92-115  months. The court sentenced Simmons to 96 months  in prison followed by three years supervised  release. At the sentencing hearing, the  government noted that the Reed prosecution  resulted in a mistrial and suggested that it  would call Simmons again as a witness in the  retrial of Reed. Counsel for the government  stated that, if Simmons continued to testify  truthfully and reliably, "I anticipate there  would be a further motion to this court,"  apparently to reconsider Simmons's sentence, at  which point the government felt that "[Simmons]  would be entitled to additional credit."


7
Dwayne Reed's retrial began on June 7, 1999. By  this time, however, Simmons no longer wanted to  testify against Reed. Despite Simmons's wishes to  the contrary, the district court ordered Simmons  to testify. Simmons initially refused to testify and asked to speak with his attorney. The  district court warned Simmons that he could be  found in contempt on the basis of his refusal to  testify and subjected to additional penalties.  After speaking with his client, Simmons's  attorney, Scott Phillips, asked the government  whether Simmons would be entitled to additional  credit in exchange for his testimony. The  government responded that Simmons would not  receive additional credit and that there would be  "no deal" at that point. Simmons believed that by  this action, the government had reneged on the  plea agreement, and he reiterated his refusal to  testify. The district court repeated that Simmons  would be found in contempt if he refused to  testify, but Simmons refused. On this basis, the  government asked that Simmons be declared an  unavailable witness, and Simmons's testimony from  the first trial was read into evidence at the  Dwayne Reed retrial. After his refusal to testify  at the retrial, Simmons wrote a letter to Reed  informing Reed that he had refused to testify or  cooperate with the government in Reed's  prosecution. Reed presented this letter at the  retrial to dispute the credibility of Simmons's  testimony. This letter stated in part: "Say man  check this out. I told them people fuck that  shit. . . . never can I help them people take  your life like that. . . . Wayne, like I said  fuck them honkies I told them people I aint with  it and that's for real. Take care." The jury  found Reed guilty of bank robbery.


8
On June 16, 1999, the district court certified  Simmons for contempt and set a date for a jury  trial. Shortly thereafter, Simmons filed a motion  to dismiss the criminal contempt charge because  his refusal to testify stemmed from his good  faith belief that the government had reneged on  their plea agreement. Immediately prior to trial,  the government moved in limine to prevent Simmons  from presenting evidence of this good faith  defense. The district court found that its order  to testify had been clear and that Simmons had  not indicated any inability to comply. On this  basis, the court found that the good faith  defense had no merit as a matter of law, and the  court granted the government's motion in limine  and denied Simmons's motion to dismiss. Simmons  then waived his right to jury trial. On September  2, 1999, the district court conducted a bench  trial, and Simmons was found guilty of criminal  contempt.


9
Simmons was sentenced on October 15, 1999. At  sentencing, the district court accepted the  computation of the pre-sentencing report ("PSR"),  which applied United States Sentencing Guidelines  sec. 2J1.5(a), failure to appear as a material  witness (as directed by sec.sec. 2X5.1 and  2J1.1), and sec. 2J1.5(b), substantial  interference with the administration of justice,  to reach a total offense level of nine. Simmons's  criminal history category was V, which with his  total offense conduct, created an applicable  Guidelines range of 18-24 months. The government  requested that the district court depart upward  from the applicable range because Simmons's  knowing refusal to testify took his conduct  outside the heartland of conduct contemplated by  sec. 2J1.5(a). The district court agreed, and  found that Simmons's refusal to testify, as well  as his change of heart evidenced by his letter to  Reed, removed Simmons's conduct from the range of  activity contemplated by the Guidelines.  Accordingly, the court determined that an upward  departure in the total offense level was  appropriate, and the court enhanced Simmons's  total offense level eight levels, increasing the  applicable sentencing range to 46 to 57 months.  The court sentenced Simmons to 57 months  imprisonment, to be served consecutively to his  term of imprisonment for bank robbery.

II.  Analysis

10
On appeal, Simmons raises two issues. First, he  contends that the court erred in denying his  motion to dismiss the criminal contempt charge on  the basis of his good faith defense and in  granting the government's motion in limine, which  denied Simmons the right to raise this defense at  trial. Second, he argues that the court erred in  departing upward from the applicable sentencing  range. We review de novo the district court's  denial to allow a defendant to raise a proffered  defense, a question of law. See United States v.  Santiago-Godinez, 12 F.3d 722, 726 (7th Cir.  1993). We review a district court's decision to  depart for abuse of discretion and accept the  findings of fact underlying such a departure  unless clearly erroneous. See United States v.  Cruz-Guevara, 209 F.3d 644, 647 (7th Cir. 2000);  United States v. Wilke, 156 F.3d 749, 753 (7th  Cir. 1998). A district court's determination of  the extent of a departure is discretionary, see  United States v. Leahy, 169 F.3d 433, 445 (7th  Cir. 1999), so we review this determination for  abuse of discretion. "We will uphold the extent  of the departure taken as long as it is  reasonable and adequately reflects the structure  of the Guidelines." United States v. Hogan, 54  F.3d 336, 341 (7th Cir. 1995).

A.  Motion to Dismiss

11
Criminal contempt is used to punish disobedience  of a court order, and courts often find a  defendant in contempt when he willfully refuses  to comply with a valid court order. See, e.g.,  United States v. Marquardo, 149 F.3d 36, 39-40  (1st Cir. 1998). Simmons does not dispute that  the district court issued an order that he  testify or that he refused to testify. Instead,  Simmons claims that he refused to testify in the  good faith belief that the government had reneged  on their plea agreement. Because a good faith  effort to comply with a court order negates  willfulness, an element of criminal contempt that  must be proven beyond a reasonable doubt, a  defendant may present evidence of good faith as  a defense to a criminal contempt charge. See  United States v. Monteleone, 804 F.2d 1004, 1011  (7th Cir. 1986); United States v. Ray, 683 F.2d  1116, 1126 (7th Cir. 1982).


12
However, Simmons fails to present evidence that  would demonstrate good faith. A defendant can  show good faith by providing evidence that his  noncompliance did not constitute a refusal or  resulted from the indefiniteness of the district  court's order or some other factor rendering the  defendant incapable of performing the order. See  Ray, 683 F.2d at 1126. The district court's order  to testify was quite clear, however, and the  court reiterated both its order and the  consequences of Simmons's refusal several times.  Simmons presents no evidence that he was  incapable of testifying, nor can we adduce any  factor that may have rendered him incapable of  testifying. Simmons refused to comply with a  clear court order, and the court correctly found  him in contempt.


13
Simmons argues that his testimony should not  have been compelled because of the alleged breach  of the plea agreement, but this argument is  without merit. "[T]he public is entitled to any  man's evidence concerning criminal acts committed  by another." United States v. Patrick, 542 F.2d  381, 388 (7th Cir. 1976). If the court felt that  Simmons's testimony was necessary to the Reed  retrial, the court was empowered to compel his  testimony. See id. Even assuming arguendo that  the government breached the plea agreement, this  breach would not, as Simmons implies, authorize  him to refuse the court's order to testify.  Instead, Simmons should have testified before the  court and then brought an action against the  government to enforce the terms of the plea  agreement. For this reason, the evidence of  breach that Simmons wished to provide was  irrelevant. The district court properly refused  to allow Simmons to raise a good faith defense on  this evidence and properly denied Simmons's  motion to dismiss. Simmons briefly argues that  his consultation of counsel immunizes him from  contempt, but "an attorney may not exculpate his  client of contempt by advising him to disobey an  order of the court." Monteleone, 804 F.2d at  1011.

B.  Sentencing Departure

14
Guidelines sec. 2J1.1 requires courts sentencing  a defendant for contempt to apply sec. 2X5.1  "[b]ecause misconduct constituting contempt  varies significantly." U.S.S.G. sec. 2J1.1  application note 1. Guidelines sec. 2X5.1 directs  courts to apply the "most analogous offense  guideline." U.S.S.G. sec. 2X5.1. In this case,  the district court concurred with the  recommendation of the PSR to apply Guidelines  sec. 2J1.5, failure to appear as a material  witness, as the most analogous offense guideline.  Guidelines sec. 2J1.5 provides a base offense  level of six when a witness has failed to appear  for a felony trial, U.S.S.G. sec. 2J1.5(a)(1),  and directs courts to increase by three levels if  the failure to appear resulted in "substantial  interference with the administration of justice."  U.S.S.G. sec. 2J1.5(b).


15
Simmons does not dispute that sec. 2J1.5 was  the most analogous offense guideline, and we have  previously held that sec. 2J1.5 is most closely  analogous to refusal to comply with an order to  testify. See United States v. Ortiz, 84 F.3d 977,  981-82 (7th Cir. 1996). However, the district  court felt that Simmons's refusal to testify was  a factor that removed his conduct from the  heartland of conduct contemplated by the  Sentencing Commission and departed upward an  additional eight levels, to produce a total  offense level of seventeen. Simmons appeals this  departure, claiming that a refusal to testify on  the grounds of a breach of a plea agreement does  not constitute a factor that would remove  Simmons's conduct from the heartland established  for sec. 2J1.5.


16
This court employs a three-part approach in  reviewing a district court's decision to depart  upward from the applicable Guideline range. See  Leahy, 169 F.3d at 439. First, we determine  whether the grounds for departure were  appropriate. See id. Second, we determine whether  the court committed any clear errors in its  findings of fact regarding the departure. See id.  Third, we consider whether the extent of the  departure was reasonable. See id.


17
A district court may depart from the applicable  Guidelines range and sentence a defendant outside  that range only if "the court finds 'that there  exists an aggravating or mitigating circumstance  of a kind, or to a degree, not adequately taken  into consideration by the Sentencing Commission  in formulating the guidelines that should result  in a sentence different from that described.'"  U.S.S.G. sec. 5K2.0 (quoting 18 U.S.C. sec.  3553(b)). In Koon v. United States, the Supreme  Court explained this requirement by noting that  the Sentencing Commission intended "the  sentencing courts to treat each guideline as  carving out a 'heartland,' a set of typical cases  embodying the conduct that each guideline  describes." 518 U.S. 81, 93 (1996) (quoting  U.S.S.G. ch. 1 pt. A, intro. cmt 4(b)). In an  "atypical" case, where "a particular guideline  linguistically applies but where conduct  significantly differs from the norm" a court is  permitted to depart from the applicable  Guidelines sentencing range, U.S.S.G. ch. 1 pt.  A, intro. cmt. 4(b).


18
In the instant case, the district court felt  that Simmons's outright refusal to testify,  coupled with his change of heart as to his  decision to testify, served to distinguish  Simmons's behavior from other behavior within the  heartland of sec. 2J1.5. Guidelines sec. 2J1.5  applies in all cases where a material witness,  for any reason, fails to testify in a criminal  trial. This guideline contemplates a broad  variety of conduct within its heartland.  Nonetheless, the district court did not err in  determining that Simmons's conduct went beyond  the level of conduct contemplated by the  Sentencing Commission when it promulgated sec.  2J1.5.


19
Simmons participated in the crimes for which  Reed was tried, and his cooperation enabled the  government to indict Reed. For this cooperation  and his testimony at Reed's trial, Simmons was  given a significantly reduced sentence on his own  bank robbery conviction. After he received his  sentence reduction, Simmons had a change of  heart, writing to Reed that "I told them people  fuck that shit . . . never can I help them people  take your life like that. . . . I told them  people I aint with it and that's for real."  However, even Simmons's protestations to Reed  proved inaccurate, for Simmons would have been  willing to testify at Reed's retrial, had the  government agreed to provide Simmons with extra  time off his sentence. The government refused to  accede to this demand, and Simmons petulantly  refused to testify, despite a clear court order  compelling him to do so. In addition, Reed  presented Simmons's letter at his retrial in an  attempt to compromise the credibility of  Simmons's previous testimony, which had been read  into the record. In this context, Simmons's  refusal to testify demonstrates many elements of  obstruction, and his conduct exceeds the type of  absenteeism contemplated by the Sentencing  Commission in sec. 2J1.5. Therefore, we find that  the court's decision to depart was reasonable  under the circumstances.


20
Simmons does not contend that the district  court's findings of fact were in error, so we  must determine only whether the extent of the  court's upward departure was reasonable.  Sentencing courts need not adhere to a mathematic  approach in determining the extent of a  departure. Instead, "[t]he law merely requires  that district judges link the degree of departure  to the structure of the Guidelines and justify  the extent of the departure taken." United States  v. Scott, 145 F.3d 878, 886 (7th Cir. 1998).  Here, the district court determined that  Simmons's conduct merited an eight-level  departure upward, and this determination is  articulated within the methodology of the  Guidelines and linked to the general structure of  the Guidelines, which applies a higher total  offense level to obstructive conduct like  Simmons's. See, e.g., U.S.S.G. sec. 2J1.2  (applying base offense level of twelve for  obstruction of justice). In addition, the court  found that Simmons's actions constituted a  repudiation of his previous agreement to  cooperate with the government. In return for his  cooperation at Reed's first trial, Simmons's  sentence was reduced by at least 55 months. On  this basis, the court felt that a sentence of 57  months was appropriate because it took away the  "benefit" conferred upon the defendant by the  government. The district court did not abuse its  discretion in making this determination.

III.  Conclusion

21
The district court did not err in refusing to  allow Simmons to present his good faith defense  to criminal contempt, nor did the court abuse its  discretion in its departure from the applicable  Guidelines range. Therefore, the decisions of the  district court are Affirmed.

