                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                          _____________________

                               No. 97-60712
                          _____________________



UNITED STATES OF AMERICA,

                              Plaintiff - Appellee - Cross-Appellant,

                                 versus

RONALD JOSEPH CLAYTON,

                              Defendant - Appellant - Cross-Appellee.

_________________________________________________________________

      Appeals from the United States District Court for the
                 Northern District of Mississippi
_________________________________________________________________
                          April 12, 1999
Before JOLLY, WIENER, and PARKER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge


     Ronald Joseph Clayton, former Chief Deputy Sheriff of DeSoto

County, Mississippi, stands convicted of violating the civil

rights of an arrested woman by kicking her in the head.              He also

was convicted of making a false statement of material fact to the

FBI when he denied the use of unreasonable force during the

incident of arrest.       On appeal, Clayton challenges the district

court’s denial of his motion for judgment of acquittal on the

grounds   that    the   government   had   failed   to   establish    venue.

Clayton also contends that the district court gave an improper
modified Allen charge to the jury.              Finally, Clayton challenges

the sufficiency of the evidence supporting his convictions.

     The government cross-appeals.          It contends that the district

court erred in failing to enhance Clayton’s offense level by two

levels, first, under § 3A1.3 and, second, under § 3C1.1 of the

United States Sentencing Guidelines because Freeman was physically

restrained   (handcuffed)    during       the   time   she   was   kicked,   and

because   Clayton   obstructed     the     federal     investigation    of   the

incident by warning officers at the scene of the offense to keep

silent about what they saw.

     We affirm each of Clayton’s convictions, and his sentence for

making a false statement of material fact.               We vacate Clayton’s

sentence with respect to the civil rights conviction and remand

for resentencing.

                                      I

     We do not retry a case in the appellate court.                We therefore

view the facts in the light most favorable to the verdict.                    We

will very briefly state those facts.             Clayton, during the drug-

related   arrests    of   Jaefis   Totten        and   Jennifer    Freeman   on

January 13, 1994, kicked Freeman in the head as she lay facedown

and handcuffed.     Clayton was also charged with kicking Totten and

striking him with a police-issued flashlight.                On March 9, 1995,

during the course of a federal investigation of the incident




                                      2
conducted by the FBI, Clayton expressly denied kicking, striking,

or using force against the pair.

     Some two years later, on May 22, 1997, the grand jury

indicted Clayton on one count of depriving Totten of his right to

be secure from unreasonable force by one acting under the color of

law,1 one count of depriving Freeman of her right to be secure from

unreasonable force by one acting under the color of law, and one

count of making a false statement of material fact to the FBI.2

     The case was tried to a jury in July 1997.    The jury, after

five and one-half hours of deliberating, informed the district

court that it was unable to reach a verdict on one of the charges.

The court gave the jury a modified Allen charge, instructing    it

to keep deliberating.    The jury returned the split verdict, now

the subject of this appeal, forty-five minutes after the district

court gave the charge.   The jury found Clayton guilty of count 2,

violating Freeman’s civil rights and count 3, making a false

statement of material fact to the FBI.        The jury, however,

acquitted Clayton of depriving Totten of his civil rights.

     On October 15, 1997, the district court sentenced Clayton to

twelve months and one day imprisonment for the civil rights

conviction and twelve months and one day imprisonment for the

    1
     18 U.S.C. § 242.
    2
     18 U.S.C. § 1001.




                                3
false statement conviction.          The district court ordered Clayton’s

sentences to be served concurrently.           It also fined him a total of

ten thousand dollars, five thousand for each conviction.                       The

district court further ordered Clayton to be placed on supervised

release   after    his     imprisonment      for   a   term    of   three   years.

Finally, in sentencing Clayton, the district court rejected the

government’s    argument      that   under    U.S.S.G.     §    3A1.3   Clayton’s

offense level should be adjusted upward by two-levels because he

assaulted Freeman while she was handcuffed.                   The district court

also rejected the government’s recommendation for the two-level

obstruction of justice enhancement under U.S.S.G. § 3C1.1 on the

grounds that Clayton obstructed the subsequent FBI investigation

of the incident when, at the scene of the offense, he threatened

the officers with termination unless they kept quiet about what

they had seen.

     On appeal, Clayton argues that the district court erred in

denying   his     motion    for   judgment     of      acquittal    because    the

government failed to prove that venue for the indicted offenses

lay in the Northern Judicial District of Mississippi.                       Second,

Clayton contends that the district court’s modified Allen charge

was prejudicial and coercive.              Finally, Clayton challenges the

sufficiency of the evidence.




                                       4
       On cross-appeal, the government contends that because Freeman

was handcuffed when Clayton kicked her in the head, the district

court erred in failing to enhance Clayton’s offense level under

the victim restraint adjustment, U.S.S.G. § 3A1.3. The government

further contends that because Clayton threatened officers with

termination if they reported the offense, the district court erred

in    refusing   to   apply   the   obstruction     of   justice   adjustment,

U.S.S.G. § 3C1.1.

       After a careful review of the record, we are satisfied that

the    government     adequately    established     venue    of    the   charged

offenses.3       We also find that the sufficiency of the evidence

supports      Clayton’s   convictions      for   violating   Freeman’s     civil

rights4 and for making a false statement of material fact the FBI.5

      3
      Viewing all the evidence in the light most favorable to the
government, we conclude that the government established that each
of Clayton’s charged offenses occurred in the Northern Judicial
District of Mississippi. United States v. Leahy, 82 F.3d 624, 633
(5th Cir. 1996)(citations omitted). There is no dispute that the
acts of unreasonable force underlying the charges against Clayton
occurred along Highway 178, eastbound.      FBI Agent John Lavoie
testified that Highway 178 is located in DeSoto County,
Mississippi. Similarly, the conversation forming the basis of the
false statement of material fact to the FBI also occurred in DeSoto
County, specifically, at the DeSoto County Sheriff’s Department.
Finally, Clayton himself admitted at trial that DeSoto County,
Mississippi, is located in the Northern Judicial District of
Mississippi. In the light of this proof, it is unnecessary for us
to elaborate further on the other evidence establishing venue in
this case.
          4
       The evidence is clearly sufficient to support the civil
rights conviction. Three of the officers who witnessed Clayton




                                       5
We therefore turn to address Clayton’s remaining argument and the

arguments raised by the government on cross-appeal.

                                         II

                                          A

         Clayton   argues   that   each       of   his    convictions   should    be

reversed because the district court’s modified Allen charge6 was

both prejudicial and coercive.                Specifically, Clayton contends

that the Allen charge was coercive because the district court

alluded      to    sequestering    the        jury   in    the   course   of     its


kick Freeman in the back of the head testified that at the time of
assault, Freeman lay on the ground facedown, that she did not
resist arrest, and that she posed no threat of harm to the
officers.   Officer Steve Bierbrodt testified that Freeman was
handcuffed during the offense. The three officers further agreed
that Clayton’s use of force in this manner was either unjustified
or without cause. In finding Clayton guilty beyond a reasonable
doubt, the jury must have credited this testimony over Clayton’s
explanation that he merely placed his foot between Freeman’s
shoulder blade and her neck, and that his actions were necessary to
put her under control so that she could be handcuffed. We find
this credibility determination well within the province of the jury
to make, and it is one that we will not disturb on appeal.
    5
     In support of Clayton’s false statement conviction, FBI Agent
Lavoie testified that in a March 9, 1995 interview, Clayton
explicitly stated that he had not struck nor kicked Freeman during
her January 13, 1994 arrest, and that in accordance with his hands-
off policy, he did not interfere with his officers during the
course of an arrest. There was sufficient evidence--noted above in
footnote 4--that Clayton’s statements to Agent Lavoie were false
and material. The jury could rationally conclude that they were
made with the specific intent to thwart the federal investigation
into his use of unreasonable force. See United States v. Sidhu,
130 F.3d 644, 650 (5th Cir. 1997)(citations omitted).
        6
         See Allen v. United States, 164 U.S. 492, 501 (1896).




                                         6
deliberations.    Clayton argues that the coercive effect of the

district court’s threat of sequestration is supported by the fact

that the jury returned a split verdict against him in only forty-

five minutes after receiving the instruction.            Clayton further

argues that the Allen charge was prejudicial because no reference

was made to the government’s burden of proving the charges against

him beyond a reasonable doubt.        Clayton therefore contends that

the instruction encouraged the jury to accept a level of proof

below a reasonable doubt.

                                  B

     Because Clayton failed to object to the jury charge at trial,

we review the district court’s modified Allen charge for plain

error, a very difficult standard to satisfy, indeed.            Douglas v.

United Serv. Auto. Ass’n., 79 F.3d 1415, 1424 (5th Cir. 1996) (en

banc)(citations   omitted).   Under      the   plain    error   standard,

forfeited errors are subject to review only where the errors are

“obvious,” “clear,”   or “readily apparent,” and they affect the

defendant’s substantial rights.       Id.; United States v. Calverley,

37 F.3d 160, 162-63 (5th Cir. 1994) (en banc), abrogated in part

by, Johnson v. United States, 117 S.Ct. 1544, 1549 (1997).              We

will not exercise our discretion to correct the forfeited errors,

however, unless they “seriously affect the fairness, integrity, or

public reputation of the judicial proceeding.”         Calverley, 37 F.3d




                                  7
at 164 (citations omitted).          Applying these standards to the

record before us, we do not find that the district court erred,

plain or otherwise, in giving the jury the modified Allen charge.

     We permit district courts to give modified versions of the

Allen   charge,   so   long   as   the   circumstances   under   which   the

district court gives the instruction are not coercive, and the

content of the charge is not prejudicial.        United States v. Heath,

970 F.2d 1397, 1406 (5th Cir. 1992) (citations omitted).                 The

district court specifically instructed the jury, in part:

     [I]f I dismissed you for the night–-it would be very
     difficult at this time to get accommodations for you.
     I know several of you live pretty far away, so that
     might be impractical but it is not impossible that you
     could go home for the night and come back tomorrow if
     you thought that would help, give you a fresh start
     tomorrow.

Because nothing in this record plausibly can be read to suggest

that the district court coerced the jury to reach its verdict by

threatening sequestration, we find no “clear” nor “obvious” error

in the charge.     Nor do we find the jury’s return of a verdict

after only a forty-five minute deliberation, in and of itself, to

be proof that its verdict was coerced.             Even under the more

stringent abuse of discretion standard, we have approved Allen

charges where the jury later deliberated for as short as twenty-

five minutes.     United States v. Scruggs, 583 F.2d 238, 241 (5th

Cir. 1978) (citations omitted).




                                     8
       We     are   also     satisfied      that      the    Allen   charge   was    not

prejudicial.          The district court, in its final jury charge,

admonished the jury at least eleven times that the government had

the burden of proving Clayton’s guilt beyond a reasonable doubt.

The district court also took care in its final charge to define

the    term    “reasonable      doubt”      and    the      phrase   “proof   beyond   a

reasonable doubt.”           Given the district court’s constant emphasis

on the reasonable doubt standard, the exclusion of the standard

from    the    Allen     charge     could   not       have   prejudiced   the   jury’s

understanding of the level of proof necessary to convict Clayton,

so as to have affected his substantial rights--the outcome of his

trial.

       Even if we assumed plain error on the part of the district

court,      Clayton    can    not    show   that       the   modified   Allen   charge

seriously affected the “fairness, integrity or public reputation”

of his trial.         In the light of the jury’s discriminating verdict,

whereby Clayton was acquitted of one of the civil rights charges,

we cannot say that the district court pressured the jury into

returning       guilty     verdicts    on       the    remaining     counts   that     it

otherwise would not have reached.

       In sum, Clayton has shown no plain error with respect to the

district court’s modified Allen charge.

                                            III




                                            9
                                       A

      We now turn to the government’s cross-appeal.

      The district court concluded that because Freeman had been

lawfully restrained (handcuffed) during the course of a legitimate

arrest--a   restraint     that   was    separate      from    and    not    done   to

facilitate the commission of the offense itself--the two-level

victim restraint adjustment, U.S.S.G. § 3A1.3, was not applicable.7

      In   its   cross-appeal,    the       government       contends      that    the

district court erred in refusing to apply the victim restraint

adjustment to Clayton’s offense level.           The government argues that

the   district     court’s   interpretation      of    U.S.S.G.       §    3A1.3    is

contrary to the plain language of the guideline, which provides no

exception    for    the   “lawful”     restraint      of     the    victim.        The

government further argues that application of the guideline was

warranted because Freeman was handcuffed when Clayton kicked her

in the head.




       7
       U.S.S.G. § 3A1.3 (1994) provides that “if a victim was
physically restrained in the course of the offense, increase by 2
levels.”




                                       10
                                       B

     The      district   court’s     interpretation     of    the   sentencing

guidelines is a conclusion of law that we review de novo.              United

States   v.    Lister,   53   F.3d   66,   69   (5th   Cir.   1995)(citations

omitted).

     First, we find that the district court’s interpretation of

U.S.S.G. § 3A1.3, although reasoned and well considered, is not

supported by the letter of the guideline.              Section 3A1.3 simply

provides, with two exceptions that are inapplicable here, a two-

level enhancement to the defendant’s sentence if the victim was

physically restrained in the course of the offense.                  U.S.S.G.

§ 3A1.3 (“if a victim was physically restrained in the course of

the offense, increase by 2 levels”).            Furthermore, we think that

an underlying consideration in applying the guideline is that the

physical restraint of a victim during an assault is an aggravating

factor that intensifies the wilfulness, the inexcusableness and

reprehensibleness of the crime and hence increases the culpability

of the defendant.        It is true, as the district court concluded,

that Freeman was not handcuffed to facilitate the commission of

the offense against her--Clayton’s use of unreasonable force.

Nevertheless, Clayton took advantage of the restraint Freeman was

under as she lay on the ground, handcuffed.               She posed not the

slightest threat to him in this condition.             She could not defend




                                      11
herself against an assault, and could not flee from harm.                Because

Clayton took    advantage   of   this      restraint      and   the   particular

vulnerability of the victim, it seems to us that both the letter

and spirit of the guideline applies to impose an additional

sentence on Clayton, beyond the one mandated for his use of

unreasonable force.     Especially in the light of the facts in this

case, we agree with the Fourth Circuit that the lawfulness of the

defendant’s restraint of the victim at the time the unreasonable

or excessive force occurs is not a concern implicated by U.S.S.G.

§ 3A1.3.   See United States v. Evans, 85 F.3d 617 (4th Cir. 1996)

(TABLE, TEXT IN WESTLAW, 1996 WL 233056) (rejecting argument

U.S.S.G. § 3A1.3 enhancement inapplicable because handcuffing

incidental to lawful arrest).

     We therefore reverse the district court’s ruling, vacate the

sentence   on   count    two,    and       remand   for     resentencing     not

inconsistent with this opinion.

                                       C

     The government further argues that the district court erred

in failing to add a two-level adjustment to Clayton’s offense

level for obstruction of justice under U.S.S.G. § 3C1.1, on the

grounds that Clayton threatened the witnesses prior to the federal

investigation of his civil rights offenses.




                                   12
     The government argues that at the scene of the January 13,

1994 arrests, Clayton warned several officers that they did not

see anything and that if he had to worry about them telling what

they saw, he did not need them working for him.                      These threats,

the government says, deterred officers from coming forward with

information        to     the   FBI,     thereby    obstructing       the   federal

investigation.          The government argues that the plain language of

U.S.S.G. § 3C1.1, which speaks of conduct occurring during an

investigation,8 does not actually require the attempt to obstruct

justice      to   occur    during      the    federal   investigation.       It   is

sufficient if Clayton’s threats were made for the purpose of

obstructing the administration of justice.                     Relying on United

States v. Barry, 938 F.2d 1327, 1334 n.8 (D.C. Cir. 1991), the

government argues that in 1990, the Sentencing Commission amended

the commentary to U.S.S.G. § 3C1.1 to extend application of the

guideline to conduct made unlawful by the federal obstruction of

justice statutes, 18 U.S.C. §§ 1501-1516.                     This amendment, the

government argues, “implies that the Sentencing Commission did not

intend       to   bar    consideration        of   attempts     to   obstruct     the

administration of justice solely because the obstruction occurred

         8
       U.S.S.G. § 3C1.1 (1994) provides that “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.”




                                             13
before the commencement of the investigation of the offense.”

Finally, although the government concedes that Fifth Circuit

precedent         limits   application     of   U.S.S.G.     § 3C1.1     to    conduct

occurring “during the investigation of the instant offense,” see

United States v. Luna, 909 F.2d 119, 120 (5th Cir. 1990), United

States       v.    Wilson,   904    F.2d    234,   236     (5th   Cir.   1990),    the

government contends that because the 1990 amendments post-date

these cases, the 1990 amendments--not our cases--provide the

authoritative interpretation of the guideline.

                                            D

     We cannot agree with the government’s proposed application

of U.S.S.G. § 3C1.1.               The plain language of U.S.S.G. § 3C1.1

(1994) provides that “if the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of

justice during the investigation . . . of the instant offense,

increase the offense level by 2 levels.”                 (Emphasis added.)       We do

not dispute that the 1990 amendments extended the application of

U.S.S.G. § 3C1.1 to conduct prohibited by the federal obstruction

of   justice         statutes.        See       U.S.S.G.     §    3C1.1,      comment.

(n.3(i))(1994) (noting enhancement applies to conduct prohibited

by 18 U.S.C. §§ 1501-1516.)9                Indeed, we have previously held


         9
        Application note 3 to U.S.S.G § 3C1.1 (1994) reads as
follows:




                                           14
generally that conduct prohibited by 18 U.S.C. § 1512 triggers the

application of U.S.S.G. 3C1.1.            See United States v. Greer, 158

F.3d 228, 236-37 (5th Cir. 1998), cert. denied, 119 S.Ct. 1129

(1999); United States v. Graves, 5 F.3d 1546, 1555 (5th Cir.

1993), cert. denied, 511 U.S. 1081 (1994); United States v.

Pofahl, 990 F.2d 1456, 1482-83 (5th Cir. 1993), cert. denied, 510

U.S.    996   (1993).         Furthermore,   we   note   specifically        that

§ 1512(b)(3) criminalizes intimidation or threats made with the

intent to “hinder, delay, or prevent the communication to a law

enforcement officer or judge of the United States of information

relating to the commission or possible commission of a Federal

offense . . . .”        Thus, it would seem that vis-à-vis application

note 3(i), which incorporates by reference § 1512(b)(3), the

guideline     may   be    applied    to    conduct   occurring      before    an

investigation begins.

       Consequently,     we    acknowledge   that    there   does    exist     an

apparent conflict between the plain language of U.S.S.G. § 3C1.1

and application note 3(i) that must be resolved.                 In resolving


       The following is a non-exhaustive list of examples of the
       type of conduct to which this enhancement applies . . .
            (i) conduct prohibited by 18 U.S.C. §§ 1501-
            1516.
       This adjustment also applies to any other obstructive
       conduct in respect to the official investigation,
       prosecution, or sentencing of the instant offense where
       there is a separate count of conviction for such conduct.
       (Emphasis added.)




                                      15
such inconsistencies, we treat commentary to a guideline as akin

to a federal agency’s interpretation of its own legislative rules,

and it is therefore given controlling weight when interpreting and

applying a particular guideline.     Stinson v. United States, 508

U.S. 36, 44-45 (1993).   The Supreme Court has made clear, however,

that “if the commentary and the guideline it interprets are

inconsistent, in that following one will . . . violat[e] the

dictates of the other, the Sentencing Reform Act itself commands

compliance with the guideline.”      Id. at 43 (citing 18 U.S.C.

§§ 3553(a)(4), (b)); United States v. Ashburn, 20 F.3d 1336, 1340

(5th Cir. 1994), cert. denied, 514 U.S. 1113 (1995).      See also

United States v. Oritz-Granados, 12 F.3d 39, 42 (5th Cir. 1994)

(citations omitted).

     In any event, it seems to us the apparent conflict between

U.S.S.G. § 3C1.1 and its 1990 commentary can be reconciled without

declaring which must prevail over the other in this instance.   In

short, the commentary properly interpreted creates no conflict

with the guideline.    From the language of application note 3(i),

see footnote 9, supra, at 15, it does not automatically follow

that any and all conduct prohibited by the obstruction statutes

requires the application of the guideline.        Furthermore, the

proper application of the commentary depends upon the limits--or

breadth--of authority found in the guideline that the commentary




                                16
modifies and seeks to clarify.               Here, the guideline specifically

limits        applicable    conduct     to    that   which    occurs   during     an

investigation; application note 3(i) expressly provides that it is

describing       only   a   type   of    conduct     that    is   subject   to   the

guideline.        We therefore conclude that conduct that violates 18

U.S.C. §§ 1501-1516 warrants application of U.S.S.G. 3C1.1 only

when such conduct occurs, in the words of the guideline, during an

investigation of the defendant’s instant offense.                   We agree with

the Tenth Circuit that the plain language of U.S.S.G. § 3C1.1

explicitly contemplates this temporal or nexus requirement.                      Cf.

United States v. Gacnik, 50 F.3d 848, 852-53 (10th Cir. 1995)

(conduct undertaken prior to investigation does not fulfill nexus

requirement enunciated in U.S.S.G. § 3C1.1) (citations omitted)

and United States v. Lister, 53 F.3d 66, 71 (5th Cir. 1995)

(“obstruction of justice [adjustment] involves . . . a temporal

requirement. . . .”).

     We also find that our reading of § U.S.S.G. § 3C1.1 is

entirely consistent with the Sentencing Commission’s most recent

clarification of the guideline–-a clarification, we add, that

takes precedent over prior conflicting judicial interpretations.

Stinson, 508 U.S. at 46.10              In 1998, the Sentencing Commission

         10
        We note that our interpretation of U.S.S.G. § 3C1.1 is
inconsistent with other circuits who have previously addressed this
issue. See United States v. Lallemand, 989 F.2d 936, 938 (7th Cir.




                                         17
amended the commentary to U.S.S.G. 3C1.1 expressly to provide,

inter alia, that “[the obstruction] adjustment applies if the

defendant's obstructive conduct . . . occurred during the course

of   the      investigation,      prosecution,     or     sentencing    of   the

defendant's instant offense of conviction . . . .”11                    U.S.S.G.

§ 3C1.1, comment. (n.1) (1998).            The purpose of the 1998 amendment

to application note one was to clarify the point that we have made

here,      that    U.S.S.G.   §   3C1.1,    indeed,     includes   a   “temporal

element.”         U.S. SENTENCING GUIDELINES MANUAL, Supplement to Appendix

C, Amendment 581 (1998).12           To be sure, we are bound by this

amended commentary, Stinson, 508 U.S. at 46, and our authority to

give it recognition retroactively is without question.                    United

States v. Anderson, 5 F.3d 795, 802 (5th Cir. 1993), cert. denied,

510 U.S. 1137 (1994) (citations omitted).                 Furthermore, in the




1993) (noting “obstruction of justice can be set in train before
investigation begins”); United States v. Barry, 938 F.2d 1327,
1333-34 (D.C. Cir. 1991) (applying U.S.S.G. § 3C1.1 enhancement to
conduct occurring prior to investigation or prosecution of offense
of conviction).
     11
          The 1998 Amendments were effective November 1, 1998.
     12
      Amendment 581 provides in pertinent part:
     The amendment also clarifies the temporal element of the
     obstruction guideline (i.e., that the obstructive conduct
     must occur during the investigation, prosecution, or
     sentencing of the defendant’s offense of conviction).
U.S. SENTENCING GUIDELINES MANUAL, Supplement to Appendix C, Amendment
581 (1998).




                                       18
light of the 1998 amendments, our earlier cases interpreting

U.S.S.G. § 3C1.1 remain binding authority.         See Luna, 909 F.2d at

120, Wilson, 904 F.2d at 236.

       Thus, in sum, we cannot say that Clayton’s conduct justifies

application of U.S.S.G. 3C1.1.       Although it is clear that Clayton

took   immediate    steps   to   suppress   information   concerning   the

incident by intimidating and threatening the officers at the

scene, there is no evidence that Clayton continued these threats

once the federal investigation of his case began.           We therefore

reject      the   government’s   argument    for   application   of    the

obstruction of justice enhancement.13




       13
        In reaching this end we note that the current, modified
version of application note 3(i) is found in application note 4(i)
of the 1998 obstruction of justice enhancement, U.S.S.G. § 3C1.1
(1998). Application note 4(i) provides in part:
     The following is a non-exhaustive list of examples of the
     types of conduct to which this adjustment applies. . .
     (i) other conduct prohibited by the obstruction of
     justice provisions under Title 18, United States Code
     (e.g., 18 U.S.C. §§ 1510, 1511).
     This adjustment also applies to any other obstructive
     conduct in respect to the official investigation,
     prosecution, or sentencing of the instant offense where
     there is a separate count of conviction for such conduct.
U.S.S.G. § 3C1.1, comment. (n.4) (1998).         Without question,
application note 4(i) poses the same potential conflict with the
plain language of U.S.S.G. § 3C1.1 as does note 3(i). We therefore
emphasize that notwithstanding our repeated reference to the 1990
commentary and U.S.S.G. 3C1.1 (1994), our holding today is not
limited in application to this dated version of the obstruction of
justice enhancement.




                                    19
                                  IV

     For the foregoing reasons, each of Clayton’s judgments of

conviction is affirmed.   We AFFIRM the sentence with respect to

count three, we VACATE Clayton’s sentence with respect to count

two, and REMAND for resentencing on that count in a manner not

inconsistent with this opinion.

                 CONVICTIONS AFFIRMED; SENTENCE VACATED in part;
                                      REMANDED for resentencing.




                               20
WIENER, Circuit Judge, specially concurring.

     I concur in the foregoing opinion, including its analysis of

U.S.S.G. § 3C1.1 in sections IIIC and D and its conclusion that

the sentence enhancement provisions of § 3C1.1 are inapplicable to

obstructive conduct that occurs before the commencement of an

investigation.    Nevertheless, I write separately to express my

consternation with what I perceive to be absurd results produced

by that rule, for which perception the instant case could well be

Exhibit I: A high ranking county law enforcement officer blatantly

commits a federal crime in full view of several subordinate

officers (who are presumably at-will employees) and immediately

threatens them with loss of employment if they break the unwritten

“code of silence” either by reporting the crime or responding

truthfully to investigatory questions about the crime; yet because

the perpetrator’s obstructive conduct at the scene of the crime of

necessity predates the commencement of any investigation, his

sentence is immune from enhancement for obstruction of justice.

     I reluctantly agree that this result is mandated by the

Sentencing Commission’s 1998 amendment of the commentary to §

3C1.1 —— specifically U.S.S.G. § 3C1.1, comment. (n.1) (1998) ——

and the explanation contained in U.S. Sentencing Guideline Manual,

Supplement   to   Appendix   C,   Amendment   581   (1998)   that   “the




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obstructive      conduct        must    occur      during      the    investigation,

prosecution,      or     sentencing         of     the   defendant’s      offensive

conviction.”      I just cannot fathom why that should be!

      The plain language of § 3C1.1 clearly does not command such

a bizarre result under any known rules of interpretation.                      Whether

examined under legal canons of statutory interpretation or plain

English rules of syntax, the phrase “during the investigation”

should   be    read    to   modify      the      immediately    preceding      phrase,

“administration of justice,” not the more remote clause (“the

defendant willfully... attempted to obstruct or impede”).                       When §

3C1.1 is given such a faithful reading, Clayton’s warning to his

deputies immediately after the completion of his criminal conduct

was obviously and specifically intended to obstruct or impede the

facet of the administration of justice that would take place

during   the    investigation          of   his    offense     (and   likely   during

prosecution and sentencing as well).                     Indeed, if the subject

Guideline were meant to be applied as the Sentencing Commission

now   instructs       through    its    1998      amendments,     why   was    it   not

originally written to read:

              If the defendant, during the investigation,
              prosecution, or sentencing of the instant
              offense, willfully obstructed or impeded, or
              attempted   to  obstruct   or   impede,  the
              administration of justice, increase the
              offense level by 2 levels.




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Such a rearrangement of the various clauses and phrases of this

directive would dispel any doubt and justify the inclusion of a

“temporal element.”     As it stands, though, the plain wording of

the Guideline should make the enhancement applicable to Clayton.

Still, I concede that the 1998 amendments condemn the actual

language of § 3C1.1 to the dustbin of careless drafting (or

careless reading) by construing that wording to innoculate the

obstructer’s sentence from being enhanced when his obstructive

conduct precedes the commencement of an investigation.

     Inasmuch as I am aware of nothing in the legislative history

of this Guideline that reflects an intent of Congress to exempt

obstructive conduct like Clayton’s solely on the basis of timing

vis-a-vis the commencement of an investigation, I urge that the

Sentencing Commission, or the Congress itself, either fix the

problem or explain this aberration for the benefit of sentencing

courts and those of us who must review their work on appeal.

Please enlighten us all:   Is the panel’s analysis in the foregoing

opinion simply wrong?   If not, what policy dictates the Sentencing

Commissions’s interpretation which, I submit, produces such an

anomalous result?




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