UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 94-5894

RAY THOMAS KYLE, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-93-261)

Argued: February 2, 1996

Decided: July 17, 1996

Before ERVIN and MOTZ, Circuit Judges, and BLAKE, United
States District Judge for the District of Maryland,
sitting by designation.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: George Vernon Laughrun, II, GOODMAN, CARR,
NIXON, LAUGHRUN & LEVINE, P.A., Charlotte, North Carolina,
for Appellant. Gretchen C.F. Shappert, Assistant United States Attor-
ney, Charlotte, North Carolina, for Appellee. ON BRIEF: Mark T.
Calloway, United States Attorney, Charlotte, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

On December 2, 1993, the defendant, Ray Thomas Kyle, Jr., was
arrested at the home of his girlfriend, Sherry Baldwin, where he was
"cooking" cocaine into cocaine base and packaging marijuana. Bal-
dwin and two other individuals also were arrested. All four were
named in all four counts of a federal indictment filed December 8,
1993. The first count charged conspiracy to possess with intent to dis-
tribute cocaine and marijuana in violation of 21 U.S.C. § 846; the
other three counts were for possession with intent to distribute the
cocaine, cocaine base, and marijuana recovered on December 2, 1993.

On March 3, 1994, Kyle, represented by counsel, signed a plea
agreement with the government. Among its other provisions was a
promise to provide truthful cooperation and testimony against his co-
defendants upon request of the United States. In exchange, if the gov-
ernment determined that his assistance had been substantial, the gov-
ernment would move for a downward departure under§ 5K1.1 of the
United States Sentencing Guidelines.

On April 5, 1994, when interviewed by Alcohol, Tobacco, and
Firearms ("ATF") agent Boykin, Kyle apparently indicated that Bal-
dwin was aware of the conspiracy to distribute cocaine and marijuana,
allowed her house to be used as a "stash house" for drugs, and
assisted Kyle in packaging marijuana. He also stated that some of the
money obtained from drug sales was used to pay Baldwin's living
expenses. On May 25, 1994, Kyle entered a plea of guilty to Count
One, the conspiracy count, at a Rule 11 hearing before the district
court. He made no factual representations during this hearing.

At some point prior to the scheduled trial of Baldwin, apparently
after learning she was pregnant and believing it to be with his child,
Kyle "recanted" the statement he had given to Agent Boykin. The

                    2
government subsequently dismissed the indictment against Baldwin.
Kyle was never called upon to testify. At the sentencing hearing on
November 10, 1994, the prosecutor stated, without further explana-
tion, that Kyle's recantation "directly disintegrated our case against
Sherry Baldwin." (Supp. J.A. at 2). Kyle's attorney, while not deny-
ing that his client has recanted his statement to the ATF agent, con-
tended that Kyle had not obstructed justice within the meaning of
U.S.S.G. § 3C1.1. Over the government's objection, the district court
granted a three-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1.1At the government's request, however, the court
applied a two-level enhancement for obstruction, resulting in an
offense level of 33 and a sentencing range of 188 to 235 months of
incarceration.2 The court imposed a prison term of 188 months and
modified the plea agreement to permit this appeal.

Factual findings made by the district court in connection with the
application of an enhancement under the Sentencing Guidelines are
reviewed for clear error, while issues of law are subject to de novo
review. United States v. Blake, 81 F.3d 498, 503 (4th Cir. 1996).3 The
burden is on the government to prove by a preponderance of the evi-
dence that a sentencing enhancement applies in a particular case.
United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir. 1989),
cert. denied, 493 U.S. 943 (1989).
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1 The government did not appeal the three-level reduction for accep-
tance of responsibility.

2 While it is unusual for a defendant to receive both a reduction for
acceptance of responsibility and an enhancement for obstruction of jus-
tice, it is not precluded by the Guidelines. See United States v. Hicks, 948
F.2d 877, 885 (4th Cir. 1991); U.S.S.G. §3E1.1, commentary, (n.4). Sec-
tion 3E1.1 focuses on a defendant's admission of his own wrongful con-
duct and his entry of a guilty plea in time to save the government and
the court the necessity of preparing for trial. Kyle satisfied the require-
ments of § 3E1.1.

3 A district court's decision to depart from the sentencing ranges in the
Guidelines is reviewed, not de novo, but for abuse of discretion. Koon v.
United States, No. 94-1664, 1996 WL 315800, at *8 (U.S. 1996).

                    3
Section 3C1.1 of the Guidelines provides, in full:

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

This section is intended to apply to "defendants who engage in con-
duct calculated to mislead or deceive authorities or those involved in
a judicial proceeding . . . and applies to a wide range of conduct."
United States v. Ashers, 968 F.2d 411, 413 (4th Cir.), cert. denied,
506 U.S. 1027 (1992) (internal quotation marks and citations omit-
ted). The conduct must be "wilful," meaning a defendant must act
"`consciously . . . with the purpose of obstructing justice.'" United
States v. Romulus, 949 F.2d 713, 717 (4th Cir. 1991) (quoting United
States v. Stroud, 893 F.2d 504, 507 (2nd Cir. 1990)), cert. denied, 503
U.S. 992 (1992). This Circuit has upheld application of § 3C1.1
where a defendant intentionally falsified a voice exemplar, see
Ashers, 968 F.2d at 413; provided a false name and age to obtain
release on bond, see Romulus, 949 F.2d at 717 (4th Cir. 1991), cert.
denied, 503 U.S. 992 (1992); and lied to a probation officer about the
amount of attorneys' fees paid, see Hicks, 948 F.2d at 885-87.

The commentary to U.S.S.G. § 3C1.1 contains a"non-exhaustive
list of examples of the types of conduct" covered by the guideline,
U.S.S.G. § 3C1.1, commentary, (n.3), as well as a "non-exhaustive
list of examples of the type of conduct that . . . do not warrant applica-
tion of this enhancement," id. (n.4). Making a false statement, not
under oath, to a law enforcement officer, ordinarily does not warrant
application of the enhancement unless it was a "materially false state-
ment . . . that significantly obstructed or impeded the official investi-
gation or prosecution of the instant offense." Id. This Court is bound
by the Guidelines, including the commentaries that interpret or
explain a guideline. Stinson v. United States , 508 U.S. 36, 38 (1993).4
Accordingly, the government must prove by a preponderance of the
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4 The Commentary to a particular guideline is not binding if it "violates
the Constitution or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline." Stinson, 508 U.S. at 38. None of
those exceptions are applicable here.

                    4
evidence not only that Kyle's statement was false, but also that it sig-
nificantly hindered the investigation or prosecution of the case. See
United States v. Surasky, 976 F.2d 242, 246 (5th Cir. 1992) (reversing
application of enhancement to a mere denial of guilt); United States
v. Urbanek, 930 F.2d 1512, 1515 (10th Cir. 1991) (reversing applica-
tion of enhancement where denial of use of aliases amounted merely
to a "`refusal to admit guilt or to provide information'" (quoting
U.S.S.G. § 3C1.1 commentary, (n.1))).

We have concluded that the case should be remanded for further
development of the factual record. See United States v. Alpert, 28
F.3d 1104, 1108 (11th Cir. 1994). There is insufficient evidence in the
record before the district court to support a finding that Kyle's recan-
tation of the information he proffered to Agent Boykin significantly
hindered the investigation or prosecution of Baldwin's case. First, it
must be noted that the grand jury indicted Baldwin on December 8,
1993, without the benefit of any information from Kyle. As to the
prosecution of Baldwin's case, the government must have been pre-
pared to proceed to trial against Baldwin without Kyle's testimony,
at least during the time from the indictment through April 5, 1994.
This conclusion is compelled by the fact that the indictment remained
in place even though no proffer was received from Kyle until that
date.

At sentencing the government offered nothing to substantiate its
counsel's assertion that Kyle's recantation was sufficient to "directly
disintegrate our case against Sherry Baldwin." 5 There is nothing in the
record to suggest that Kyle intended to testify falsely in favor of Bal-
dwin at trial. Nor is there anything in the record to explain why the
government could not have proceeded to trial against Baldwin with
the evidence it already had. At present, the facts show that Kyle
agreed to testify against his girlfriend, but changed his mind upon
learning she was pregnant with his child. For that decision he lost the
benefit of his cooperation agreement with the government.6 Had he
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5 Nor is there anything in the record to show specifically what Kyle
stated in his "recantation."
6 As noted above, the plea agreement called for Kyle to provide truthful
information and testimony upon request in exchange for which, if his
assistance was substantial, the government would move for a downward
departure under § 5K1.1 of the Guidelines. By his recantation, therefore,
Kyle forfeited the opportunity for a significant decrease in his sentence.

                    5
chosen not to cooperate with the government initially, his refusal
could not have been considered as an aggravating sentencing factor.
See U.S.S.G. § 5K1.2.

On this record, Kyle's actions thus are distinguishable from those
of the defendant in United States v. Acuna, 9 F.3d 1442, 1444-46 (9th
Cir. 1993), who was found to have testified falsely for his co-
defendants after entering a plea agreement with the government.
Refusal to testify against co-conspirators was found to constitute wil-
ful obstruction in United States v. Morales, 977 F.2d 1330 (9th Cir.
1992), cert. denied, 507 U.S. 966 (1993), but only after an immunity
order had been issued and the district court "explained to Morales the
possible consequences of his refusal and gave him several opportuni-
ties to testify." Id. at 1331; see also United States v. Williams, 922
F.2d 737, 739 (11th Cir.), cert. denied , 502 U.S. 892 (1991) (dictum).
There is no evidence that any such explanation or order was given to
Kyle after his recantation. Apparently, the government simply
decided to dismiss the indictment rather than proceed with the evi-
dence it already had against Baldwin or seek an order compelling
Kyle's testimony.7

It may well be that on remand the government can demonstrate
why Kyle's recantation required dismissal of the indictment against
Baldwin or otherwise significantly hindered the investigation or pros-
ecution of her case. We hold only that the government failed to pres-
ent such proof in connection with Kyle's sentencing, and
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7 The government also argues that an enhancement under § 3C1.1 may
be applied because Kyle attempted to conceal the cocaine located in Bal-
dwin's house when law enforcement authorities entered to execute the
search warrant. That argument was raised before the sentencing judge,
who did not rely on it in applying the § 3C1.1. enhancement. Application
of § 3C1.1 for an attempt to conceal narcotics or other contraband is not
warranted where the attempt occurs contemporaneously with arrest and
does not result in a material hindrance to the government's investigation.
See U.S.S.G. § 3C1.1, commentary, (n.3d); United States v. Perry, 991
F.2d 304, 311-12 (6th Cir. 1993). Kyle's attempt to hide the narcotics
was not successful, and there is no evidence that the investigation was
hindered in any way.

                    6
consequently the district court's implicit finding of obstruction cannot
be sustained.8

Kyle also argues that § 3C1.1 does not apply because the trial of
a co-conspirator does not constitute the "instant offense" for purposes
of applying the § 3C1.1 enhancement. A number of our sister circuits
have held that the term "instant offense" refers only to the offense of
conviction. See e.g., United States v. Strang, 80 F.3d 1214, 1218 (7th
Cir. 1996); United States v. Kim, 27 F.3d 947, 958 (3rd Cir. 1994),
cert. denied, 115 S. Ct. 900 1991); United States v. Perdomo, 927
F.2d 111, 118 (2nd Cir. 1991). Whether the enhancement may be
applied where the obstruction occurred in the case of a co-defendant
is a subject of some disagreement. See Acuna, 9 F.3d at 1446; United
States v. Bernaugh, 969 F.2d 858, 861-62 (10th Cir. 1992) (applying
enhancement). Contra Strang, 80 F.3d at 1218; United States v.
Partee, 31 F.3d 529, 531-33 (7th Cir. 1994); United States v. Banks,
751 F. Supp. 1161, 1166 (M.D. Pa. 1990), aff'd , 931 F.2d 52 (3rd Cir.
1991) (enhancement not applicable to false testimony in co-
defendant's case).

This Circuit has not yet resolved whether the term"instant offense"
in § 3C1.1 applies to obstruction in connection with the investigation,
prosecution, or sentencing of a co-defendant. We are persuaded, how-
ever, that the term "instant offense" is broad enough to encompass a
defendant's obstruction of his co-conspirator's case where the defen-
dant's offense of conviction is the identical conspiracy charge for
which his co-conspirator is being prosecuted. See Morales, 977 F.2d
at 1331; cf. Partee, 31 F.3d at 531 ("Offense of conviction . . . refers
only to the offense conduct charged in the count of the indictment or
information of which the defendant was convicted.") (internal quota-
tion marks and citations omitted).
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8 In Alpert the court explained that

          [i]n order to permit meaningful appellate review, when a district
          court applies the obstruction enhancement because a defendant
          made false statements, not under oath, to law enforcement offi-
          cers, it must find that the statements were false and material. It
          must also explain how the statements significantly obstructed or
          impeded the investigation or prosecution of the offense.

Alpert, 28 F.3d at 1107.

                    7
Accordingly, the sentence is vacated and this case is remanded for
further factual findings consistent with this opinion.

VACATED AND REMANDED

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