                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                  Nos. 98-1833/1952
                                    ___________

United States of America,                 *
                                          *
      Appellant/Cross-appellee,           *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Northern District of Iowa
Dustin Lee Honken,                        *
                                          *
      Appellee/Cross-appellant.           *
                                     ___________

                               Submitted: October 21, 1998

                                    Filed: July 9, 1999
                                     ___________

Before McMILLIAN, JOHN R. GIBSON and HANSEN, Circuit Judges.
                            ___________

McMILLIAN, Circuit Judge.


       The United States (the government) appeals from a 292-month sentence the
United States District Court for the Northern District of Iowa imposed on appellee,
Dustin Lee Honken, on his guilty plea to conspiring to distribute methamphetamine, in
violation of 21 U.S.C. § 846, and to attempting to manufacture methamphetamine, in
violation of 21 U.S.C. § 841(a)(1). In calculating appellee's sentence, the district court
assessed a 2-level increase for obstruction of justice, and awarded appellee a 3-level
acceptance of responsibility reduction. The government challenges the acceptance of
responsibility reduction contending that the district court adopted an incorrect legal
standard for determining the existence of an "extraordinary case" in which a defendant
who has obstructed justice may also receive a downward adjustment for acceptance of
responsibility. See U.S.S.G. § 3E1.1, application note 4. Specifically, the government
objects to the district court's conclusion that, if a defendant who has obstructed justice
pleads guilty to the offense with which he is charged and does not commit any further
obstruction of justice, then the case is "extraordinary," warranting the award of an
acceptance of responsibility reduction. The government further contends that, in
determining whether a case is extraordinary, the district court should take into account
the totality of the circumstances, including the nature of the obstructive conduct and the
degree of the defendant's acceptance of responsibility.

       Appellee filed a cross-appeal, in which he argues that the district court erred not
only in determining his drug quantity and in assessing the obstruction of justice
enhancement, but also in attempting to manipulate his sentence by enlarging the scale
of the crime, in violation of due process.

       For the reasons stated herein, we reverse the sentence imposed by the district
court and remand with directions to the district court to resentence appellee without a
reduction in the offense level for his acceptance of responsibility. We also affirm the
cross-appeal.

       The district court had jurisdiction over this criminal case pursuant to 18 U.S.C.
§ 3231. The prosecution of this appeal has been approved by the Solicitor General of
the United States in accordance with 18 U.S.C. § 3742(b). This court has jurisdiction
over the appeal pursuant to 18 U.S.C. § 3742(b), which provides that the United States
may file a notice of appeal for review of an otherwise final sentence if the sentence was
imposed as a result of an incorrect application of the sentencing guidelines. Appellee
cross-appealed.


                                           -2-
                                  BACKGROUND

      In April 1993, a grand jury in the Northern District of Iowa indicted appellee for
conspiracy to distribute methamphetamine. After the disappearance of one or more
prospective prosecution witnesses, the government dismissed the indictment. In April
1996, a grand jury in the Northern District of Iowa again returned a 3-count indictment
against appellee and one Timothy Cutkomp, charging them with drug related offenses.

       Subsequently, in July 1996, the grand jury returned a superceding indictment that
reinstated the April 1996 3-count indictment and added a fourth count against appellee.
In July 1997 appellee pleaded guilty to counts One and Four of the superceding
indictment. Count One charged that between 1992 and February 1996 appellee and
Cutkomp conspired to manufacture, attempt to manufacture, and distribute
methamphetamine. Count Four alleged that on or about February 7, 1996, appellee
attempted to manufacture methamphetamine. The government agreed to and did
dismiss Counts Two and Three, which alleged the unlawful possession of certain
chemicals and equipment used in the production and manufacture of
methamphetamine.1

       After a sentencing hearing which spanned over five days in December 1997 and
February 1998, the final pre-sentence report recommended that appellant's total offense
level was 45, and that the guideline range was life imprisonment. The district court,
however, concluded that the offense level was 38. The court assessed a base offense
level of 36, a 3-level increase for the role in the offense and a 2-level increase for
obstruction of justice. Contrary to the recommendation of the probation office, the



      1
       In May 1996, Cutkomp had agreed to plead guilty to the conspiracy charged in
Count One, and he cooperated with the government in the investigation and prosecution
of appellee and others.

                                          -3-
court also awarded appellant a 3-level decrease for acceptance of responsibility.2 The
court then sentenced appellee at the top of the resulting sentencing range of 235 to 293
months imprisonment.

        The government's evidence at the sentencing hearing supported the
recommendations of the probation office that appellant receive a 2-level adjustment
for obstruction of justice, and that he receive no downward adjustment for acceptance
of responsibility. The evidence supported several independent bases for an obstruction
adjustment including that: (1) appellee caused the disappearance of one or more
persons, including prospective prosecution witnesses, in 1993; (2) appellee attempted
to kill witnesses while on pre-trial release in 1996; (3) after he was detained in June
1996, appellee attempted to kill another cooperating witness whose cooperation had
resulted in his detention; (4) appellant attempted to escape from a county jail during the
period of pre-trial detention; and (5) appellant procured another person to conceal
evidence that was material to the case.3

      The drug conspiracy to which appellee pleaded guilty began in 1992. At that
time appellee and Cutkomp, who were childhood best friends in Iowa, had moved to
Arizona. With financial assistance from appellee's brother, Jeff, the two began to
manufacture methamphetamine near Tucson, Arizona. Customers for appellee's
methamphetamine in 1992 and 1993 included two Iowans named Gregory Nicholson

      2
       The district court declined to assess a 3-level adjustment recommended by the
probation officer for committing the conspiracy offense while on pre-trial release
between 1993 and 1995, and rejected the government's contention that appellant should
have been assessed a 2-level increase for possession of a firearm.
      3
        The government also moved for an upward departure from the guidelines based
on the extreme nature of the defendant's obstruction of justice. The district court ruled
that even if appellee killed witnesses, attempted to kill other witnesses before and after
his pre-trial detention, attempted to escape from jail and procured another person to
conceal evidence, the court would not make an upward departure.

                                           -4-
and Terry DeGeus. Cutkomp testified that he and appellee delivered methamphetamine
and collected money from Nicholson and DeGeus in Iowa. After Nicholson agreed to
cooperate with the authorities, appellee was arrested on March 21, 1993. On that date,
Nicholson conducted a tape recorded meeting with appellee during which Nicholson
paid appellee $3,000 toward an outstanding debt for methamphetamine. After the
meeting, law enforcement officers arrested appellee and Cutkomp as they left
Nicholson's residence. This arrest led to the grand jury indictment in April 1993 for
conspiracy to distribute methamphetamine. No federal charges were filed against
Cutkomp at that time.

       Nicholson was a cooperating witness for the prosecution in the 1993 case against
appellee, and appellee had agreed to plead guilty at a hearing set for July 30, 1993. At
that time, Nicholson lived in Mason City, Iowa, with his girlfriend, Laurie Duncan, and
Duncan's two young daughters. Approximately five days before appellee's scheduled
guilty plea hearing, on or about July 25, 1993, Nicholson and the Duncans disappeared.
At a neighbor's residence, investigators discovered a note stating, "Phyllis, had to leave
on short notice. Will be in touch shortly, Love, Laurie."

       The Duncan house showed no sign of packing. No vehicles were missing from
the residence. Investigation of local motels, airlines, busses, taxis and rental car
agencies found no evidence of travel by Nicholson or the Duncans. Mrs. Duncan's
bank account had a balance of over $600. Since July 1993 the account has had no
transactions, other than a deposit by the State of Iowa. On June 19, 1995, three boys
swimming in a river near Fertile, Iowa, found a black purse containing Laurie Duncan's
drivers license, two library cards and two rings, one of which bore Duncan's maiden
name. Recent checks in all 50 states by law enforcement agents have located no
person using the name, date or birth, or social security number of Nicholson or Laurie
Duncan. Schools attended by Duncan's daughters have never been contacted to obtain
student records for the girls. In short, law enforcement officers have been unable to
find any evidence that Nicholson or the Duncans are still alive. Rather strangely, on

                                           -5-
July 30, 1993, the date of appellee's scheduled guilty plea hearing, appellee advised the
court that he had changed his mind and wished to proceed to trial because appellee and
his attorney did not think that the case against him was as strong as the government
believed.

       Cutkomp testified that appellee told him in 1993 about the disappearance of
Nicholson and the Duncans. He said that appellee presented him with a hypothetical
scenario in which Cutkomp and close friends or family were held as hostages while
Cutkomp was ordered to make a videotape exonerating another person accused of a
crime. Appellee thereafter asked Cutkomp whether he would agree to make the
videotape under those circumstances. When Cutkomp replied that he would not,
appellee told him that all of the hostages would be killed whether or not the person
agreed to make the videotape. Cutkomp further testified that at a later date--during the
winter of 1993-94--appellant showed him a videotape and said that Greg Nicholson had
made the tape. According to Cutkomp, appellee told him that the tape showed
Nicholson stating that appellee was not involved in the drug business, and that
Nicholson was sorry for turning in appellee to law enforcement. Cutkomp testified that
appellee asked him to say that Nicholson had come to him with the videotape, so
Cutkomp might provide sufficient foundation to admit the videotape in court. Cutkomp
said he never viewed the tape.

       Cutkomp testified that after Nicholson's disappearance appellee told him that
Terry DeGeus (a second methamphetamine customer of appellee) had been subpoenaed
to the grand jury. Cutkomp said that appellee was concerned that if DeGeus was
charged, he would probably roll over and turn appellee in. On or about November 5,
1993, DeGeus disappeared. DeGeus' father said he last saw Terry on that date. Terry
DeGeus told his father that he was going to meet Angie Johnson, a woman who was
appellee's girlfriend at the time and a former girlfriend of DeGeus. Angie Johnson told
law enforcement officers that she saw DeGeus for the last time on November 5, 1993,


                                          -6-
outside the Mason City Country Club where she worked. DeGeus' vehicle was later
found abandoned at an apartment complex in Mason City, Iowa.

      Cutkomp testified that in a discussion with appellee about DeGeus'
disappearance in the spring of 1994, appellee talked about DeGeus' disappearance and
asked Cutkomp how deep farm equipment reached when farmers plowed land.
Cutkomp said that he interpreted this to mean appellee was worried that DeGeus' body
was not buried deep enough. Cutkomp said that on another occasion, appellee asked
how far down he needed to bury something to be sure that the frost would not bring it
up out of the ground. Appellee also told Cutkomp that he wanted to purchase a
backhoe to get rid of loose ends and appellee wondered aloud, according to Cutkomp,
how to build an incinerator and how hot an incinerator must be to burn a body.

        Cutkomp further testified that in 1994 he asked appellee about the likelihood that
either Greg Nicholson or Terry DeGeus would show up again, and appellee told him
that he was "99 percent sure that Greg would never show up again, but he was less
percent sure of Terry." Cutkomp interpreted this to mean that the bodies of Nicholson
and the Duncans were buried deeply enough that they would not be found, but that
appellee was worried that he had not buried DeGeus' body with sufficient depth.
Cutkomp testified that after DeGeus disappeared appellee contacted him for assistance
in disposing of a firearm. Cutkomp said that appellee told him that Angie Johnson had
purchased the handgun in or around Waterloo, Iowa. A firearm transaction record
showed that Johnson purchased a Tec-9 pistol at a pawn shop in Waterloo on July 7,
1993. According to Cutkomp appellee said he had purchased a gun to protect himself
from DeGeus, that he didn't need the gun anymore because Terry had disappeared and
that "if they were to find the gun, it would look bad to have a gun." Cutkomp said that
he and appellee melted down the gun with a torch and threw it in a ditch along a road.
He further said they had also disposed of a piece of metal on which the gun had been
melted because they didn't want any evidence of the gun there.


                                           -7-
        The 1993 federal drug case against appellee was dismissed in March 1995, due
largely to the disappearance of Nicholson. At that time, appellee was employed by
Kraft Foods in Mason City, Iowa. Another Kraft employee, Daniel Cobeen, testified
that he met appellee at work in the beginning or middle of 1995, and that appellee
approached him about becoming involved in the distribution and the manufacture of
methamphetamine. Cobeen reported this information to law enforcement agents, and
agreed to cooperate with agents by working in an undercover capacity. Cobeen
testified that appellee said that Cutkomp and Angie Johnson had invested money in his
methamphetamine laboratory, and that while cooperating with the agents, he
accompanied Cutkomp and appellee to acquire equipment for the laboratory.

      With the information from Cobeen, agents obtained a warrant to search
appellee's house in Mason City, IA. There the agents found and seized evidence of a
methamphetamine laboratory. This evidence led to the indictment of appellee and
Cutkomp in April 1996. However, at the time of the execution of the search warrant,
appellee had already concealed a hydrogen tank, which was used in the last phase of
manufacturing methamphetamine. Appellee had requested a co-worker, Jay Lien, to
keep the hydrogen tank for him. After the search of appellee's home, appellee advised
Lien to move the tank to a different location, which Lien did. Nevertheless, police
eventually found and seized the tank.

       Cutkomp testified that after their indictment, appellee and he discussed schemes
to destroy the evidence authorities had against them. Cutkomp testified that he and
appellee identified and conducted surveillance on a storage facility in Bondurant, IA,
where appellee believed the seized evidence was stored. He testified that he and
appellee planned to break into the facility and destroy the chemicals and other evidence
seized. Cutkomp testified that appellee also suggested that killing or making
unavailable certain witnesses would help them escape prosecution. Specifically,
appellee mentioned that the absence of key prosecution witnesses, such as cooperating
witness Cobeen, Special Agent John Graham of the Iowa Division of Narcotics

                                          -8-
Enforcement, Special Agent David Mizell of the Drug Enforcement Administration, and
laboratory chemists, would hinder prosecution of their case. Electronic monitoring of
conversations between Cutkomp and appellee, transcribed and entered into evidence
at the sentencing hearing, revealed that appellee made statements that indicated he
wanted to kill or otherwise prevent these witnesses from testifying against him and
Cutkomp.

        Appellee also talked about eluding the electronic monitoring devise he wore as
a condition of his pretrial release. He mentioned that his best alibi, should anything
happen to a witness, would be if he could make the monitor show he was home when
he was actually elsewhere. In addition, three of appellee's co-workers at Kraft Foods
testified that appellee approached them asking them to purchase a hand gun for him.
One co-worker purchased a gun for appellee, but appellee was rearrested before the
transfer could take place.

        After being rearrested, appellee was held in the Woodbury County Jail pending
trial. A fellow prisoner, Dean Donaldson, testified that at the jail appellee solicited him
to kill Cutkomp and intimidate Cobeen. Donaldson testified that appellee arranged for
his girlfriend, Kathy Rick, to post Donaldson's bail, which, according to the bonding
company's records, she did. Donaldson further testified that appellee gave him detailed
information about Cutkomp, including directions to and diagrams of Cutkomp's
residence, Cutkomp's work schedule and dates when Cutkomp was likely to wake up
early when it was still dark, even indicated places where Donaldson could hide at
Cutkomp's residence, and offered Donaldson a large sum of money to kill Cutkomp.
Appellee had Donaldson recopy this information so it would not appear in appellee's
handwriting. In addition, appellee gave Donaldson the address of Cobeen's father and
instructions about an intimidating note Donaldson should send there after he killed
Cutkomp. Donaldson did not carry out appellee's instructions, and after he informed
police about the plot, the police seized the documents he and appellee had drafted.
Donaldson was later rearrested and returned to the Woodbury Jail. He testified that

                                           -9-
when appellee saw him, appellee pointed his hand at Donaldson in the form of a gun
and called him a "snitch."

       Several witnesses testified that appellee attempted to break out of the Woodbury
Jail during his pretrial detention. Another fellow prisoner, Dennis Putzier, testified that
appellee asked him to break out of the jail and "get rid of" Cutkomp in return for
appellee "taking care of Putzier forever." Putzier attempted to break through the wall
to escape, but his efforts were thwarted by a reinforcement bar. Putzier testified that
appellee gave him an abrasive object appellee broke from the staircase to cut through
the bar and that appellee told him appellee's girlfriend would bring a hacksaw, rope,
and other tools to aid in the escape. In addition, several inmates testified that appellee
stated he was going to attempt to break through the wall of his cell so that appellee
could escape with Putzier. The Jailers found damage to the wall in appellee's cell.

       Dana Rasmussen, appellee's cell mate beginning in December 1996, testified that
appellee attempted to solicit him to kill appellee's childhood friend. When Rasmussen
refused, appellee concocted a plan to do a "drive-by" and shoot up the windows on the
friend's house to scare him. Appellee drew Rasmussen a map, which he made
Rasmussen recopy because appellee did not want it to appear in his handwriting.

       At the sentencing hearing, appellee accepted responsibility for the attempt to
manufacture methamphetamine, but denied his involvement with any obstruction of
justice, including the disappearances of Nicholson, the Duncans and DeGeus,
destroying the Tec-9 firearm with Cutkomp, masterminding the plot to kill or intimidate
Cobeen, posting bond for Donaldson in return for Donaldson killing Cutkomp, attempts
to break out of the Woodbury Jail, and hiding the hydrogen tank to prevent its
discovery by law enforcement.

                                     DISCUSSION


                                           -10-
                                             I.

      The government contends that the district court adopted an incorrect legal
standard for determining the presence of an "extraordinary case" in which a criminal
defendant who has obstructed justice may also receive a downward adjustment for
acceptance of responsibility. We review the district court's interpretation de novo. See
United States v. Wells, 127 F.3d 739, 744 (8th Cir. 1997); United States v. Drapeau,
121 F.3d 344, 347 (8th Cir. 1997).

       U.S.S.G. § 3E1.1(a) states that "if the defendant clearly demonstrates acceptance
of responsibility for his offense, decrease the offense level by 2 levels."4 Application
Note 4 to § 3E1.1 provides:


       Conduct resulting in an enhancement under § 3C1.1 (obstructing or
       impeding the administration of justice) ordinarily indicates that the
       defendant has not accepted responsibility for his criminal conduct. There
       may be, however, extraordinary cases in which adjustments under both
       §§ 3C1.1 and 3E1.1 may apply.




       4
         § 3E1.1(b)(2) provides that if the defendant qualified for a decrease under
subsection (a) then the court should decrease the offense level by an additional level
if the defendant timely notified authorities of his intention to enter a plea of guilty. The
application of that section is not at issue in this appeal.

                                           -11-
U.S.S.G. § 3E1.1, application note 4.5 The burden is on the defendant to establish that
he is entitled to a downward adjustment for the acceptance of responsibility. See
United States v. Janis, 71 F.3d 308, 310 (8th Cir. 1995) (quoting United States v.
Drapeau, 943 F.2d 27, 29 (8th Cir. 1991)).

       The district court appears to have adopted a bright line definition of an
"extraordinary case" in which a defendant who obstructs justice may also receive a
downward adjustment for acceptance of responsibility. Drawing upon language from
a decision of the Ninth Circuit in United States v. Hopper, 27 F.3d 378 (9th Cir. 1994),
the district court concluded that if a defendant who has obstructed justice pleads guilty
to the underlying offense with which he is charged (in this case, drug trafficking
offenses) and commits no further obstruction of justice between the guilty plea and the
sentencing hearing, then the district court must consider the case an "extraordinary" one
in which the defendant should receive a downward adjustment for acceptance of
responsibility. (Tr. 1291, 1256-57). Therefore, the district court having found no
obstruction by appellee after the date of his guilty plea concluded that the case was
"extraordinary" and awarded appellee a downward adjustment for acceptance of
responsibility based upon its reading of Hopper6 .


      5
         Commentary in the guidelines manual that interprets or explains a guideline is
authoratative unless it violates the Constitution or a federal statute, or is inconsistent
with, or a plainly erroneous reading of, that guideline. Stinson v. United States, 508
U.S. 36, 38 (1993). There has been no suggestion that application note 4 is an
erroneous construction of the acceptance of responsibility guidelines or that it is
otherwise inconsistent with law. Accordingly, application note 4 is binding on the
district courts and must be enforced according to its terms. See, e.g., United States v.
Mendoza-Figueroa, 65 F.3d 691, 693 (8th Cir. 1995) (en banc).
      6
        The district court also cited United States v. Talladino, 38 F.3d 1255 (1st Cir.
1994), in support of its interpretation of the guideline commentary. The Talladino case,
however addresses only whether the defendant qualified for an additional 1-level
reduction for acceptance of responsibility pursuant to a U.S.S.G. § 3E1.1(b), after

                                          -12-
       We hold that the district court's legal standard is inconsistent with the plain
language of the guideline commentary and the prior decisions of this court and other
courts of appeals. To determine whether a case is "extraordinary," the district court
should have taken into account the totality of the circumstances, including the nature
of the appellee's obstructive conduct and the degree of appellee's acceptance of
responsibility. Among other things, the district court should have considered whether,
for example, the obstruction of justice was an isolated incident early in the investigation
or an on-going effort to obstruct the prosecution. It should have considered whether
appellee voluntarily terminated his obstructive conduct, or whether the conduct was
stopped involuntarily by law enforcement. See United States v. Johnston, 973 F.2d
611, 614 (8th Cir. 1992); see also U.S.S.G. § 3E1.1, application note 1(d). The district
court should have noted whether appellee admitted and recanted his obstructive
conduct, or whether he denied obstruction of justice at sentencing. See U.S.S.G. §
3E1.1, application note 1(a). Moreover, in our opinion the district court should have
also weighed not only whether the defendant pleaded guilty to the underlying offense
but also whether he assisted in the investigation of his offense and the offenses of
others. See United States v. Dortch, 923 F.2d 629, 633 n.3 (8th Cir. 1991). We
observe and note that there is no magic formula for defining an "extraordinary case,"
but we hold it was error for the district court to hold as a matter of law that mere
cessation of obstructive conduct coupled with a guilty plea to the underlying offense
necessarily makes a case extraordinary for purposes of § 3E1.1, application note 4.

       Because the sentencing guidelines do not define the phrase "extraordinary case,"
in our opinion, the term should thus be given the ordinary meaning.7 See Chapman v.


receiving a 2-level decrease pursuant to § 3E1.1(a). See id. at 1263-66. The First
Circuit did not consider whether the district court properly found an "extraordinary
case" in which adjustments under both §§ 3C1.1 and 3E1.1(a) may apply.
      7
     The current version of § 3E1.1, application note 4 became effective on
November 1, 1989. Prior to November 1, 1989, the commentary provided that a

                                           -13-
United States, 500 U.S. 453, 454 (1991); United States v. Regans, 125 F.3d 685, 686
(8th Cir. 1997), cert. denied, 118 S. Ct. 1398 (1998); United States v. Waggoner, 103
F.3d 724, 726 (8th Cir. 1997). Webster's Dictionary defines "extraordinary" as "more
than ordinary," "going beyond what is usual, regular, common, or customary," or
"exceptional to a very marked extent." Webster's Third New International Dictionary,
807 (1993) (hereinafter "Webster's Dictionary"). Black's Law Dictionary similarly
defines "extraordinary" as "out of the ordinary," "exceeding the usual, average or
normal measure or degree," "remarkable," "uncommon," or "rare." Black's Law
Dictionary, 527 (5th ed. 1979).

       This meaning of "extraordinary" is consistent with the use of the phrase
"extraordinary case" in other sections of the sentencing guidelines. It should generally
be presumed that the same word used in different parts of the guidelines has the same
meaning. See United States v. Terry, 142 F.3d 702, 711-12 (4th Cir. 1998) (reviewing
other sections of guidelines to determine how the undefined term "victim" should be
interpreted); cf. Rutledge v. United States, 517 U.S. 292, 299-300 & n.10 (1996)
(where Congress used same phrase in other statutes, the same meaning is presumed in
statute under examination) (quoting Jeffers v. United States, 432 U.S. 137, 149 n.14
(1997) (plurality opinion)); Smith v. Sullivan, 982 F.2d 308, 314 (8th Cir. 1992)
("[g]enerally, when the same words are used in different section of the law, they will
be given the same meaning") (quoting Barnson v. United States, 816 F.2d 549, 554



downward adjustment for acceptance of responsibility was "not warranted" where the
defendant "obstructs the trial or the administration of justice." U.S.S.G. § 3E1.1,
application note 4 (November 1987); see United States v. Holland, 884 F.2d 354, 358
(8th Cir. 1989); United States v. Reynolds, 900 F.2d 1000, 1005 (7th Cir. 1990). The
commentary was amended in 1989 to provide for extraordinary cases in which
adjustment under both § 3C1.1 and § 3E1.1 are appropriate. See U.S.S.G. App. C
(Nov. 1997) (amendment 258). One court inferred that the change was adopted to
provide an incentive for defendants to recant and to make amends for obstructing
justice. See United States v. Dillon, 905 F.2d 1034, 1039 n.1 (7th Cir. 1990).

                                         -14-
(19th Cir. 1987)). The phrase "extraordinary case" appears in two other places in the
guideline manual: § 5K2.0 and § 2D1.1. The commentary to § 5K2.0 explains that the
commission "does not foreclose the possibility of an extraordinary case" in which
departure from the guidelines may be warranted based on a combination of factors,
"even though none of the characteristics or circumstances individually distinguishes the
case." U.S.S.G. § 5K2.0, commentary. The commentary does not further define
"extraordinary case," but the Commission specified that such a case would be
"extremely rare." Id. (emphasis added). § 2D1.1, application note 17 provides that
in an "extraordinary case" an upward departure may be warranted above offense level
38 based on the quantity of drugs involved in a drug trafficking case. The Sentencing
Commission's explanation sheds light on its intended meaning of "extraordinary case,"
as such a departure is suggested only where "the quantity is at least 10 times the
minimum quantity required for level 38." U.S.S.G. § 2D1.1, application note 17.
These examples confirm that when the Commission refers to an "extraordinary case,"
it means a situation that is extremely rare and highly exceptional. Thus the terms of
§ 3E1.1, application note 4 require an obstructive defendant to do more than merely
cease obstructive conduct and plead guilty to the underlying offense to earn a
downward adjustment for acceptance of responsibility.

       However, in our opinion, the district court's definition of an "extraordinary case"
is so broad that it swallows the "ordinary" case. Virtually every defendant who
receives an acceptance of responsibility adjustment enters a plea of guilty. The
guideline commentary explains that the adjustment "is not intended to apply to a
defendant who puts the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted and only then admits guilt and
expresses remorse. " U.S.S.G. § 3E1.1, application note 2. And virtually every
defendant who receives an acceptance of responsibility adjustment commits no
obstruction of justice between the guilty plea and the sentencing hearing, for post-plea
obstructive conduct would almost certainly be disqualifying. See e.g., United States
v. Nguyen, 52 F.3d 192 (8th Cir. 1995) (defendant committed an offense while released

                                          -15-
on bond after guilty plea); United States v. Loeb, 45 F.3d 719, 722 (2nd Cir. 1995)
(defendant failed to appear for sentencing); United States v. Merino, 44 F.3d 749, 755
(9th Cir. 1994) (defendant lied to probation officer to obstruct sentencing). Contrary
to the plain meaning of "extraordinary" the district court standard does not require the
obstructive defendant to do anything that is "more than ordinary," or to go "beyond
what is usual, regular, common, or customary" to earn an acceptance of responsibility
downward departure. Webster's Dictionary at 807.

       Furthermore, this court has previously indicated that a defendant must show
more than a guilty plea and a cessation of obstructive conduct to establish an
"extraordinary case" for purposes of § 3E1.1, application note 4. In United States v.
Dortch, 923 F.2d 629 (8th Cir. 1991), the defendant received an enhancement for
obstruction of justice because he tossed a bag of cocaine out of the window of his
vehicle during a traffic stop. Id. at 631-32. He argued that he should have received an
acceptance of responsibility reduction as well because "he voluntarily surrendered to
authorities, acquiesced in the forfeiture of his vehicle, cooperated with the probation
officer, withdrew his motion to suppress evidence and statements, and entered a plea
of guilty." Id. at 633. This court concluded that Dortch was not the kind of
extraordinary case in which both an increase for obstruction of justice and a reduction
for acceptance of responsibility would be warranted. Id. at 633 n.3. The court said
although the defendant "did plead guilty and cooperated with the authorities with
respect to his case . . . he also made false exculpatory statements at the time of [his]
arrest, justified his involvement with cocaine as a means of supporting his family, and
did not supply any information about others." Id.

       In United States v. Johnston, 973 F.2d 611 (8th Cir. 1992), this court again
upheld the district court's denial of an acceptance of responsibility reduction, even
though the defendant pled guilty and committed no obstruction of justice after the plea.
The court found that the defendant obstructed justice by destroying marijuana plants,
fleeing from Iowa, and attempting to procure a false alibi. See id. at 614. Although the

                                         -16-
defendant later pled guilty, this court affirmed the denial of an acceptance adjustment
based on the district court's finding that the acceptance of responsibility was "an
eleventh-hour jailhouse conversion and that [the defendant] did not voluntarily
terminate his criminal activity." Id.

       The district court's reliance upon the Hopper case is misplaced and its broad
reading has been rejected by other courts of appeals. In United States v. Hawley, 93
F.3d 682 (10th Cir. 1996), the Tenth Circuit held that a defendant who received an
obstruction adjustment for flight while on pretrial release was not entitled to an
adjustment for acceptance of responsibility. The court reached this conclusion even
though the defendant, upon his arrest for fleeing the jurisdiction, "immediately entered
into negotiations with the government to provide information concerning other criminal
activity and entered his plea of guilty." Id. at 689. The Tenth Circuit declined to
accept the defendant's argument, based upon Hopper, that "the conduct forming the
basis for the obstruction of justice enhancement ceased and was replaced by conduct
indicating a clear acceptance of responsibility." Id. The court emphasized that the
defendant's good conduct after his rearrest was not voluntary; law enforcement was
required to arrest the defendant and to return him to the jurisdiction. Notwithstanding
the defendant's subsequent guilty plea and cessation of obstructive conduct, the court
held that the defendant's violation of an appearance bond provided adequate foundation
for the district court's decision to deny an acceptance reduction. See id.

       Although neither the Second nor the Fifth Circuit cited to the Hopper case, both
appear to have rejected the broad principle arguably suggested by that Ninth Circuit
case. See United States v. Giwah, 84 F.3d 109, 113 (2d Cir. 1996) (specifically
rejecting the argument that the defendant's perjury should not preclude acceptance of
responsibility because it occurred long before the plea agreement.); United States v.
Ayala, 47 F.3d 688, 690-91 (5th Cir. 1995) (rejecting defendant's argument that he
should have received an acceptance of responsibility adjustment because he pleaded


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guilty promptly after being arrested on a fugitive warrant and because the government
agreed to recommend the adjustment as not an "extraordinary case" under § 3E1.1.)

       In addition our reading of the Hopper case shows that while the decision contains
the broad language seized upon by the district court, the circumstances of that case do
not support the rule it adopted. In Hopper, the Ninth Circuit opined that the relevant
inquiry for determining if a case is an extraordinary one according to application note
4 is "whether the defendant's obstructive conduct is not inconsistent with his acceptance
of responsibility." Hopper, 27 F.3d at 383. The Ninth Circuit said those cases in which
"obstruction is not inconsistent with an acceptance of responsibility arise when a
defendant, although initially attempting to conceal the crime, eventually accepts
responsibility for the crime and abandons all attempts to obstruct justice." Id. In other
words, the Ninth Circuit held that an extraordinary case within the meaning of
application note 4 is one where a defendant's acceptance of responsibility is not
contradicted by an ongoing attempt to obstruct justice, therefore permitting
simultaneous adjustments under §§ 3C1.1 and 3E1.1.

        In our opinion, the facts in Hopper support a much narrower conclusion. The
defendant in that case received an adjustment for obstruction of justice because he
burned evidence and attempted to buy false alibis after hearing that an accomplice in
a robbery (his father) was arrested. See id. at 381. After the obstructive conduct, the
defendant did more than merely plead guilty and cease obstruction of justice, he signed
a plea agreement in which he expressly admitted the obstructive conduct, confessed
guilt, and disclosed information about the crime. See id. The defendant's obstructive
conduct occurred soon after he discovered his father had been arrested, and although
the conduct persisted for a few days, it was not a methodical, continued effort to
obstruct justice. Hence, Hopper does not necessarily dictate that a defendant who
engaged in a methodical, continued effort to obstruct justice or who refused to admit
his obstructive conduct would receive an adjustment for acceptance of responsibility
even in the Ninth Circuit.

                                          -18-
        The standard applied by the district court here is simply inconsistent with the
plain meaning of the guideline commentary and the prior decisions of this court
discussed above. See, e.g., Johnston, 973 F.2d at 614; Dortch, 923 F.2d at 632-32.
Not every defendant can present an extraordinary case deserving of acceptance of
responsibility merely by pleading guilty and ceasing to obstruct justice. In our opinion,
and we so hold, the district court must inquire into the particular circumstances of the
defendant's case: was the defendant's obstructive conduct a relatively brief or early
aberration, or was it a methodical, continued effort to obstruct justice? We hold that
the mere fact of the guilty plea to the underlying offense, followed by an absence of
post-plea obstructive conduct is not by itself sufficient to establish an extraordinary
case as a matter of law; therefore, we also hold that the district court erred in granting
appellee an adjustment for acceptance of responsibility. Note what the district court
itself said:

      I'll help you out on your appeal. If that is the law, that you balance the
      degree of obstruction in determining whether or not post-plea cessation
      of obstruction of justice qualify for acceptance of responsibility. I would
      not give acceptance of responsibility in this case. But I don't read Hopper
      as saying that, and I don't think there's enough guidance – I am not being
      critical of the circuit. I just don't think that they have had an opportunity
      to expouse their views on it. And if you do weigh the obstruction on the
      one hand and acceptance on the other, this case would not qualify for
      acceptance of responsibility in my view. So if I give it, that will make
      your job easier on appeal, if that's the law.

(Tr. 1256).

      This record clearly supports the district court's conclusion that appellee's bid for
acceptance of responsibility adjustment fails when considered in light of all of the
circumstances. Appellee pursued obstruction of justice in a purposeful and methodical
way that even the Ninth Circuit has said is inconsistent with the acceptance of
responsibility. See Hopper, 27 F.3d at 383 (citing United States v. Lato, 934 F.2d

                                          -19-
1080, 1083 (9th Cir. 1981)). Although it is true that the district court did not make any
alternative findings on obstruction of justice, its comments concerning acceptance of
responsibility and its statement that testimony about obstruction would be another basis
to sentence appellee at the top of the guideline range, indicate to us that the court
recognized this was not a typical obstruction case.
       As in Hawley, 93 F.3d at 689, and Johnston, 973 F.2d at 614, appellee's
cessation of obstruction can hardly be considered voluntary. See U.S.S.G. § 3E1.1,
comment note 1(b). Here, appellee was arrested and detained after the government and
the court learned of his efforts to avoid electronic monitoring and to kill witness
Cobeen while on pre-trial release. Then while detained, appellee attempted to kill
witness Cutkomp, intimidate witness Cobeen, and escape from the jail. Only after his
extended efforts at obstruction had failed, and the trial date approached, did appellee
agree to plead guilty.

     We note that any acceptance of responsibility demonstrated by appellee was
minimal. Unlike the defendant in Hopper, appellee refused to admit his obstructive
conduct. See Hopper, 27 F.3d at 383. Likewise, Appellee disclosed little information
about his criminal activities. At the sentencing hearing, appellee specifically denied
each basis for an obstruction of justice adjustment that was advanced by the
government (Tr. 1068), including the concealment of the hydrogen tank that the district
court specifically found to be true. See U.S.S.G. § 3E1.1, application note 1(a)
("defendant who falsely denies . . . relevant conduct that the court determines to be true
has acted in a manner inconsistent with acceptance of responsibility").

       We believe that this case is extraordinary only by virtue of the extensive
evidence gathered and presented concerning the defendant's continuing efforts to
obstruct justice. Furthermore, it is not one of the rare extraordinary cases in which a
defendant who has obstructed justice nonetheless earns, by his other positive actions,
an adjustment for acceptance of responsibility. We note that a reasonable finder of fact
could easily conclude from witnesses’ testimony that appellee caused the disappearance

                                          -20-
of one or more persons, including prospective prosecution witnesses, in 1993;
attempted to kill witnesses while on pre-trial release in 1996; attempted to kill another
cooperating witness whose cooperation had resulted in his detention in June 1996;
attempted to escape from a county jail during the period of pre-trial detention; and
finally, procured another person to conceal material evidence. This is conduct that
strikes at the very heart of the administration of justice.

                                           II.

       Finally, appellee Honken in his cross appeal has raised three issues: First, that
the court erred in granting a 2-level upward adjustment for obstruction of justice in
relation to the alleged attempt to conceal the hydrogen tank; second, that the district
court erred in finding that a five-gallon can seized from appellee's residence was full
of toluene when the government neither measured nor tested the can's contents; and
finally, that the district court violated his due process rights by approving the
government's alleged attempt to manipulate appellee's sentence by enlarging the scale
of his crime.

       After a careful review of the record and the parties' briefs, we conclude that the
district court in its rulings neither abused its discretion nor was clearly erroneous.
Consequently, we affirm the cross appeal.

       Accordingly, we reverse and remand the district court's judgment with directions
to the district court to resentence appellee without a reduction in the offense level for
acceptance of responsibility, and affirm the cross appeal.




                                          -21-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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