dissenting.
Because I have a fundamental disagreement with the majority’s analysis, I must respectfully dissent.
I first address the majority’s determination that the district court’s decision to enhance Perry’s sentence for attempting to obstruct justice by growing the beard and the six month sentence for contempt which resulted from Perry’s refusal to obey the court’s order to shave, impermissibly double counted Perry’s conduct in growing the beard. The majority appears to rely on alternate rationales to support its determination that the above punishments impermissi-bly double count Perry’s conduct; unfortunately, I cannot agree with either.
First, in their initial discussion of this issue, the majority has chosen to blur the distinction between the two separate conducts and, instead, relies upon the conclusion that, “[t]o draw a distinction between the growing of the beard and the refusal to shave as justifying separate and cumulative punishments overlooks the fact that it was simply Perry’s appearance at trial wearing a beard that resulted in the punishment.” Majority Op. at 710. Thus, in this section of their analysis, the majority appears to reject Perry’s contention that he engaged in a single conduct, concluding instead that it was simply Perry’s appearance at trial which precipitated the imposition of both the obstruction enhancement and the sentence for contempt; and, that this somehow makes it unfair for Perry to have received both the enhancement for obstruction and the sentence for contempt. However, the record does not support this analysis.
At the resentencing, the district court did not conclude that the enhancement was applicable solely because Perry appeared at trial still wearing the beard; instead, the district court concluded that the enhancement was applicable because Perry’s decision to grow the beard
affected the prosecution; definitely affected the investigation of the case when the defendant grows a beard subsequent to the commission of the offense. And regardless of whether he obeyed my Order to shave or not, which is another matter, the fact is, that he grew the beard in an attempt to hinder the prosecution, to make it difficult to identify him.
Thus, the majority’s conclusion that the obstruction enhancement was imposed “based on a finding that Perry intended to impede the administration of justice by appearing at trial with a beard” is not borne out by the record. The district court imposed the obstruction enhancement because it affects the investigation of an offense, in which identity is an issue, when the defendant grows a beard in order to hamper efforts to identify him. As a result, I also cannot agree with the majority’s assertion *713that, “[w]hether Perry grew a beard in advance of trial would have been wholly irrelevant if he had shaved it prior to trial, pursuant to court order or not.” Maj. Op. at 710. The essence of the obstruction was Perry’s attempt to obstruct justice by growing the beard in the first instance. If Perry had shaved the beard off five minutes before trial, he still would have been eligible for the enhancement based on his attempt to obstruct the investigation of the case. It is irrelevant to the resolution of this appeal that the district court might not have chosen to apply the enhancement if Perry had in fact removed the beard immediately prior to the trial. The district court specifically found that Perry’s growing of the beard impeded the prosecution and investigation of this case, and we cannot conclude that these findings are clearly erroneous.
In addition, the district court’s decision to hold Perry in contempt for failing to shave the beard when ordered to do so is completely independent of its determination that Perry attempted to obstruct justice by growing the beard in the first place. If Perry had chosen to remove the beard prior to arriving at trial, he would have complied with the district court’s order and would therefore not have been eligible for the contempt sentence; however, as stated above, he would nevertheless have been eligible for the obstruction enhancement, whether or not the district court actually chose to impose it.
Despite initially giving short shrift to the question of whether Perry engaged in two conducts, later in their opinion, the majority specifically concludes that Perry engaged in only one conduct. Maj. Op. at 712. In support of this conclusion, the majority asserts that the situation presented in United States v. Williams, 922 F.2d 737 (11th Cir.) cert. denied, — U.S. -, 112 S.Ct. 258, 116 L.Ed.2d 212 (1991), is “identical” to the one at hand. However, a close reading of the court’s decision in Williams reveals the error of that position. The defendant in Williams refused to testify in a co-conspirator’s trial after the government obtained an immunity order compelling him to do so. Based on his refusal to testify, the district court found him guilty of criminal contempt and sentenced him to six months in prison. In addition, when Williams was sentenced for his own convictions the district court concluded that the same refusal to testify also constituted obstruction of justice justifying an increase in Williams’s offense level by two points. Thus, the defendant in Williams was in fact punished twice for the one conduct of failing to testify at his co-conspirator’s trial.
In the present case, however, Perry committed two separate and distinct acts, each of which made him eligible for penalty. First, after his arrest, Perry grew a beard. The district court explicitly determined that Perry grew the beard in order to “hinder the prosecution, to make it difficult to identify him.” As noted above, we cannot say that this finding is clearly erroneous; therefore, under these facts, the growing of the beard was an attempt to obstruct justice. Contrast this situation to one in which, for example, a criminal defendant, after committing the crime, is involved in a serious áccident which scars or disfigures his features. The defendant may be self-conscious about the scars and choose to grow a beard to cover them. Because the essence of an obstruction enhancement is the intent to obstruct, the growing of the beard for some other reason would not be an action for which an enhancement for obstruction of justice is appropriate. But in the case before us now, Perry grew the beard in order to prevent his being identified as the person who robbed the branch of the Pikeville National Bank. This action clearly constituted an act designed to obstruct the investigation or prosecution of a criminal offense.
Prior to the trial, the district court became aware that Perry had grown the beard and ordered him to shave. Nevertheless, Perry appeared at trial still wearing the beard. The district court then held Perry in contempt for failing to obey his order to shave. Perry’s refusal to shave was thus a second and completely distinct action from his initial decision to grow the beard to complicate or hinder identification. Looking again at the facts in Williams, it is clear how these two situations differ and why the majority’s reb-anee on that case is erroneous. In Williams the defendant simply refused to testify at a co-conspirator’s trial. This is one action. On the basis of that one action, he was sentenced both for contempt and obstruction of justice. *714If the district court had preemptively ordered Perry not to grow a beard, and Perry had nonetheless done so and then the district court had enhanced Perry’s sentence for obstruction and also held him in contempt, then the majority’s analysis would be correct and this case would be “identical” to the situation in Williams. However, these are not the facts in this case and Williams does not control.
I would hold that the district court was correct. Perry grew the beard in an attempt to obstruct justice. In addition, Perry disobeyed the district court’s order to shave the beard. This second action is separate and distinct from the first.
Because the two conducts are distinct, I am compelled to disagree with the majority’s ultimate determination that Perry is entitled to be sentenced without the two level enhancement for obstruction of justice. It was proper for the district court to impose the six month sentence on Perry for his conviction for contempt; and, it was also proper for the district court, at sentencing, to enhance Perry’s offense level by two for attempting to obstruct justice by growing the beard. Thus, I would affirm the district court’s sentence in its entirety.