dissenting.
I agree with the majority that the conviction should be affirmed. However, I would remand on the issue of the two level enhancement for obstruction of justice. The central question is whether there is sufficient reliable evidence to support a finding of obstruction under the U.S.S.G. § 301.1(e).
At the outset, I believe that the position taken by the majority may be technically correct. The defense counsel had the opportunity to offer additional evidence or challenge the admission of the probation officer’s testimony but did not do so. He merely argued that the incident could be interpreted differently. Therefore, since the probation officer offered the only evidence, the district judge could come to the conclusion that McGill was in fact trying to escape.
However, as stated by the majority, the evidence presented must be reliable. United States v. Johnson, 997 F.2d 248 (7th Cir.1993). The circumstances here are so extraordinary that the reliability of the evidence is immediately called into question. If we assume that the appellant was mentally competent, it is very difficult to conclude that he or any other reasonable person could believe that he had any chance to escape from the federal holding center by pushing ceiling tiles out of his cell.
Other circuit courts have ruled that in order to warrant a § 3C1.1 enhancement, the guidelines require that the defendant “consciously act with the purpose of obstructing justice.” United States v. Stroud, 893 F.2d 504, 507 (2d Cir.1990); see also United States v. Draper, 996 F.2d 982 (9th Cir.1993). Although the word “willfully” was deleted from the title of § 3C1.1 in November 1992, after Stroud and Draper were decided, the body of the section still reads:
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.
U.S.S.G. § 301.1(e) at 247 (11/1/92) & App.C. at 163 (emphasis added). Therefore, the district court must still determine whether the mens rea requirement has been met before enhancing the defendant’s sentence under this section. In the present case, the court did not have enough evidence before it to determine whether the defendant willfully attempted to obstruct or impede justice. On the contrary, the court was notified that McGill was given psychological tests after the incident occurred. App. at 4. Although he was judged mentally competent to stand trial, the very fact that testing was found necessary should have alerted the court that further inquiry was needed to determine why McGill acted the way he did in his cell on September 4.
The majority correctly states that the district court’s factual determinations at sentencing must be reviewed pursuant to 18 U.S.C. § 3742(e), which provides that the Court of Appeals shall give due regard to the opportunity of the district court judge the credibility of the witnesses and shall accept findings of fact unless clearly erroneous. Moreover, the district court may consider hearsay evidence at sentencing proceedings. Fed.R.Evid. 1101(d)(3).
*1147In this case, the district judge relied solely upon the report of the probation officer. The report of the inmate system officer who observed the event was not admitted nor was he produced as a witness. The district judge was surprised to learn for the first time in the presentence report that McGill had undergone a psychiatric examination prior to trial to determine his mental competency. The district judge apparently never looked at the psychiatrist’s report. In light of the irrational nature of McGill’s activities in his holding cell, the minimal hearsay evidence offered by the government to show appellant’s willful obstruction of justice must be deemed inadequate for such a finding even though defense counsel did not take the opportunity to which he was entitled to rebut the contested hearsay by calling the guard or presenting other evidence in support of an alternative explanation. Even under the clearly erroneous standard, which gives the district court considerable discretion in reaching a conclusion based on the facts at its disposal, this court should find the sole evidence presented to the district court unreliable and remand for a further hearing on whether the activities by the inmate system officer constituted willful obstruction of justice.