United States v. Maccado, Nigel

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2000 Decided October 4, 2000

No. 99-3101

United States of America,
Appellee

v.

Nigel Judson Maccado,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 98cr00162-01)

Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the brief was A.
J. Kramer, Federal Public Defender.

Luis Andrew Lopez, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher, Thomas J. Tourish,
Jr., and Alan Boyd, Assistant U.S. Attorneys.

 Before: Williams, Sentelle and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Concurring opinion filed by Circuit Judge Williams.

Rogers, Circuit Judge: Nigel Judson Maccado appeals his
conviction on the ground that the district court misapplied
United States Sentencing Guidelines ("U.S.S.G.") s 3C1.1
(1995) by enhancing his sentence by two levels for obstruction
of justice in the absence of a substantial effect on the
investigation or prosecution of his case. He contends that the
enhancement is unwarranted for his failure timely to comply
with the court's order to give a handwriting exemplar for
essentially two reasons. First, the nineteen-day delay in the
taking of his handwriting exemplar that resulted from his
noncompliance did not delay or otherwise hinder the sched-
uled judicial proceedings, and second, his guilty plea cured
any obstruction. We hold that s 3C1.1 applies in the absence
of a substantial effect on an investigation or prosecution, and
accord due deference to the district court's determination that
Maccado's deliberate disobedience of the court order warrant-
ed an enhancement under s 3C1.1. Accordingly, we affirm.

I.

Maccado was indicted in 1998 for possession of false identi-
fication documents with intent to defraud the United States
and for making false statements in a passport application.
See 18 U.S.C. ss 1028(a)(4), 1542. He ultimately pleaded
guilty on August 17, 1998, to the false statements charge.
According to the government's proffer at the time Maccado
pleaded guilty, the charges stemmed from his submission on
September 11, 1997, of a completed United States Passport
Application (Form DSP-11) in the name of David Arnar
Proctor, born December 17, 1957, in Washington, D.C. Mac-
cado listed his social security number as XXX-XX-XXXX and
presented as proof of citizenship a District of Columbia
certificate with a recorded date of birth, as well as an
employee identification card from his own construction com-
pany. He signed the form in the presence of the clerk at the

Friendship Heights Post Office, who accepted the application
on behalf of the Department of State. Several months later,
Special Agent Leonard Codispot of the United States Depart-
ment of State Bureau of Diplomatic Security obtained an
arrest photograph of Maccado from the Montgomery County,
Maryland, police records that matched the photo attached to
the passport application. Agent Codispot also determined
from the United States Immigration and Naturalization Ser-
vice that Maccado was born in India in 1949, and was not a
United States citizen and not entitled to a United States
passport.

At a status hearing on Thursday, June 18, 1998, in contem-
plation of trial, the district court granted the government's
motion to compel Maccado to submit a handwriting exemplar
that day to Agent Codispot, who was present in the court-
room. When asked by the court if he understood the court's
order, Maccado replied, "Yes, your Honor." Nevertheless,
Maccado did not give the exemplar to the agent that day and
had no further personal contact with the agent until July 7,
1998, when Agent Codispot obtained the exemplar from Mac-
cado in Maryland. At that time Maccado was in the Charles
County Detention Center in LaPlata, Maryland.1

At Maccado's sentencing hearing, Agent Codispot testified
that after the June 18th status hearing, he accompanied
Maccado and his wife to the first floor of the courthouse.
Agent Codispot told Maccado to wait while he obtained a copy
of the court order, and that the exemplar would be taken in a
vacant room in the courthouse. When Agent Codispot re-
turned minutes later, Maccado was gone; his wife explained
that Maccado had left to move the car. After waiting for over
an hour for Maccado to return, Agent Codispot returned to
his office and found a message from Maccado that his car had
overheated and he had left it at his wife's office, that he had

__________
1 Two days after the status hearing at which he was ordered to
provide the exemplar to Agent Codispot, Maccado attempted sui-
cide. He was hospitalized and thereafter transferred to the Charles
County Detention Center based on a Maryland warrant for a parole
violation.

gone to visit a cousin in the hospital, and that he would do the
"court-ordered things" at another time. Agent Codispot
twice attempted unsuccessfully to reach Maccado at the pager
number that Maccado had left as part of his recorded mes-
sage.

Maccado's wife recounted somewhat different events. She
testified that after the status hearing Agent Codispot in-
formed them the exemplar would be taken at an office in
Virginia, and that Maccado left the courthouse to retrieve the
car so they could follow the agent to Virginia. Upon re-
turning to her office later that day, Mrs. Maccado found a
message from her husband explaining that he had encoun-
tered car problems and another message from her cousin's
wife stating that Maccado had been to the hospital to get
water for the car. Upon returning home around 4:30 p.m.,
Mrs. Maccado found her husband at home. She telephoned a
mechanic and dropped the car off that night, leaving a
message for the mechanic about the problem. She also
telephoned Agent Codispot, leaving a message about resched-
uling the taking of the exemplars.

At sentencing, the district court found:

that there has been obstruction of justice; that the
obstruction of justice occurred when, notwithstanding a
court order to go with the FBI agent [sic] to give a
handwriting exemplar, and it's clear from the transcript
that I told the defendant that he had to go with that
agent that day to provide a handwriting exemplar, not-
withstanding that, he didn't, and he hasn't offered any
plausible explanation or reason why he didn't.

I mean, I think that if I were to credit his testimony
that he had to take his car to get it fixed, it's not a
mitigating circumstance to offset the failure to comply
with the court directive to have that handwriting exemp-
lar provided that day, and his failure to do so rises to the
level of an obstruction of justice.

After applying the two-level enhancement under U.S.S.G.
s 3C1.1 and crediting Maccado for acceptance of responsibili-

ty, id. s 3E1.1, which resulted in a sentencing range of 12 to
18 months, the court sentenced Maccado to 18 months' incar-
ceration and three years' supervised release.

II.

On appeal, Maccado contends that mere disobedience of a
court order is insufficient to constitute obstruction of justice
under U.S.S.G. s 3C1.1 where the ordered evidence is pro-
duced within a relatively brief time prior to any scheduled
court hearing and, thus, does not substantially influence the
investigation or prosecution. Combined with his guilty plea
to one count, that he maintains effectively cured any prior
obstructive conduct, Maccado contends that the district
court's application of U.S.S.G. s 3C1.1 involved an erroneous
interpretation of law that is subject to de novo review.

As to our standard of review, we agree with Maccado.
Maccado does not challenge the district court's findings that
his conduct was unjustified, or that he materially breached
the district court's order. Nor does he claim that he had a
necessity defense or that his actions were not willful. Conse-
quently, the only issue presented on appeal is whether
s 3C1.1 requires that a defendant's conduct have a substan-
tial effect on the investigation or prosecution of his case, and
if so, whether a guilty plea negates the obstruction of justice.
These are questions of law that the court reviews de novo.
See United States v. (Michael) Taylor, 997 F.2d 1551, 1560
(D.C. Cir. 1993). Upon determining whether there is a
substantial effect requirement in s 3C1.1, the court must
accord due deference to the district court's factual determina-
tion that the defendant's conduct is within the range of
punishable actions. See In re Sealed Case, 199 F.3d 488, 491
(D.C. Cir. 1999); 18 U.S.C. s 3742(e); see also United States
v. Drew, 200 F.3d 871, 880 (D.C. Cir. 2000).

The relevant version of s 3C1.1 of the Sentencing Guide-
lines instructs that:

[i]f the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice during the course of the investigation, prosecu-

 tion, or sentencing of the instance offense, increase the
offense level by 2 levels.

U.S.S.G. s 3C1.1 (1995).2 In the Application Notes to the
Guidelines, which the court must treat as authoritative, see
Stinson v. United States, 508 U.S. 36, 38 (1993), the Sentenc-
ing Commission has included two non-exhaustive lists of
examples to illustrate some of the kinds of conduct that do
and do not fall within s 3C1.1. See Application Notes 3 & 4.
None of the examples is precisely on point. By way of
caveat, Application Note 2 states that "[o]bstructive conduct
can vary widely in nature, degree of planning, and serious-
ness . . . [and] is not subject to precise definition." Applica-
tion Note 3 gives as examples of when the enhancement is
properly imposed "committing, suborning, or attempting to
suborn perjury; . . . escaping or attempting to escape from
custody before trial or sentencing; or willfully failing to
appear, as ordered, for a judicial proceeding; . . . [or] provid-
ing materially false information to a judge or magistrate."
U.S.S.G. s 3C1.1, Application Note 3(b), (e), (f).3 On the

__________
2 The district court sentenced Maccado under the 1995 edition
of the Sentencing Guidelines, and we refer to that edition. Macca-
do's offense occurred in September 1997, and the relevant guideline
was modified in November 1997.

3 Application Note 3 lists the following examples:

(a) threatening, intimidating, or otherwise unlawfully influ-
encing a co-defendant, witness, or juror, directly or indirectly,
or attempting to do so;

(b) committing, suborning, or attempting to suborn perjury;

(c) producing or attempting to produce a false, altered, or
counterfeit document or record during an official investigation
or judicial proceeding;

(d) destroying or concealing or directing or procuring anoth-
er person to destroy or conceal evidence that is material to an
official investigation or judicial proceeding (e.g., shredding a
document or destroying ledgers upon learning that an official
investigation has commenced or is about to commence), or
attempting to do so; however, if such conduct occurred contem-
poraneously with arrest (e.g., attempting to swallow or throw
away a controlled substance), it shall not, standing alone, be

other hand, examples of acts that do not qualify for punish-
ment under s 3C1.1 include "providing incomplete or mis-
leading information, not amounting to a material falsehood, in
respect to a presentence investigation; ... [and] avoiding or
fleeing from arrest." Id., Application Note 4(c), (d).4

By providing non-exhaustive illustrations, the Sentencing
Commission has left considerable discretion in applying
s 3C1.1 to the sentencing court. In view of the variety of
situations that might constitute obstruction of justice, the
Commission necessarily relied on the district court's reasoned
exercise of discretion in applying s 3C1.1 to particular fact
patterns. The question, therefore, is how the threshold for
applying s 3C1.1 is to be defined. Efforts by the circuit
courts of appeal to identify that threshold have not been
__________
sufficient to warrant an adjustment for obstruction unless it
resulted in a material hindrance to the official investigation or
prosecution of the instant offense or the sentencing of the
offender;
(e) escaping or attempting to escape from custody before
trial or sentencing; or willfully failing to appear, as ordered,
for a judicial proceeding;

(f) providing materially false information to a judge or mag-
istrate;

(g) providing a materially false statement to a law enforce-
ment officer that significantly obstructed or impeded the offi-
cial investigation or prosecution of the instant offense;

(h) providing materially false information to a probation
officer in respect to a presentence or other investigation for the
court;

(i) conduct prohibited by 18 U.S.C. ss 1501-1516.

4 Application Note 4 lists the following examples:

(a) providing a false name or identification document at
arrest, except where such conduct actually resulted in a signifi-
cant hindrance to the investigation or prosecution of the instant
offense;
(b) making false statements, not under oath, to law enforce-
ment officers, unless Application Note 3(g) above applies;
(c) providing incomplete or misleading information, not
amounting to a material falsehood, in respect to a presentence
investigation;
(d) avoiding or fleeing from arrest (see, however, s 3C1.2
(Reckless Endangerment During Flight)).

particularly successful in view of the breadth of the text of
s 3C1.1.

For example, the Fifth Circuit has derived two general
principles from the commentary's lists based on two factors
that it has presumably distilled from the commentary. The
two factors are: "(1) whether the conduct 'presents an inher-
ently high risk that justice will be obstructed;' and (2)
whether the conduct 'requires a significant amount of plan-
ning,' as opposed to being 'the result of a spur of the moment
decision' or 'stem[ming] from merely panic, confusion, or
mistake.' " United States v. Phillips, 210 F.3d 345, 348 (5th
Cir. 2000) (quoting United States v. Greer, 158 F.3d 228, 235
(5th Cir. 1998)). A classification relying on this distinction,
articulated in United States v. Draves, 103 F.3d 1328, 1337
(7th Cir. 1997), as the difference between "panicked, instinc-
tive flight" and "calculated evasion," appears to place the
threshold higher than the Commission's language and listings
suggest, because the list of sanctionable conduct in Applica-
tion Note 3 includes actions that do not seem to require much
planning.5

The circuits, however, have had little problem imposing
s 3C1.1 enhancements when a defendant refused to cooperate
with an order to provide a handwriting exemplar. See United
States v. Brazel, 102 F.3d 1120 (11th Cir. 1997); United States
v. (David) Taylor, 88 F.3d 938 (11th Cir. 1996); United States
v. Ruth, 65 F.3d 599 (7th Cir. 1995); United States v. Reyes,
908 F.2d 281 (8th Cir. 1990). As the Second Circuit observed
in United States v. Valdez, 16 F.3d 1324 (2d Cir. 1994), "there
are few better examples of a classic obstruction of justice
than a defendant who refuses to give handwriting samples
when compelled by subpoena [to do so]." Id. at 1335. It is
true that these cases involved defendants who either refused
to provide exemplars and never supplied them, or repeatedly
refused and then belatedly provided the handwriting samples.
Still, there is no suggestion that more than a single act
without additional obstreperous, deliberate, or disruptive con-

__________
5 Our concurring colleague refines the Fifth Circuit's analysis
slightly. See concurring opinion at 4.

duct is required under s 3C1.1, much less that a meaningful
distinction exists between never submitting an exemplar and
submitting one late. As the Seventh Circuit has observed,
the guideline is concerned with the effect of potentially ob-
structive conduct rather than formal definitions. Cf. United
States v. Harrison, 42 F.3d 427, 431 (7th Cir. 1994).

Other circuit cases emphasize the obstructive nature of
avoiding full compliance with an order to provide an exemp-
lar. Both the Second and Seventh Circuits have affirmed
s 3C1.1 enhancements when a defendant disguised a hand-
writing exemplar that was to be compared with writings to be
introduced at trial. See United States v. Yusufu, 63 F.3d 505,
514-15 (7th Cir. 1995); Valdez, 16 F.3d at 1335-36. As in the
instant case, the exemplars sought in Yusufu and Valdez
were for comparison with writing that was to be introduced at
trial. See Yusufu, 63 F.3d at 514; Valdez, 16 F.3d at 1335.
Furthermore, in United States v. Ruth, 65 F.3d 599 (7th Cir.
1995), the Seventh Circuit affirmed a s 3C1.1 enhancement
based on a pretrial finding of contempt for two refusals to
provide a handwriting exemplar, even though the government
"eventually found another way to prove its case and did not
try a third time to take the handwriting exemplars." Id. at
606.

In addition, a series of cases have applied s 3C1.1 to out-of-
court conduct that is analogous to the type of conduct at
issue. The Second Circuit in United States v. Defeo, 36 F.2d
272, 276 (2d Cir. 1994), affirmed enhancement under s 3C1.1
for a "four-month failure to report to pretrial services." The
Ninth Circuit in United States v. Draper, 996 F.2d 982 (9th
Cir. 1993), affirmed enhancement under s 3C1.1 for failure to
report to a community corrections center during pre-trial
release, rejecting both the view that a "significant disruption"
was required and the view that "a two week absence is not
sufficient to warrant the obstruction adjustment." Id. at 984-
87.

The line of authority applying s 3C1.1 to handwriting
exemplars and out-of-court conduct is persuasive for three
reasons: the Commission has (1) used broad language in

s 3C1.1; (2) included egregious as well as non-egregious
conduct in its list of acts that warrant a sentencing enhance-
ment; and (3) determined that for most of the listed conduct
sanctionable under s 3C1.1, actual hindrance is an irrelevant
consideration. By contrast, our concurring colleague's inter-
pretation does not adequately explain either the language of
s 3C1.1 or the two lists in the commentary. The Commission
not only included attempts in s 3C1.1 but stated that "willful-
ly failing to appear, as ordered, for a judicial proceeding" is
punishable under s 3C1.1 without actual hindrance, even
though such failures do not seem necessarily to have a high
risk of materially impeding the criminal justice process and
might encompass spontaneous conduct. In (Michael) Taylor,
997 F.2d at 1559-60, the court, in rejecting a specific mens
rea requirement, upheld a s 3C1.1 enhancement for obstruc-
tion where the defendant failed to return to the courtroom
before the jury returned its verdict, even though defense
counsel waived his presence and the proceedings continued.
The viability of our concurring colleague's distinction cannot
rest on the fact (Michael) Taylor involved a "judicial proceed-
ing" rather than an "ancillary process," see infra concurring
opinion at 4, for the obstruction that occurred in both cases
was adverse to the court's process.

Accordingly, we hold that a s 3C1.1 enhancement can be
based on a defendant's failure to comply with a court order to
provide a handwriting exemplar in connection with the under-
lying pending charges regardless of whether the failure has a
substantial effect on the investigation or prosecution. A
defendant's failure to provide the ordered exemplar clearly
has the potential to weaken the government's case, prolong
the pendency of the charges, and encumber the court's docket
with an unnecessary trial. The two circumstances on which
Maccado relies are unavailing. Whether or not the scheduled
judicial proceedings are postponed is not dispositive, see
Defeo, 36 F.3d at 276-77; those proceedings might occur as
scheduled, but without a defendant's exemplar or adequate
time to evaluate or reach a plea agreement, the course of the
proceeding could be very different. The fact that a defendant
ultimately enters a guilty plea to some of the charges cannot

be dispositive; until the district court has accepted the plea,
see Fed. R. Crim. P. Rule 12, anything could happen. See,
e.g., supra n.1. Moreover, the conclusion that a plea could
erase an actual obstruction of justice would be inconsistent
with s 3C1.1's inclusion of attempts. Each of these circum-
stances, in other words, fails to eliminate the concern about
the potential effect of the defendant's conduct that the guide-
line is addressing.6 While we do not adopt a per se rule for
handwriting exemplars, for the Commission's reference in
Application Note 2 to the "degree of planning" and "serious-
ness" of the obstructive conduct are relevant factors for the
district court to consider in deciding whether a s 3C1.1
enhancement is warranted, we reject a heightened threshold
requiring conduct that has a substantial effect on the investi-
gation or prosecution. It remains for the district court to
determine whether a defendant has offered a sufficient reason
for failing to comply with the court order as would make
application of the guideline inappropriate. As stated in Unit-
ed States v. Baker, 641 F.2d 1311 (9th Cir. 1981), "criminal
contempt requires a contemnor to know of an order and
willfully disobey it. . . . A good faith effort to comply with
the order is a defense, although delaying tactics or indiffer-
ence to the order are not." Id. at 1317 (citations omitted).

Having concluded that the threshold for application of
s 3C1.1 does not bar enhancement for failing to comply with
a court order in the absence of a substantial effect, the
remaining question is whether the district court's findings
were in some manner lacking. We find no clear error. See
generally United States v. Saro, 24 F.3d 283, 286 (D.C. Cir.

__________
6 The cases on which Maccado relies are distinguishable for the
reason that the Application Notes require that the giving of false
identification information to authorities actually hinder the investi-
gation or prosecution of the case. See United States v. Manning,
955 F.2d 770 (1st Cir. 1992); United States v. Robinson, 978 F.2d
1554 (10th Cir 1992). Likewise, Maccado's reliance on United States
v. Tabares, 951 F.2d 405 (1st Cir. 1991), is misplaced; the materiali-
ty of Maccado's handwriting exemplar, which was relevant to the
prosecution of his case, is undisputed. See United States v. Smaw,
993 F.2d 902, 904 (D.C. Cir. 1993).

1984). Under s 3C1.1 the district court could reasonably
determine that Maccado's failure to comply with a clearly
understood order was inadequate. Not only did Maccado's
explanation seem implausible, it failed to explain why he did
not provide his exemplar, or at least make arrangements to
provide it, before he went to the hospital and was thereafter
taken into custody, where his exemplar, albeit probably in a
disguised form, was finally obtained.7 Maccado could hardly
contend that the district court's interpretation of his conduct
as being consistent with obstruction is clearly erroneous, for
Maccado's version of events is undermined by Agent Codis-
pot's testimony that Maccado's telephone message stated he
would take care of the "court-ordered things" at another time,
thus indicating a deliberate, planned decision not to comply
with the court order, a serious matter in and of itself.
Consistent with the Sentencing Commission's acknowledg-
ment of the need for case-by-case determinations, see Appli-
cation Note 2, these are circumstances where the court owes
due deference to the district court's application of a guideline.
See In re Sealed Case, 199 F.3d at 491.

Accordingly, we affirm the appealed judgment.

__________
7 At sentencing, the government presented evidence that Mac-
cado's exemplar was "not naturally executed," and that when giving
his exemplar, Maccado "was straining" and "bearing down with a lot
of pressure."

 Williams, Circuit Judge, concurring: At the initial status
hearing on Maccado's indictment, the district court ordered
him to provide a federal agent a handwriting sample. Macca-
do disappeared. The district court's discussion of Maccado's
explanation, recounted in the majority opinion ("Maj. Op.") at
4, strikes me as somewhat ambiguous, but I accept the
majority's reading: namely that the court, rather than finding
the explanation insufficient, simply disbelieved it. On that
view, Maccado's disappearance looks like a deliberate and
considered decision to pursue a course tending to delay the
enforcement of the criminal law, and perhaps to thwart it.
On that assumption we must consider whether there was
error in the district court's decision under the Sentencing
Guidelines to add a two-point enhancement for obstruction of
justice under s 3C1.1.

In the course of affirming, the majority appears to estab-
lish a lower threshold for enhancement than s 3C1.1 permits.
The Guidelines provide for the enhancement "[i]f the defen-
dant willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice during the investiga-
tion, prosecution, or sentencing of the instant offense."
U.S.S.G. s 3C1.1. To elucidate this language the Sentencing
Commission has included in its commentary two non-
exhaustive lists, one of acts qualifying for the enhancement
and the other of non-qualifying acts. We owe the commen-
tary deference. Stinson v. United States, 508 U.S. 36, 38
(1993); see also U.S.S.G. s 1B1.7 (1995). Defendant's con-
duct is not among the specific examples, so we must try to
discern the pattern and see where Maccado's conduct fits
best.

To help the reader navigate through the two lists, I offer in
advance the general principles that the Fifth Circuit has
drawn from them. It found that the enhancement should
depend on the inherent tendency of the conduct actually to
obstruct justice and on the deliberateness of defendant's
behavior: "(1) whether the conduct 'presents an inherently
high risk that justice will be obstructed;' and (2) whether the
conduct 'requires a significant amount of planning,' as op-
posed to being 'the result of a spur of the moment decision' or
'stem[ming] from merely panic, confusion, or mistake.' "

United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000)
(internal citation omitted). The acts listed by the commen-
tary as qualifying for enhancement are, in the Fifth Circuit's
view, ones that are "egregiously wrongful," involving both
considerable advance planning and a high risk of derailing an
investigation or prosecution. United States v. Greer, 158
F.3d 228, 235 (5th Cir. 1998). In support it points to lan-
guage in the commentary noting the range of "degree of
planning[ ] and seriousness" that obstruction of justice issues
may present. Id. at 234. In fact, I question whether every
item in the Commission's lists handily fits the Fifth Circuit's
explanation, but it is a useful starting point.

Application Note 3 gives a non-exhaustive list of acts calling
for enhancement:

(a) threatening, intimidating, or otherwise unlawfully
influencing a co-defendant, witness, or juror, directly or
indirectly, or attempting to do so;

(b) committing, suborning, or attempting to suborn
perjury;

(c) producing or attempting to produce a false, altered,
or counterfeit document or record during an official
investigation or judicial proceeding;

(d) destroying or concealing or directing or procuring
another person to destroy or conceal evidence that is
material to an official investigation or judicial proceeding
(e.g., shredding a document or destroying ledgers upon
learning that an official investigation has commenced or
is about to commence), or attempting to do so; however,
if such conduct occurred contemporaneously with arrest
(e.g., attempting to swallow or throw away a controlled
substance), it shall not, standing alone, be sufficient to
warrant an adjustment for obstruction unless it resulted
in a material hindrance to the official investigation or
prosecution of the instant offense or the sentencing of
the offender;

(e) escaping or attempting to escape from custody
before trial or sentencing; or willfully failing to appear,
as ordered, for a judicial proceeding;

 (f) providing materially false information to a judge or
magistrate;

(g) providing a materially false statement to a law
enforcement officer that significantly obstructed or im-
peded the official investigation or prosecution of the
instant offense;

(h) providing materially false information to a proba-
tion officer in respect to a presentence or other investiga-
tion for the court;

(i) conduct prohibited by 18 U.S.C. ss 1501-1516.

This adjustment also applies to any other obstructive
conduct in respect to the official investigation, prosecu-
tion, or sentencing of the instant offense where there is a
separate count of conviction for such conduct.

U.S.S.G. s 3C1.1, Application Note 3. Many of these acts
easily score on both the factors identified by the Fifth Circuit.
Example (g), however, seems to embrace a defendant's spon-
taneous deception of a law enforcement officer--but only if
the deception in fact generates a "significant" obstruction or
impediment.

Application Note 4 gives examples of conduct not qualifying
for an enhancement:

The following is a non-exhaustive list of examples of the
types of conduct that, absent a separate count of convic-
tion for such conduct, do not warrant application of this
enhancement, but ordinarily can appropriately be sanc-
tioned by the determination of the particular sentence
within the otherwise applicable guideline range:

(a) providing a false name or identification document
at arrest, except where such conduct actually resulted in
a significant hindrance to the investigation or prosecution
of the instant offense;

(b) making false statements, not under oath, to law
enforcement officers, unless Application Note 3(g) above
applies;

 (c) providing incomplete or misleading information,
not amounting to a material falsehood, in respect to a
presentence investigation;

(d) avoiding or fleeing from arrest (see, however,
s 3C1.2 (Reckless Endangerment During Flight)).

U.S.S.G. s 3C1.1, Application Note 4. Given Note 3(g) and
the second part of Note 3(d), and the re-appearance of
concern for actual obstructive effect in 4(a) and 4(b), I might
amend the Fifth Circuit's classification to say that generally
the enhancement is due (1) when the conduct is the result of
planning and is highly likely to cause a serious derailment of
the process, or (2) when conduct, even if spontaneous, actually
does cause such a derailment. Such a view puts the risk of
derailment largely on the perpetrator. Other courts appear
to rely on the distinction between planned and high risk
conduct, on one hand, and instinctive and low risk conduct, on
the other. See United States v. Draves, 103 F.3d 1328, 1337
(7th Cir. 1997) (holding obstruction enhancement improper
when defendant fled from the back of a patrol car during his
arrest; "panicked, instinctive flight" must be distinguished
from "calculated evasion").

"[W]illfully failing to appear, as ordered, for a judicial
proceeding," see Application Note 3(e), appears not to fit
readily the Fifth Circuit's taxonomy. Such failures do not
seem necessarily to have a high risk of materially impeding
the criminal justice process--except in the sense of to some
degree wasting judicial resources; and, depending on the
breadth of "willfully," these acts might or might not encom-
pass spontaneous conduct. The language is, however, con-
fined to a "judicial proceeding," rather than reaching any
neglect of any judicial order, and would not seem necessarily
to encompass a judicial order to turn up for some ancillary
process such as giving a handwriting sample out of court.
Although courts have held that the failure to appear for a
non-judicial proceeding qualifies for a s 3C1.1 sentencing
enhancement, these courts also found the defendant acted in
a deliberate and calculated fashion. See United States v.
Defeo, 36 F.3d 272, 276 (2d Cir. 1994) (upholding s 3C1.1

enhancement for four month failure to report to pretrial
services because it was comparable to escape from custody);
United States v. Mondello, 927 F.2d 1463, 1466-67 (9th Cir.
1991) (contrasting defendant's two-week "cat-and-mouse
game of avoiding the authorities" after arrest with very
different "situation where ... a criminal is surprised in the
act of committing a crime and makes an evasive dodge to
avoid apprehension").

The majority's characterization of the Fifth Circuit's analy-
sis seems to me incorrect. The analysis does not set actual
hindrance as a threshold requirement for the enhancement,
compare Maj. Op. at 11, and it does not read out the attempt
language in s 3C1.1, compare Maj. Op. at 10. It requires
actual hindrance only when the defendant's act is better
viewed as spontaneous than deliberate (in the sense of delib-
erated). Also contrary to the majority, I do not see how the
Sentencing Commission's inclusion of attempts to obstruct
provides any basis for some sort of across-the-board lowering
of the bar. Compare id. For example, one who attempts to
escape from custody before trial deserves the enhancement,
even if he is foiled by an alert guard. See Application Note
3(e). But that is no basis for diluting the requirement of
actual impact expressed by the Commission in cases such as
3(g).

The majority goes some way to erase all the distinctions
that the Commission sought to draw. It characterizes the
Commission as having "included egregious as well as non-
egregious conduct in its list of acts that warrant a sentencing
enhancement," Maj. Op. at 10, and says that the Seventh
Circuit in Draves placed "the threshold higher than the
Commission's language and listings suggest," Maj. Op. at 8.
Obviously the margin between "egregious" and "non-
egregious" is vague, but the Commission was plainly trying to
set up a hierarchy. In Application Note 2 it stresses that
"Application Note 4 sets forth examples of less serious forms
of conduct to which this enhancement is not intended to
apply, but that ordinarily can appropriately be sanctioned by
the determination of the particular sentence within the other-
wise applicable guideline range." U.S.S.G. s 3C1.1, Applica-

tion Note 2 (emphasis added). By refusing to apply s 3C1.1
to "panicked, instinctive flight", the court in Draves was
merely honoring the Commission's scheme and leaving pun-
ishment of "less serious" obstructions to adjustment within
the otherwise prevailing sentencing range.

Accepting the district court's view of Maccado's conduct as
deliberate, there remains the question of the risk (or reality)
that his actions would seriously impede his prosecution. In
several cases courts have found a deliberate, affirmative
refusal to provide a handwriting sample grounds for enhance-
ment--in many of them the refusal was repeated. See Unit-
ed States v. Brazel, 102 F.3d 1120, 1163 (11th Cir. 1997)
(upholding enhancement where the defendant affirmatively
refused to provide, and never supplied, sample); United
States v. Taylor, 88 F.3d 938, 944 (11th Cir. 1996) (upholding
enhancement for defendant's "repeated refusals to supply
handwriting exemplars, and his effort to disguise his hand-
writing when he did supply them"); United States v. Ruth, 65
F.3d 599, 608 (7th Cir. 1995) (upholding enhancement where
the "court twice ordered handwriting exemplars, and [defen-
dant] twice failed to comply"); United States v. Reyes, 908
F.2d 281, 290 (8th Cir. 1990) (upholding enhancement where
defendant refused to comply with handwriting sample order
and never supplied one). Maccado's behavior seems to have
posed less risk and caused less actual impact on law enforce-
ment. Indeed, if we exclude days in the hospital or in
custody, only two days passed between the June 18, 1998
order and the actual taking of an example. Maccado seems
reminiscent of the luckless Conrad Hensley in Tom Wolfe's A
Man in Full, though to be sure a good deal more feckless.
But his hospitalization and custody may be viewed as wind-
falls, so that--given the deference we owe the district court's
application of law to facts, see United States v. Kim, 23 F.3d
513, 517 (D.C. Cir. 1994)--we cannot reverse the district
court for its implicit judgment that Maccado's actions pre-
sented a serious risk of derailing justice.

Accordingly, I join the court in affirming the judgment.