UNITED STATES of America, Appellee, v. Nigel Judson MACCADO, Appellant, 343 U.S. App. D.C. 250

Opinion for the Court filed by Circuit Judge ROGERS. Concurring opinion filed by Circuit Judge STEPHEN F. WILLIAMS. ROGERS, Circuit Judge: Nigel Judson Maceado appeals his conviction on the ground that the district court misapplied United States Sentencing Guidelines (“U.S.S.G.”) § 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 scheduled judicial proceedings, and second, his guilty plea cured any obstruction. We hold that § 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 warranted an enhancement under § 3C1.1. Accordingly, we affirm. I.

Maceado was indicted in 1998 for possession of false identification documents with intent to defraud the United States and for making false statements in a passport application. See 18 U.S.C. §§ 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 Maceado 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.

Maceado 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 company. 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 Department of State Bureau of Diplomatic Security obtained an arrest photograph of Maceado 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 Service that Maceado 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 contemplation of trial, the district court granted the government’s motion to compel Maceado to submit a handwriting exemplar that day to Agent Codispot, who was present in the courtroom. When asked by the court if he understood the court’s order, Maceado replied, “Yes, your Honor.” Nevertheless, Maceado 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 Maceado in Maryland.

At that time Maceado was in the Charles County Detention Center in LaPlata, Maryland. At Maccado’s sentencing hearing, Agent Codispot testified that after the June 18th status hearing, he accompanied Maceado and his wife to the first floor of the courthouse. Agent Codispot told Maceado 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 returned minutes later, Maceado was gone; his wife explained that Maceado had left to move the car.

After waiting for over an hour for Maceado to return, Agent Codispot returned to his office and found a message from Maceado that his car had overheated and he had left it at his wife’s office, that he had 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 Maceado at the pager number that Maceado had left as part of his recorded message. Maccado’s wife recounted somewhat different events.

She testified that after the status hearing Agent Codispot informed them the exemplar would be taken at an office in Virginia, and that Maceado left the courthouse to retrieve the car so they could follow the agent to Virginia. Upon returning to her office later that day, Mrs. Maceado found a message from her husband explaining that he had encountered car problems and another message from her cousin’s wife stating that Maceado had been to the hospital to get water for the car. Upon returning home around 4:30 p.m., Mrs. Maceado 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 rescheduling 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, notwithstanding 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 exemplar 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. § 3C1.1 and crediting Maceado for acceptance of responsibility, id. § 3E1.1, which resulted in a sentencing range of 12 to 18 months, the court sentenced Maceado to 18 months’ incarceration and three years’ supervised release. II.

On appeal, Maceado contends that mere disobedience of a court order is insufficient to constitute obstruction of justice under U.S.S.G. § 3C1.1 where the ordered evidence is'produced 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, Maceado contends that the district court’s application of U.S.S.G. § 3C1.1 involved an erroneous

interpretation of law that is subject to de novo review. As to our standard of review, we agree with Maceado. Maceado 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. Consequently, the only issue presented on appeal is whether § 3C1.1 requires that a defendant’s conduct have a substantial 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 § 3C1.1, the court must accord due deference to the district court’s factual determination 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. § 3742(e); see also United States v. Drew, 200 F.3d 871, 880 (D.C.Cir.2000).

The relevant version of § 3C1.1 of the Sentencing Guidelines 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, prosecution, or sentencing of the instance offense, increase the offense level by 2 levels. U.S.S.G. § 3C1.1 (1995). In the Application Notes to the Guidelines, which the court must treat as authoritative, see Stinson v.

United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), the Sentencing Commission has included two non-exhaustive lists of examples to illustrate some of the kinds of conduct that do and do not fall within § 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 seriousness ... [and] is not subject to precise definition.” Application 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] providing materially false information to a judge or magistrate.” U.S.S.G. § 3C1.1, Application Note 3(b), (e), (f).

On the other hand, examples of acts that do not qualify for punishment under § 3C1.1 include “providing incomplete or misleading 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). By providing non-exhaustive illustrations, the Sentencing Commission has left considerable discretion in applying § 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 § 3C1.1 to particular fact patterns. The question, therefore, is how the threshold for applying § 3C1.1 is to be defined. Efforts by the circuit courts of appeal to identify that threshold have not been particularly successful in view of the breadth of the text of § 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 inherently high risk that justice will be obstructed;’ and (2) whether the conduct ‘requires a significant amount of planning,’ as opposed to being ‘the result of a spur of the moment decision’ or ‘stemfming] 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, instinctive 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 Application Note 3 includes actions that do not seem to require much planning. The circuits, however, have had little problem imposing § 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 conduct is required under § 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 obstructive conduct rather than formal

definitions. Cf. United States v. Harrison, 42 F.3d 427, 431 (7h Cir.1994). Other circuit cases emphasize the obstructive nature of avoiding full compliance with an order to provide an exemplar. Both the Second and Seventh Circuits have affirmed § 3C1.1 enhancements when a defendant disguised a handwriting 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 § 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 § 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.3d 272, 276 (2d Cir.1994), affirmed enhancement under § 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 § 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 § 3C1.1 to handwriting exemplars and out-of-court conduct is persuasive for three reasons: the Commission has (1) used broad language in § 3C1.1; (2) included egregious as well as non-egregious conduct in its list of acts that warrant a sentencing enhancement; and (3) determined that for most of the listed conduct sanctionable under § 3C1.1, actual hindrance is an irrelevant consideration. By contrast, our concurring colleague’s

interpretation does not adequately explain either the language of § 3C1.1 or the two lists in the commentary. The Commission not only included attempts in § 3C1.1 but stated that “willfully failing to appear, as ordered, for a judicial proceeding” is punishable under § 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 § 3C1.1 enhancement for obstruction 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 proceeding” rather than an “ancillary process,” see infra concurring opinion at 259, for the obstruction that occurred in both cases was adverse to the court’s process.

Accordingly, we hold that a § 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 underlying 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 Maceado 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 § 3Cl.l’s inclusion of attempts. Each of these circumstances, in other words, fails to eliminate the concern about the potential effect of the defendant’s conduct that the guideline is addressing.

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 “seriousness” of the obstructive conduct are relevant factors for the district court to consider in deciding whether a § 3C1.1 enhancement is warranted, we reject a heightened threshold requiring conduct that has a substantial effect on the investigation 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 United 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 indifference to the order are not.” Id. at 1317 (citations omitted). Having concluded that the threshold for application of § 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.1994). Under § 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. Maceado 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 Codispot’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 acknowledgment of the need for case-by-case determinations, see Application 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. . Two days after the status hearing at which he was ordered to provide the exemplar to Agent Codispot, Maceado attempted suicide. He was hospitalized and thereafter transferred to the Charles County Detention Center based on a Maryland warrant for a parole violation. .

The district court sentenced Maceado under the 1995 edition of the Sentencing Guidelines, and we refer to that edition. Maccado’s offense occurred in September 1997, and the relevant guideline was modified in November 1997. . Application Note 3 lists the following examples: (

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 impeded the official 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. §§ 1501-1516. . 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 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 presehtence investigation; (

d) avoiding or fleeing from arrest (see, however, § 3Cl.2 (Reckless Endangerment During Flight)). . Our concurring colleague refines the Fifth Circuit’s analysis slightly. See concurring opinion at 257. . The cases on which Maceado relies are distinguishable for the reason that the Application Notes require that the giving of false identification information to authorities actually hinder the investigation 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 materiality 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). . At sentencing, the government presented evidence that Maccado's exemplar was "not naturally executed,” and that when giving his exemplar, Maceado “was straining” and "bearing down with a lot of pressure.”