*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 5 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALAN DALE NUCKOLLS, also known as Big Al, Defendant - Appellant. No. 97-5237 (D.C. No. 97-CR-88-K) (Northern District of Oklahoma)

ORDER AND JUDGMENT *

Before KELLY , HOLLOWAY and LUCERO , Circuit Judges.

Appellant Alan Dale Nuckolls pled guilty to crimina l contempt for failure to testify at trial despite a grant of immunity. H e now challenges his sentence, arguing that the district court applied the wrong s entencing guideline and erroneously enhanced his sentence by a two-level up ward departure. We have jurisdiction pursuant to18 U.S.C. § 3742 and 28 U.S .C. § 1291, and affirm.
I-2-

Indicted for his role in a drug distribution conspi racy, appellant Nuckolls pled guilty to possessing a firearm during a drug t rafficking offense, and was sentenced to 60 months in prison. The government t hereupon granted Nuckolls immunity and subpoenaed him to testify at the trial of his co-conspirators. Nuckolls refused to testify. Charged with contempt , he pled guilty. There was also testimony that he physically threatened a pros ecution witness. The district court calculated his sentence of 108 months impriso nment by using U.S.S.G. §§ 2J1.2 and 5K2.9. Section 2J1.2 applies to obstruct ion of justice. Section 5K2.9 allows for a discretionary two-level upward departu re if the defendant commits an offense in order to facilitate or conceal the commi ssion of another offense.
II Appellant Nuckolls argues the district court erred when it applied the obstruction of justice guideline to calculate his s entence for contempt. We review a district court’s application and interpretation o f the Sentencing Guidelines de
novo. See United States v. Voss , 82 F.3d 1521, 1531 (10th Cir. 1996). The court’s underlying factual findings, however, we su bject to the clearly erroneous standard of review. See id.1 Section 2J1.1 provides no specific guideline for contempt because “misconduct

constituting contempt varies significantly,” and thus a determination of the appropriate punishment for contemptuous conduct is “highly context-dependent.” SeeU.S.S.G. § 2J1.1, comment. (n.1). -3- Sentencing Guideline § 2J1.1 applies to contempt of fenses. However, Section 2J1.1 provides no specific guidelines for t his contempt. 1 Instead, it directs the sentencing court to apply U.S.S.G. § 2X 5.1. Section 2X5.1 provides, in turn, that if an offense is one for which no gui deline has been expressly provided, a sentencing court should apply the guide line for the most analogous offense. “In certain cases, the [contempt] offense conduct w ill be sufficiently analogous to § 2J1.2 (Obstruction of Justice) for t hat guideline to apply.” See U.S.S.G. § 2J1.1, comment. (n.1). When refusal to obey a court order to provide evidence at trial is intended to stymie the prosecu tion of criminal offenses, obstruction of justice is a sufficiently analogous offense to warrant application of U.S.S.G. § 2J1.2. See Voss , 82 F.3d at 1531-32. The district court found that Nuckolls’ refusal to testify was part of a code of silence meant to conceal a drug distribution conspiracy. Discerning no clear errorin the district court’s factual findings, we affirm its application of U.S.S.G. § 2 J1.2 to calculate appellant’s
sentence.-4-

We also affirm the district court’s application of U.S.S.G. § 5K2.9 which provides for an upward departure when the defendantcommits an offense in order to facilitate another offense. In reviewing an upw ard departure, we look to see whether it is reasonable and backed by permissible factors with sufficient factual support in the record. United States v. Collins , 122 F.3d 1297, 1303 (10th Cir. 1997). We review de novo the factors or circumstan ces the district court uses to justify departure, and subject its underlying factu al determination to a clearly erroneous standard. United States v. Stumpf , 938 F.2d 172, 173 (10th Cir. 1991). The district court applied Section 5K2.9 upon findi ng that Nuckolls threatened a prosecution witness to facilitate the commission of another offense—a drug distribution conspiracy. The record shows that Nuckolls threatened a prosecution witness, following the wit ness to his home and waiting outside with other threatening persons. He did thi s, the trial court found, as part of an effort to conceal an ongoing drug conspiracy. More important, Nuckolls engaged in these activities after being arrested fo r possession of a firearm during the commission of a drug trafficking offense. His actions represent the “extra measure of criminal depravity . . . the departure m echanism is designed to address.” United States v. Smith , 133 F.3d 737, 751 (10th Cir. 1997). The court’s finding is supported by the record, and its two-lev el upward departure was reasonable.-5-

Nuckolls argues, however, that his threats against the witness were addressed by the obstruction of justice guideline, U.S.S.G. § 2J1.2, that the district court had already used to calculate his se ntence for contempt. The court thus erred, he claims, in using a separate guidelin e, § 5K2.9, for a two-level upward departure. There is no merit to this argume nt. By threatening the witness, Nuckolls did not merely obstruct justice; he intended to facilitate and conceal a drug conspiracy scheme. His action was p art of the substantive offense of aiding and furthering a conspiracy and thus not addressed by the obstruction of justice guideline. Therefore, we affirm the distri ct court’s enhancement of appellant’s sentence under U.S.S.G. § 5K2.9.
AFFIRMED. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge