* District Judge of the Southern District of Texas, sitting

by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-40549

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

L.C. LISTER, JR.,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________________________________________________

(May 5, 1995)

Before KING and JONES, Circuit Judges, and LAKE, District Judge. *

PER CURIAM:

L.C. Lister, Jr. appeals from the sentencing determination of

the district court, arguing that an obstruction of justice

enh ancement was improperly applied and that an acceptance of

responsibility de duction was improperly denied. We affirm the

sentence imposed by the district court.2 I. FACTUAL AND PROCEDURAL BACKGROUND

In January of 1991, an investigation began into Lister's

involvement in the distribution of "crack" cocaine in the East

Texas area. Two cooperating individuals were employed to engage in

various crack purchases from Lister. On July 9, 1991, Lister was

charged in a five-count indictment with conspiracy to possess

cocaine base with intent to distribu te and with distribution of

cocaine base. On October 10, 1991, after the government had rested

its case, Lister pled guilty to count two of the indictment

involving the distribution of cocaine base.

The presentence report ("PSR") recommended a two-level

increase in Lister's offense level for obstruction of justice, and

it recommended against awarding a two-lev el decrease in Lister's

offense level for acceptance of responsibility. The district court

overruled Lister's objections to the PSR and adopted the findings

in the report. On January 8, 1992, Lister was sentenced to 151

m onths imprisonment followed by a four-year term of supervised

relief.

The sentencing enhancement for obstruct ion of justice was

based upon a May 20, 1991 sale of cra ck cocaine to a cooperating

individual named Katy Demond. While in Demond's automobile, Demond

gave Lister $2,100 in exchange for the crack cocaine. Lister

indicated that Demond was $100 short on the payment, and he began

looking around Demond's vehicle. He asked to see a picture

identification of Demond, and he stated his belief that Demond

might be a police officer. According to the PSR, Lister stated3

that if he got "busted," he would only have to make one telephone

call to have Demond "mess[ed] up." Lister further stated:

I'm just saying . . . you know what I'm talking about .

. . these men will kill

. . . they don't give a damn who

it is

. . . something would happen. It's going to be bad

luck I'm telling you.

. . . They don't give a damn about

kids or nothing

. . . They come

. . . T hey blow your

fucking house up. I'm telling you right now . . . You

can tell me you can go snitch on everybody else but don't

snitch on me . . . .

Lister then began searching Demond's automobile for possible hidden

microphones, but he eventually sold Demond two ounces of crack.

The transaction was monitored and audiotaped by case agents.

Lister does not challenge his underlying conviction; instead,

he only appeals fro m his sentencing determination. According to

Lister, he did not "willfully" obstruct justice because he "did not

know that he was under investigation by any authorities or that

these individuals were potential witnesses against him." Moreover,

Lister claims that the district court erroneously denied him a

sentence reduction for acceptance of responsibility. We disagree

with Lister's c ontentions, but before discussing his claims, we

address a threshold issue involving our jurisdiction to hear this

appeal.

II. ANALYSIS AND DISCUSSION

A. Jurisdiction

After his conviction and sent encing, Lister did not

immediately appeal. He filed a motion pursuant to 28 U.S.C. § 2255

alleging that he received ineffective assistance of counsel because

his attorney failed to appeal his sentence. The magistrate judge

recommended 1) that the motion be dismissed without prejudice; 2)1 Lister requested appellate counsel because Abraham had

recently accepted employment as an Assistant Attorney General for

the State of Texas.

4 that Lister's judgment of conviction be reinstated on the docket of

t he district court; and 3) that Lister be given ten days from

r eceipt of the final judgment to file his notice of appeal. The

district court adopted the report and recommenda tion of the

magistrate judge and ordered the reinstatement of Lister's judgment

of conviction. The court also advised Lister that he could file

his appeal within ten days of receiving the order.

The district court's order of reinstatement was entered on May

13, 1994. Return receipts in the record indicate that the order

was received by Lister's attorney, C. Bruce Abraham, on May 14,

1994, and by Lister h imself on May 17, 1994. On June 8, 1994,

Abrah am filed a notice of appeal in which he represented that he

received the order on May 31, 1994. On June 17, 1994, Lister also

filed a notice of appeal, together with a motion for appointment of

appellate counsel. 1 On July 7, 1994, the district court granted

Lister's motion and appointed the Federal Public Defender to

represent Lister on appeal.

Because the first notice of appeal was apparently filed more

than ten days after receipt of the order, our jurisdiction to hear

this appeal is in question. We have long held that, if necessary,

an examination of the basis of our jurisdiction must occur on our

own motion. S ee Mosley v. Cozby

, 813 F.2d 659, 660 (5th Cir.

1987). Lister's ten-day period for filing his appeal elapsed on

May 24, 1994. Under Federal Rule of Appellate Procedure 4(b),5

however, the district court may extend the time for filing a notice

of appeal for a period of up to thirty days if "excusable neglect"

i s found. In U nited States v. Quimby

, 636 F.2d 86, 89 (5th Cir.

Unit A Feb. 1981), we concluded that the district court's ruling on

the motion to appoint counsel and to allow appeal in forma pauperis

constituted such a finding of "excusable neglect" when the notice

of appeal was untimely. Following Q uimby

, therefore, the district

court's ruling on Lister's moti on for appointment of appellate

counsel was tantamount to an "excusable neglect" finding, and as

such, we have jurisdiction over Lister's appeal.

B. Obstruction of Justice

Lister objected to the upward adjustment in his sentence for

obstruction of justice, but the d istrict court overruled his

objection and adopted the PSR in its entirety. On appeal, Lister's

primary contention is that he did not "willfully" obstruct justice

because he was unaware that he was the subject of an investigation

and that Katy Demond was a witness for the government. According

to the PSR, bef ore threatening Demond, Lister "stated that he

believed that [Demond] might be a police officer," and the PSR also

noted that "[ t]he defendant made specific threats to the

confidential informant when he suspected that [she ] might be an

undercover officer." The PSR implied, however, that knowledge or

awareness of an investigation was irrelevant to the obstruction of

justice enhancement, as the PSR stated that the relevant sentencing

guideline "does not state that th e defendant must have prior2 Similarly, the government contends that the obstruction

of justice enhancement "does not state that the defendant must

have prior knowledge that an official investigation has been

undertaken," and it further asserts that "it is of no consequence

that Defendant was not aware an official investigation of his

drug activities was under way."

6 knowledge that an official investigation has been undertaken." 2 As

mentioned, the district court adopted the findings of the PSR in

their entirety.

The sentencing court's interpretations of the guidelines,

being conclusions of law, are reviewed de novo. United States v.

McCaskey

, 9 F.3d 368, 372 (5th Cir. 1993), cert. denied

, 114 S. Ct.

1565 (1994). We conclude that a defendant's awareness of the

commencement of an investigation is relevant and necessary for the

obstruction of justice enhancement. As we will explain, however,

the district court made the required findings in this case, and as

such, the guidelines were properly applied.

The obstruction of just ice enhancement, U.S.S.G. § 3C1.1,

states that "[i]f the defendant willfully obstructed or impeded, or

attempted t o obstruct or impede, the administration of justice

during the investigation, prosecution, or sentencing of the instant

offense, increase the offense level by 2 levels." One of the

examples of the types of conduct covered by this enhancement is

"threatening, intimidating, or otherwise unlawfully influencing a

co-defendant, witness, or juror, directly or indirectly, or

attempting to do so." I d. Courts have defined "willful" to

require the defendant to act "deliberately and with the intent to

hinder justice," United States v. Teta

, 918 F.2d 1329, 1333 (7th7

Cir. 1990); see United States v. Rivera

, 971 F.2d 876, 894 (2d Cir.

1992) (noting that the defendant must ha ve "consciously act[ed]

with the purpose of obstructing justice" (internal qu otation

omitted)), but the interpretive question before us is whether the

term "willfully" contemplates "an understanding that an

investigation of a defendant's conduct has probably begun, or

simply means that the defendant was generally knowledgeable as to

the likely effect of a threat on the person to whom the conduct is

directed." U nited States v. Oppedahl

, 998 F.2d 584, 585 (8th Cir.

1993).

The term "willful," unfortunately, is a term with "no fixed

meaning," Smith v. Wade

, 461 U.S. 30, 63 n.3 (1983) (Rehnquist, J.,

dissenting), and the Supreme Court has co unseled that the term's

construction is often "influenced by its context." S pies v. United

States

, 317 U.S. 492, 497 (1943). To understand the context in

which we base our decision today, an examination of the pertinent

case law is necessary.

In United States v. Luna

, 909 F. 2d 119 (5th Cir. 1990), t he

appellant committed an assault with a gun and concealed the gun

before the crime was reported an d before an investigation had

c ommenced. S ee id. at 120. The government conceded that an

investigation of the offense did not begin until several hours

after the gun was concealed. The district court found that an

obstruction of justice enhancement was appropriate "because the

concealment of the weapon constituted obstruction of justice." I d.

We reversed, emphasizing the temporal language of the enhancement:3 The slight difference in the language of the

enhancement is due to the fact that an earlier version of the

Sentencing Guidelines was at issue in Luna

.

8 "during the investigation or prosecution of the instant offense." 3

As we explained:

In the instant case it is undisputed that no investigation had begun when appellant concealed the gun

. It is equally clear that appellant concealed the weapon

so that his crime would go unpunished.

. . . The government relies on three cases[,] all of which are

factually i napposite s ince in each of those cases the

investigation was already underwa y at the time the

defendants attempted to conceal or destroy the evidence

.

Id. (emphasis added) (footnote omitted). From this language, it is

clear that Luna established a temporal re quirement for the

obstruction of justice enhancement, but the opinion did not address

whether a def endant's awareness of the investigation is also

required before the enhancement can be imposed.

In United States v. Wilson

, 904 F.2d 234 (5th Cir. 1990),

however, we did hint that a defendant's awareness may be necessary

for imposition of the enhancement. Wilson used an alias and gave

a package containing firearms to a Federal Express agent in Dallas

for delivery to New York. S ee id. at 235. Wilson did not tell the

Federal Express agent that the package contained firearms, nor did

Wilson know that agents of the Bureau of Alcohol, Tobacco, and

Firearms were watching nearby. S ee id. At sentencing, the

district court found that an obstruction of justice enhancement was

warranted because "Wilson's use of an alias impeded the

investigation of the offense." Id.4 Indeed, in the subsequent Luna decision, we stated that

our inquiry was guided by Wilson , and we focused on the temporal

language in Wilson that there was "simply no evidence that Wilson

willfully impeded or obstructed the administration of justice or attempted to do so either, during the investigation or

prosecution of his offense." Luna , 909 F.2d at 120 (quoting

Wilson , 904 F.2d at 235).

9 We reversed this finding on appeal, and we intimated that a

defendant cannot obstruct justice (in the context of the sentencing

e nhancement) without an awareness that an investigation into his

behavior has commenced. As we observed:

There is simp l y no evidence that Wilson wil[l]fully

impeded or obstructed the administration of justice, or

attempte d to do either, d uring the investigation or prosecution of his offense. Wilson did not misrepresent

his identity to law enforcement officers; he

misrepresented it to Federal Express. A t that time,

Wilson was unaware that any investigation was taking

place and prosecution had not yet begun

. His intent

clearly was not to impede the investigation or

prosecution of his offense. His intent was to disguise

himself in such a way so that his crime would go unpunished. At that he was unsuccessful, and he deserves

to be punished for his underlying offense. An increase

in his offense level is, however, unwarranted.

Id. (second emphasis added). Wilson alone, however, cannot stand

for the propo sition that a defendant's awareness of the

investigation is independently necessary before the enhancement can

be imposed. After all, the above-quoted language suggests that the

temporal requirement was also not met in Wilson , and we did not

explain the extent to which this temporal problem led to our

conclusion. 4

The Eighth Circuit, however, did address the independent

significance of this awareness issue in a case strikingly similar

to the one now before us. In O ppedahl

, the defendant was a n LSD10

dealer, and during the course of dealing with a customer, the

defendant remarked "that he would kill the customer if he ever

`narked' on his supplier." 998 F.2d at 585. At the time, the

defendant was unaware that his conver sation had occurred when he

and his customer were und er suspicion and when an investigation

into their conduct had already begun. See id.

The Probation Officer recommended an obstruction of j ustice

enhancement, but the district court rejected the suggestion. See

id. The court found that the customer was intimidated by the

threat, but it held that there was no "willful" obstruction of

justice when the defendant was unaware of the investigation. See

id. On appeal, the Eighth Circuit affirmed, and it provided the

following insightful analysis :

It would be anomalous for the Sentencing Co mmission to

direct that sentences be enhanced for threatening conduct

during the course of a totally unknown investigation,

while providing that similarly culpable conduct would not

result in an enhancement if there were no investigation.

D eterrence would not be served by such a rule, absent

some awareness of the investigation. Culpability is

identical, by definition. W e believe that the term

"willfully" should be reserved for the more serious case,

where misconduct occurs with knowledge of an investigation, or at least with a correct belief that an investigation is probably underway

. Thus, the deterring

effect of the Guideline is advanced, at least in theory.

Id. at 586 (emphasis added); see also United States v. Perry , 991

F.2d 304, 312 (6th Cir. 1993) (denying an obstruction of justice

enhancement for sending alleged robbery proceeds to a girlfriend in

anoth er state because "[a]t the time [the defendant] sent the

money, he had no knowledge that an investigation was underway , he5 In this respect, the cases cited by the government from

this circuit are inapposite, as they all involve contested

conduct when the defendant knew that the authorities were

investigating or seeking to inquire about certain behavior. The

government's cases emphasize that at the time of the obstructive

conduct, the authorities were actually investigating an offense

other than the eventual offense of conviction on which the

enhancement was applied. This distinction, however, is not

relevant to the awareness requirement, as flouting authority

after an individual possesses an awareness of the involvement of

the authorities is the type of conduct that the enhancement

focuses upon, regardless of the specific behavior that got the

authorities involved in the first place. The government's

distinction may be relevant to whether the temporal requirement

is satisfied, but that question is not before us in this case,

and we express no opinion on the issue.

11 did not subvert the investigation by his act, and he did not effect

a delay in the prosecution of his crime" (emphasis added)).

This Op pedahl reasoning is consistent with the direction of

our Luna and Wilson decisions, and we too believe that the

obstruction of justice enhancement should apply only to those cases

where misconduct occurs with the defendant's knowledg e of an

investigation, or at least with the defendant's correct belief that

an investigation is probably underway. Thus, we find that the

obstruction of ju stice enhancement involves both a temporal

requirem e nt and an awareness requirement

-- requirements that

reflect the notion that once government action has been initiated,

and an individual is aware of such action, we expect and encourage

that individual to cooperate and to compl y with the authorities,

and that cooperation and compliance includes the cessation of any

conduct that facilitates the successful completion of a crime. 5

As mentioned, in the instant case, the PSR noted that

"[s]ubsequent to defendant Lister requesting identification of6 In United States v. Roberson , 872 F.2d 597, 609 (5th

Cir.), cert. denied , 493 U.S. 861 (1989), we observed that

"[a]lthough section 3C1.1 does not expressly require a link

between the offense of conviction and the obstruction, it refers

to a defendant's efforts to obstruct the `instant offense.' This

reference arguably requires a nexus between the obstruction and

the offense at issue." Despite Lister's attempts to separate the

count that he pled guilty to and the threats that he made to

Demond, it is clear that the threat to Demond was designed to

intimidate her and to prevent her from telling the authorities

about any

of Lister's drug transactions, and we refuse to find

that the threat was limited only to a particular drug transaction

at a particular day and time. A nexus between the threat and the

count of conviction, if required, is clearly present in this

case.

12 [Demond], he stated that he believed that [Demond] might be a

police officer " (emphasis added). Lister then made his threatening

statements to Demond. In addition, the PSR later noted that "[t]he

defendant made specific threats to [Demond] when he suspected that

[she] might be an undercover officer." The district court adopted

these findings, and they clearly indicate that Lister made his

threatening statements with a belief that an investigat ion was

probably underway. Because Lister was correct in this belief, the

district court did not err in imposing the enhancement. 6

C. Acceptance of Responsibility

Lister contends that he should have re ceived a downward

adjustment for acceptance of responsibility, and he argues that he

was improperly denied such an adjustment because of the district

court's erroneous obstruction of justice finding. As we observed

in United States v. Cartwright

, 6 F.3d 294, 304 ( 5th Cir. 1993),

cert. denied

, 115 S. Ct. 671 (1994), we have applied various

standards to reviewing a district court's refusal to credit

acceptance of responsibility: clearly erroneous, without13

foundation, and great deference. We noted, however, that "[t]here

appears to be no practical difference between the three standards."

Id. Regardless of the formulation, the sentencing guidelines

indicate that "[t]he sentencing judge is in a unique position to

evaluate a defendant's acceptance of responsibility." U.S.S.G. §

3E1.1 (commentary).

According to th e Sentencing Guidelines, "[a] defendant who

enters a guilty plea is not entitled to an adjustment under this

section as a matter of right." Id. One of the considerations in

determining whether a defendant qualifies for an acceptance of

responsibility deduct ion is "the timeliness of the defendant's

conduct in manifesting the acceptance of responsibility." Id.

Similarly, "[t]his adjustment is not intended to apply to a

defendant who puts the government to its burden of proof at trial

by denying the essential factual elements of guilt, is convicted,

and only then admits guilt and expresses remorse." Id.

In denying an adjustment for acceptance of responsibility, the

district court did not rely solely on the obstruction of justice

findings. The PSR stated that "the defendant put the Government to

it's [sic] burden of proof at trial and did not enter a guilty plea

until the closing statements at trial. This does not appear to

meet the criteria for th e two-level reduction for acceptance of

responsibility." The district court accepted the PSR's findings,

and we cannot say that the findings are "without foundation" or are

"clearly erroneous." See United States v. Diaz , 39 F.3d 568, 572

(5th Cir. 1994) (denying an acceptance of responsibility14

adjustment, in part because "Defendants waited until the morning of

trial to enter plea negotiations"); Unit ed States v. Wilder , 15

F.3d 1292, 1299 (5th Cir. 1994) (de nying an acceptance of

responsibility adjustment, in part because the defendant "did not

agree to plead guilty until the eve of trial, thereby putting the

government to much effort and expense preparing for trial"). In

the instant case, Lister did not plead guilty and accept

responsibility until he had put the government to its proof, and we

see no reason to disturb the district court's denial of a downward

adjustment.

III. CONCLUSION

For t he foregoing reasons, the sentence imposed by the

district court is AFFIRMED.