1 The Honorable J. Leon Holm es, United States District Judge for the Eastern

District of Arka nsas, sitt ing by de signation. 

## United S tates Cou rt of Appe als FOR THE EIGH TH C IRC UIT

___________ No. 04-20 81

___________ United States of Americ a, * * Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Tam my J. Pete rs, * * Appellant

. *

___________ Submi tted: Nove mber

18, 2004 Filed: Ja nuary 24, 2005

___________ Before WOLLMANand HEANEY, Circuit Judges, and HOLMES, 1 District Judge.

___________ HOLMES, D istrict Judge.

We are cal led upon

in this ap peal to in terpret U.S.S.G. § 3C1.1, which provides for enhanced punishment if a defendant willfully obstructed or im peded, or attempted to obstruct or

im pede, th e administratio n of justi ce during t he investiga

tion, prosecutio n, or sent encing of t he instant o ffense of

conviction.-2-

Tammy Peters w as indicte d, along w ith thre e co-def endants, f or distribu

ting metham phetamine. The gra

nd jury returned the indictment on June 6, 20 03. On June 17, 20 03, Pet ers sel f-s urr end ere d t o t he U .S. Mar sh als Ser vi ce. On t hat same day, she was released on her own recognizance under pretrial supervision of the U.S. Probation Office, with the condition that she ref rain f rom t he use of alcohol and drugs, and that she participate in sub stance abuse testing and treatment as deem ed appropriate. O n Ju ne 26, 2003, Peters t ested positive for metham phetam ine. She adm ittedto the pret

rial ser vices off icer on Jul

y 7, 20 03, that sh e had us e d
m ethamphetamine. Three days later, she tested positive for methamphet amine an d for amphetam

ine. She tested positive again on July 23. Peters adm ittedto her pretrial services officer

on July 2 5 that she had used m etham phe tamin e on July 10 a

nd July 23. On A

ugust 7, the United States filed a motion to revoke her pretrial relea se. On September 3, the court denied the government’s motion beca use Peters had entered inpatient dr

ug treatm ent.
On September 17, after P eters had tested positive three tim es while o n supervised release, Peters and the government entered into a plea agreement as a part of which t

he governm

ent stipulated

that she ha d accepte d responsibi lity a nd should be given cre dit under th e sentenc ing guideline s for having don e so. On Se ptember

29, 2003, P eters ent ered a ple a of guilty to one count of distribu

tion o f metham phetamine. Later the sam e day, she was a rrested f or driving while barred, and she reported the arrest to her probation officer. She failed to provide u

rine spec imens
on October

2 and October 7, an d she faile d to report f or her pre sentence interview on October 8.

On Friday , October 10, the p retrial services officer

submit ted a Non

Compliance Memo ran du m. The f oll owi ng M ond ay, Octo ber 13, was C olu mbus Day. The ma gist rate judg e sch edu led the revo cati on h eari ng f or 3 :30 p.m. fo r Tue sda y, October 14.-3-

When Peters’ s lawy er rece ived notice of the hea

ring by e- ma il, he se nt the notice to Peter s by U .S. m ail, and h e attem

pted to c all her b y t elephone. He forg ot that the follow ing Monday was Colum

bus Day . Peter s resided in Mason City, which is approxim

ately 136 mil es from

Cedar Ra

pids. On T

uesda y, October 14, Peters caught a ride to C edar Rap ids with a friend and w e nt to see her pretrial services officer. The visit was unschedule d, and Peters arrived unannounced. The ma il had not arrived at the timeshe left M ason City , so she w as unawa re that the

revocati on hearing had been sc heduled. The pret rial servi ces offic er told her about the revocati on hearing. Peters told the pretrial services officer that the person with

whom she was riding had to be back in Mason City by m id-afternoon to pick up her children from scho ol. The pretrial services officer told Peters that she needed to talk to her att orn ey. Peters called

her attorney, told him

that she hadnot been inf orme d of the
r evocation

h earing, and explained that she was in Ce dar Rapid s with a person who hadto return to Mason

City to pick u p her child ren from school

. She also t old him that she would be available any subsequent day that week. Peters’s law

yer told her that he would

file a motion to continue the hearing, which he did. Peters returned to Mason City with her ride. A

t 3:30 p.m., Peters’ s attorney an d the Assistant United States Atto rne y appear ed before the m agistrate

judge. The m agistrate judge
announ ced

that he had

receive d the m otion for c ontinuanceearlier in the da

y . Peters ’s lawyer stated: “ I spoke with Ms. Peters and co nfirmed her avail ability tomorrow, for

Thu rsd ay – Thursday or Frid ay, tomorrow or the day after t omorrow. And she is – in fact, is to call me this afternoon rather than m y trying to leave a
message for her, to make

sure that she gets the messag e about an y rescheduled time.” The magis trate j udge continue d the revoc ation hear ing until October 16 at

9: 00 a.m. Peters appeared as scheduled on October 16, and the m a gistrate judge revoked her presentence release.
The presentence investigation report recomm ended that Peters be given atwolevel increase

in her off ense level purs uant to U.S. S.G. § 3C1.1 bec ause she f ailed to appear for the O ctober 14, 2003, revocati on hearing. The presente nce investi gation-4-

reportalso recommended that Peters not be given a reducti on in her of fense lev el for
acce pt ance of res pons ibil ity. The p resen tence inve stig atio n repo rt cit ed Pet ers’s positive drug test, her two f ailures to provide ur

ine specim

ens, her failureto attend her presente nce intervie w, and her driving w hile barred as rea sons for de nying the downward

adjustm ent for a cceptanc e of respo nsibility . The pr esentence investigati o n repo r tcited noneof that con duct as a ba sis for the recom mende d enhancem

ent for obstruction

of justice. The district co urt found that P eters had willfull y fai led to appear for a court hearing set by the magistra te on Octo be r 14, that her proba

tion officer had advised herof the courtorder, and, instead of obeying, she had returned to Mas on C ity i n wil lfu l de via nce of t hat ord er. Th e co urt sta ted , “Cert ain ly I understand

that there

may have been short notice

for the he aring and perhaps the hearing would not h ave gone forward because counsel would have asked for a continuance in order to prepare, but that does not excuse her from disobeying a court order that she w as well a

ware of .” Thedistrict court also found that Peters had willful lyfailed to appear f or her pre sentence investigati on intervie w on October 8, and that she had willfully failed to appear fo r urinaly si s testing. The district court found th at each of th e three failu res consti tuted ob structiv e conduct

.
As a result of the two-level increase in offense

level base d on the find

ing that she had obstructed justice, coupled with the den ial o f her three-leve l decrea se in offenselevel for acceptance of responsibility, Peters’ s sentencing range increas e d from a range of

70 to 87 m onths to a ra

nge of 110 to 1 37 month s. The district court impose d a sentenc e of 110 m onths im prisonm ent.

We review a distric t court’ s factual findings underlying

an obstruc tion of justice enhancem

ent for c lear er

ror and its constructi on and ap plication of the guidelines de novo

. United States v. Mendoza-Gonzalez , 363 F.3 d788, 796 (8th Cir. 2004).-5-

U.S.S.G. § 3C1.1 pro vides: Obstructing or Impeding the Administration of Justice
If (A) the defendant willfully obstructed or im peded, or attem

pted to obstruct or im

pede, the administration o f justic e during the course of the investigati on, prose cution, or sentenc ing of the in stant offense of conviction, and (B) the obstructive conduct related to (i) the de fenda nt’s offenseof

conviction and any relevant conduct; or (ii) a closely related offe nse , inc reas e th e off

ens e lev el b y 2 levels.
The district c ourt prim

arily based the obstruction o f justic e enhance ment o n its finding that Peters h ad willf ully f ailed to appear a

t the revoc ation hear

ing initiall

y scheduled for Octo ber 14. In Application Note 4 to U.S.S.G. § 3C1.1, the United States Sentencing Commission provides a non-exhaustive list of ex ampl es of obstructive

conduct. Included a s an exam ple of such

conduct is “ (e) wil lfully

failing to appear, as ord ered, for a judic ial proceed ing.” U.S. S ENTENCI NG G UIDEL INES M ANU AL § 3C1.1, cmt. n.1 (20 03).

We have prev iously c onsidered obstruction o f justic e enhance ments based on willful failureto appear

for a j udicial pr

oceeding, most of

ten in case s in which t

he defendant fled but was later appreh ended. See United States v. Muro , 357 F.3 d 743, 744 (8th Cir. 2004 ); United States v. Young , 315 F.3d 911, 913 (8th Cir. 2003); United States v. Martinez , 234 F.3d 1047, 1048 (8th Cir. 2000); United Stat es v. B ell , 1 83 F.3d 746, 748 (8th Cir . 1999); United Stat es v. E agle , 133 F.3 d 608 (8th

Cir

. 1998); United States v. Crow Dog , 149 F.3 d 847, 848 (8 th Cir. 19 98); United States
v. Rodgers , 122 F.3 d 1129, 1131- 32 (8th Cir. 1997); United Sta tes v. H are , 49 F.3d 447, 453 (8th Cir . 1995); United S tate s v. Thom as , 72 F.3d 92, 93 (8th Cir. 1995); United States v. Aded

iran , 26 F.3d 61, 64-65 (8th Cir. 1994); United States v. Shinder , 8 F.3d 633, 635 (8th Cir . 1993). This cas e is distinc t from past case s intwo materialway s. First , the magistrate judge con

ti nu ed the revocation hearing that-6-

Peters failed to attend. The hear ing initiall

y scheduled f

or 3:30 p.m . on October 14
was continued to 9:00 a.m . on October 16. B efore the magis trate j udge grante d the continuance, Peters contacted her attor ney, informed him

of her ride’s need to return to Mason Cit y, receive d assuranc es from him tha t he would s eek a cont

inuance, and told him tha t she would

be available the following day – October 15 – or any day later in the week. On Octob er 16, P eters volu ntarily attended the resched uled heari ng. No
case has been cited to us holding that an obstruction of justice enhancem ent can be basedupon failure to appear at a hearing when the p residing j udge grante d a mot ion to continue tha

t hearing; nor have th e parties cited any case fin ding obs truc tion of justice when the d efendant voluntaril

y appeare d at a res cheduled he aring less than 48 hours after th e date on

which the

initial hea

ring was s cheduled. Second, this case is distinct in that the district court found that the initial hearing had been scheduled on short notice and

perhaps w ould not havegone forw ard beca use counsel

would have asked for a continuance in order to prepare. None of our prior cases presented an issue of inadequa

te notice n or an issue

of whether the hear

ing would ha

ve gone forward had the def

endant appe ared. B ased on the facts pre sented, we cannot say that Peters ’s failure to appearon Octobe r 14 cause d the court any m aterial delay

or expense or in any other way obstructed or impeded justice. Gi ven the unusual circumstances in this case, w e hold that the district court erred in finding that Peters willfully obstructe d o r imp ede d, or att empte d to obstruct or im pede, the admin istration

of justic e. We

therefor e conclude

that t he distric t court er red in findingthat Peters’s failure to appear for the O c tober 14 revocation he aring constit uted an ob structio n of justice under U.S.S.G. § 3C1 .1.
The district court als o found that Peters’ s failure to provide t

wo urine specim ens and failure to appear fo r he r presentence investigation interview constituted two additio nal acts of obstruct ion of just ice under U.S.S.G. § 3C1.1. The governm ent

did not argue below that these failures of Peters constituted bases for an obstruction

of ju stice enhancem

ent. App lication N ote 4 to U. S.S.G . §3C1.1 lists2 Application Note 4 s tates:

The follo wing is a no n-exhaustive list of e xampl es of the t ypes of conduct to w

hich this ad

justm ent applie s: (a) threaten ing, intim

idating, or

otherwis e unlawf

ully inf luencing a co-defe ndant, w itness, or juror, directly

or indirec tly, or attem pting to do so; (b) commit tin g, s ubo rni ng, or at tempt ing to s ubo rn p erju ry; (c) producing or

attem pting to produ ce a fal se, altered, or counterf eit document or re cord during an offic ial investi gation or judic ial proce eding; (d) destroying or concealing or directing or procuring another person to destroy or conceal evidence that is mater ial to an official investigat

ion or judi cial proc eeding ( e.g. , shredding a document or destroying ledgers upon learning that an official investigati on has com

menc ed or is abo ut to com menc e), or attempting to do so; however, if such conduct occurred contem poraneousl

y wit h arrest ( e.g. , attem

pting to swallow or throw away a controlled substance), it shall not, standing alone, be suffic ient to wa

rrant an adjustm

ent for obs truction unl ess it resulted in a ma

terial hindrance t o the offic ial investi gation or prosecutio n of the inst ant offen se or the sentencing of the offender; (e) escaping or

attem pting to esc ape from

custody before t rial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding; (f) providing materially false inform ation to a judge or magistrate; (g) providing a m

ateriall y fal se statem

ent to a la w enforc emen

t -7- examples of conduct that m ay con stitute obst ruction of

justic e. 2 E ach exam

pleofficer that significantly obstructed or impeded the official investigation or prosecution of the instance offense; (h) providing m

ateriall y fal se inform

ation to a pr

obation off

icer in respect to a presen

tence or o ther inves tigation fo r the cour t; (i) other condu ct prohibit ed by ob struction of justice provisions under Title 18, United States Code ( e.g. , 18 U.S .C. §§ 15 10, 1511); (j) failing to comply with a re straining order or injunction issued pursuant to 2 1 U.S. C. § 853(e ) or with an order to repatr

iate property issued pursuant to 21 U.S.C. § 853(p). This adj ustme nt also appl ies to any other obstr

uctive cond

uct in respect to the offic ial investi gation, pr osecution, or sentenc ing of the instant offense where there is a separate count of conviction for such conduct.
U.S. S ENTENCI

NG G UIDELINES M ANU AL § 3C1.1, cmt. n.1 ( 2003). -8- represe nts conduct substantially more egregious than that of Pet ers. While we recognize that the C omm

ission intend ed this list to serve no t as an exha ustive list, but rather an illustra

tive one, we pres ume th at other c onduct, not listed as a

n exam ple in the application note, should be of a sim ilarly egregious nature to t

he conduct in the applicati on note exam

ples befor

e it would c onstit

u te obstru ction of jus tice. Cf. United States v. Frisby , 258 F.3d 46, 50 (1st Cir. 2001) (stating that a defendant can be properly

found to bea career offender under a statute containing a non-exhaustive, illustrative list of off

enses where the of

fen se c omm itted was on par wit h the enumerated

offenses ). We

conclude t

h at the district court erred in holding that U.S.S.G. § 3C1.1 applies to Peters’s conduct here.-9-

Given our

conclusions above, we find that the district court erred in applying the obstruction of justice enhancement of U.S. S.G. § 3C1.1 in this case. Therefore,
we rem and for re sentencing

.
On rem and, thedistrict court should reconsider whether to grant the three-level decreas e for acc eptance o f responsi bility under U. S.S.G . § 3E1. 1. Applicat ion Note 4 to § 3E1. 1 provides:
Conduct resu lti ng in an enha ncem ent under § 3C1.1 (Obstructing o r Impe ding the Adm

inistratio n of Justice ) ordinar ily indi cates tha

t the defendant has not acc epted responsi b ility f or his crim

inal conduc t. There may , however, be extraordinary cases in which adjustments under bot h §§ 3C1 .1 an d 3E 1.1 may app ly.

U.S. S ENTENCI

NG G UIDELINES M ANUAL § 3E1.1, cmt. n.4 (20 03). See United States v. Honken , 184 F.3 d961, 967-70 (8th Cir. 1999). In denying Peters’s request for a decreas e in of

fense level based on acceptance of responsibility, the district court noted Honken and found no extraordi nary circumstances t hat would allow a decreas e in offenselevel for

accepta nce of responsibil ity con

tempo raneously

with the increase in offense level for obstruction of justice. Since we are reversing the obstruction of justice enhancem

ent, the d is tric t cou rt sho uld r econs ider wh ether to gra nt Pet ers’s req ues t fo r a de crea se i n of fen se l eve l ba sed on a ccep tan ce o f res pon sib ili ty.

We rev e rse the dis trict cour t’s holding that the c ircum stances of this case justify imposi tion of an increase of o ffense leve l for obst ruction o f justice, and we rema nd for res entencing.

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