PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4162

MICHAEL CRANDALE WILLIAMS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Elizabeth City.

Malcolm J. Howard, District Judge.

(CR-95-9-H)

Argued: March 5, 1998

Decided: July 30, 1998

Before MICHAEL and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed in part, reversed in part and remanded by published opinion.

Senior Judge Phillips wrote the opinion, in which Judge Michael and

Judge Motz joined.

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COUNSEL

ARGUED: Fred Warren Bennett, Associate Professor of Law,

CATHOLIC UNIVERSITY LAW SCHOOL, Washington, D.C., for

Appellant. Anne Margaret Hayes, Assistant United States Attorney,

Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie

Cole, United States Attorney, J. Benjamin Davis, Third Year Law
Student, YALE LAW SCHOOL, Miguel Hull, Third Year Law Student, UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW,

Raleigh, North Carolina, for Appellee.

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

This is an appeal by Michael Williams in which he challenges his

convictions and the resulting sentences imposed for conspiring to possess with intent to distribute crack cocaine in violation of 28 U.S.C.

§ 846, knowingly possessing a firearm during and in relation to a drug

trafficking offense in violation of 18 U.S.C. § 924(c), and being a

convicted felon in possession of several firearms in violation of 18

U.S.C. § 922(g)(1). We affirm in part and reverse and remand in part.

I.

On April 19, 1995, local law enforcement officers arrested Michael

Williams, Pedro Gonzalez, and Juan Gonzalez, Jr. for selling cocaine

out of a mobile home in Murfreesboro, North Carolina. The officers

apprehended the three men upon their return to the mobile home in

an Oldsmobile Ninety-Eight. Upon searching the vehicle, the officers

discovered a .45 caliber pistol, a 9mm Smith and Wesson handgun,

2.9 grams of cocaine base (crack), .7 grams of cocaine powder, and

about $800 in cash. Williams was immediately arrested, handcuffed,

and placed in the back seat of a police vehicle. The officers then proceeded to search Williams's parked Chevy Blazer finding additional

firearms, considerable ammunition, and approximately $7000 in cash.

During this search, Williams escaped from the police vehicle and was

not apprehended until the following morning.

Testimony at trial revealed that all three defendants had come to

North Carolina from their hometown of Allentown, Pennsylvania. At

Williams's request, both Gonzalezes had accompanied Williams on a

trip from there through Ohio and Virginia on their way to North Carolina. In Ohio, Williams showed the Gonzalezes "two cookies" of

crack cocaine claiming that they weighed 10 ounces. After arriving

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in North Carolina, the three men stayed at a mobile home belonging

to a friend of Williams.

Pedro Gonzalez, who agreed to cooperate with the government

after pleading guilty on two counts, testified that during their stay

Williams directed him to distribute crack cocaine and supplied $1000

worth of "$20 hits" of crack cocaine. Pedro Gonzalez also testified

that he had sold cocaine with Williams in North Carolina on a prior

visit and that Williams distributed cocaine in Pennsylvania as well.

Other witnesses also testified that Williams had engaged in distribution of both crack and cocaine powder.

Several witnesses also testified that Williams possessed various

firearms and carried or used them frequently on and just prior to the

date of his arrest. Pedro Gonzalez explained that Williams almost

always carried the .45 caliber pistol in a holster strapped to his side

when orchestrating or completing drug deals. Another witness, John

Hendrick, testified that Williams was carrying a firearm when he sold

Hendrick a substantial amount of crack.

At the conclusion of the trial, the jury returned a verdict of guilty

on all three counts against Williams. The presentence report, prepared

by the probation office following the verdict, attributed 712.5 grams

of crack cocaine and 113.4 grams of cocaine powder to Williams. The

quantities were derived mainly from out-of-court statements of Pedro

Gonzalez. The PSR also recommended that Williams be assessed a

two-level enhancement for obstruction of justice. At the sentencing

hearing, the district court rejected objections by Williams to both the

drug quantity amount and the obstruction of justice enhancement recommended by the PSR. The court then sentenced Williams to imprisonment for a term of 384 months.

This appeal followed. On it, Williams raises various claims of error

affecting his convictions and the sentences imposed.

II.

Williams first argues that the district court erroneously instructed

the jury regarding the reasonable doubt standard. The following

instruction was given to the jury:

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The law does not require a defendant to prove his innocence

or produce any evidence at all. The government has the burden of proving a defendant guilty beyond a reasonable

doubt, and if it fails to do so, you must find the defendant

not guilty.

And thus while the government's burden of proof is a strict

or heavy burden, it is not necessary that the defendant's

guilt be proven beyond all possible doubt. It is only required

that the government's proof exclude any reasonable doubt

concerning the defendant's guilt.

Now, reasonable doubt is a real doubt based upon reason

and common sense and careful and impartial consideration

of all the evidence in the case.

(J.A. at 210.)

Before the jury was charged, Williams requested a more detailed

instruction defining reasonable doubt. The district court refused. Williams now complains that the reasonable doubt instruction as given

entirely failed to provide any meaning to the concept because it did

not define the term. Alternatively, he argues that, to the extent a definition was offered, it was incomplete and improperly reduced the

government's burden of proof.

It is per se reversible error to give a constitutionally deficient reasonable doubt instruction. Sullivan v. Louisiana , 508 U.S. 275 (1993).

The proper inquiry in reviewing a reasonable doubt instruction is

whether there is a reasonable likelihood that the jury applied the reasonable doubt standard in an unconstitutional manner. Victor v.

Nebraska, 511 U.S. 1, 5 (1994). The trial court is not required to

define reasonable doubt as a matter of course so long as the jury is

instructed that a defendant's guilt must be proven beyond a reasonable doubt; the Constitution does not obligate a court to further define

the standard. Id.

In accordance with Victor and because of our belief that efforts to

define reasonable doubt are likely to confuse rather than clarify the

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concept, we have repeatedly held that a district court need not, and

in fact should not, define the term "reasonable doubt" even upon

request. United States v. Reives, 15 F.3d 42, 45 (4th Cir. 1994) ("[W]e

have consistently and vigorously condemned the attempts of trial

courts to define reasonable doubt."); United States v. Adkins, 937 F.2d

947, 950 (4th Cir. 1991) (expressing a "categorical disdain" for

attempts at defining reasonable doubt). Therefore, Williams's claim

that the district court erroneously refused to define reasonable doubt

is contrary to the law of this circuit.

Williams's argument that the district court's instruction improperly

lessened the government's burden of proof is similarly unpersuasive.

In Adkins, we expressly held that an instruction containing the first

two paragraphs quoted above from the district court's charge survived

constitutional scrutiny. 937 F.2d at 949-50. In particular, we observed

that the instruction "left `reasonable doubt' to its `self-evident meaning comprehensible to the lay juror.'" Id. at 949 (citations omitted).

The district court's instruction that "reasonable doubt is a real

doubt based upon reason and common sense and careful and impartial

consideration of all the evidence in the case" does not convert the

Adkins-approved portion of the instruction into an unconstitutional

definition. This additional sentence merely admonished the jury to

exercise reason and unbiased diligence in reaching a decision. This

general guidance neither impeded the jury's application of the "selfevident meaning" of reasonable doubt nor "undermine[d] or destroy-

[ed] their common sense appreciation of that term's meaning."

Murphy v. Holland, 776 F.2d 470, 476 (4th Cir. 1985), vacated on

other grounds, 475 U.S. 1138 (1986). It therefore did not reduce the

government's burden of proof. See Truesdale v. Moore, 142 F.3d 749

(4th Cir. 1998) (holding that an instruction equating "reasonable

doubt" with "real doubt" did not improperly reduce the government's

burden of proof).

III.

Williams next argues, for the first time, that the indictment was

facially defective because, in count two, it charged him with "possessing," rather than "using" or "carrying," a firearm in connection with

a drug trafficking crime under § 924(c). Although an objection based

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on the sufficiency of an indictment can be lodged at any time, if it is

first raised on appeal, the "indictment . . .[is] construed more liberally

. . . and every intendment is then indulged in support of . . . sufficiency." United States v. Sutton, 961 F.2d 476, 479 (4th Cir. 1992);

United States v. Vogt, 910 F.2d 1184, 1200 (4th Cir. 1990). Moreover,

"where the post-verdict challenge to the indictment relates to the

absence of an element, the indictment will be held sufficient if it contains words of similar import." Id. at 1201 (quotation and citation

omitted).

To pass constitutional muster, an indictment must (1) indicate the

elements of the offense and fairly inform the defendant of the exact

charges and (2) enable the defendant to plead double jeopardy in subsequent prosecutions for the same offense. Sutton, 961 F.2d at 479.

"One of the principal purposes of an indictment is to apprise the

accused of the charge or charges against him so he can prepare his

defense." United States v. Fogel, 901 F.2d 23, 25 (4th Cir. 1990).

The mere failure to track the precise language of a statute does not

without more, constitute error. See Sutton, 961 F.2d at 479 (finding

that failure to allege "scienter" in indictment is not fatal where defendant was not prejudiced in any manner); Vogt, 910 F.2d at 1201

(upholding sufficiency of indictment despite lack of specific mention

of the "defraud" element in the underlying charge). Notably, the Ninth

Circuit has recently rejected a claim identical to the one raised by

Williams. In United States v. Ruelas, 106 F.3d 1416 (9th Cir.), cert.

denied, 117 S. Ct. 2470 (1997), the defendant alleged that the indictment was insufficient because, in the body of the§ 924(c) count, it

stated that he "possessed," rather than "used or carried," a firearm.

Acknowledging that Bailey v. United States, 516 U.S. 137 (1995),

distinguished the term "possess" from the terms "use or carry," the

Ninth Circuit nonetheless upheld the indictment because its specific

reference to § 924(c) adequately informed the defendant of the elements of the charged offense. Ruelas, 106 F.3d at 1419. Moreover,

the court commented that "if [the defendant] believed he did not have

adequate notice of the elements of the 924(c)(1) offense, he should

have resolved any ambiguity by bringing an appropriate motion

before pleading guilty." Id.

Assessed under the more forgiving standard for post-verdict

review, Williams's claim of error fails. In challenging the indictment,

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Williams does not contend that its imprecision made him unable to

prepare an adequate defense, or to be aware of the charge against him,

or otherwise specifically impaired his ability to defend himself.

Instead, he simply points out the discrepancy and complains that it is

a fatal jurisdictional defect. Because he has demonstrated no prejudice

from the alleged imprecision, we reject his claim.

IV.

Williams next contends that the failure to arraign on a superseding

indictment requires a reversal. We disagree.

Williams was originally charged and arraigned on an indictment

alleging, inter alia, that he possessed a 9mm Smith and Wesson handgun during and in relation to a drug trafficking offense in violation

of § 924(c). Following his not guilty plea, a superseding indictment

was filed that modified the § 924(c) count by adding that he also possessed a .45 caliber handgun during the offense. Although it does not

appear that Williams was arraigned on the superseding indictment, the

record reveals that he was served with a copy the week before his

trial. He now claims that the failure to re-arraign constitutes reversible

error because it compromised his ability to defend himself.

A failure to arraign only warrants a reversal if it causes prejudice

or impairs a substantial right. Garland v. Washington, 232 U.S. 642

(1914). Williams has suggested no prejudice from the minor alteration

to the original indictment; his brief contains no arguments as to how

his defense was impaired or prejudiced. In light of the fact that the

superseding indictment merely added an additional handgun and Williams was notified of this modification, no reversible error was committed.

V.

Next, Williams challenges the district court's instruction on the

"use or carry" element of § 924(c) in view of Bailey v. United States,

516 U.S. 137 (1995). Without reiterating the instruction in full, it is

sufficient to note that the instruction clearly violated Bailey. As Williams did not object to the erroneous instruction at trial, he must dem-

 7
onstrate plain error to warrant a reversal or remand. Johnson v. United

States, 117 S. Ct. 1544 (1997) (applying to comparably erroneous

instruction the plain error test of United States v. Olano, 507 U.S. 725

(1993)). Under the Olano/Johnson plain error analysis, Williams must

show that (1) there is error, (2) the error is plain, and (3) the error

affects substantial rights. Johnson, 117 S. Ct. at 1549. If all three conditions are met, we may then exercise our discretion to notice the forfeited error, but even then only if the error "seriously affects the

fairness, integrity, or public reputation of judicial proceedings." Id. In

applying the final, discretionary step, we consider whether the trial

evidence was "overwhelming" and "essentially uncontroverted." Id. at

1550. "Central to this inquiry is a determination of whether, based on

the record in its entirety, the proceedings against the accused resulted

in a fair and reliable determination of guilt." United States v. Cedelle,

89 F.3d 181, 186 (4th Cir. 1996).

Accepting that Williams satisfies the first two prongs and assuming

that such an erroneous "use" instruction affects substantial rights, we

would yet decline to exercise our discretion to notice the error. Looking to the evidence adduced at trial, Pedro Gonzalez and Hendrick

both testified without contravention that Williams carried a firearm in

his holster when he conducted drug transactions. Hendrick specifically recounted that, when he purchased crack from Williams in April

1995, Williams was carrying a handgun. In addition, uncontradicted

evidence also established that, just prior to his arrest and upon his

return from selling crack, Williams placed a firearm that he had been

carrying beneath his seat in the Oldsmobile. The police recovered this

firearm during their search of the vehicle.

The above evidence was not rebutted at trial and is not challenged

on appeal. In fact, Williams acknowledges that most of the evidence

presented supports the finding that he carried a handgun in relation to

a drug trafficking offense. Notwithstanding, he maintains that a

remand is necessary because at least one piece of evidence--Pedro

Gonzalez's testimony that he went recreational shooting with Williams in Ohio--when viewed alone, could not support a conviction

under § 924(c).

This testimony, however, does not controvert or even call into

doubt the considerable testimony that Williams carried a firearm dur-

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ing and in relation to a drug trafficking crime. As was the case in

Johnson, the evidence at trial in this case was"overwhelming" on the

"carry" element, 117 S. Ct. at 1550, and "permit[ted] no other conclusion," Cedelle, 89 F.3d at 186, but that Williams was guilty. Under

these circumstances, exercising our discretion not to notice the

instructional error will not result in a miscarriage of justice or affect

the fairness or integrity of the proceedings. "Indeed, it would be the

reversal of a conviction such as this which would have that effect."

Johnson, 117 S. Ct. at 1550.

VI.

Next, Williams challenges the district court's attribution of drug

quantities for purposes of determining his base offense level. He

maintains that the evidence does not support the district court's conclusion, made without factual findings, that he be held accountable for

over 13,000 kilograms of marijuana equivalency when, in fact, the

police only found in his possession 2.9 grams of crack cocaine and

.7 grams of cocaine powder, which would be equivalent to only

around 58 kilograms of marijuana.

Because the approximation of drug quantities is so critical a factor

in determining sentence length for drug trafficking offenses, specific

requirements for making and reviewing factual determinations of drug

quantities apply. If the defendant objects to a quantity recommended

in a presentence report, the district court must make an independent

resolution of the factual issues raised by the objection. U.S. Sentencing Guidelines Manual § 6A1.3 (1997); United States v. Gilliam, 987

F.2d 1009, 1013 (4th Cir. 1993). The court can do this either by a separate recitation of its findings as to the disputed matters or by express

adoption of the findings contained in the presentence report. United

States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991).

If the defendant's objection to a particular PSR finding fails to

articulate the reasons why the facts asserted are unreliable, untrue or

inaccurate, the district court need not undertake an in-depth review.

Without an affirmative suggestion that the PSR recommendation is

unsound, the court is "free to adopt the findings of the [PSR] without

more specific inquiry or explanation." United States v. Terry, 916

F.2d 157, 162 (4th Cir. 1990). In other words, "the Government car-

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ries its burden if a defendant fails to properly object to a recommended finding in a presentence report that the court determines to

be reliable." Gilliam, 987 F.2d at 1013. If the district court makes

adequate findings regarding drug quantity, those findings stand unless

determined on review to be clearly erroneous. See United States v.

Cook, 76 F.3d 596, 604 (4th Cir. 1996).

In this case, the PSR recommended that 712.5 grams of cocaine

base and 113.4 grams of cocaine powder be attributed to Williams.

429 grams of the cocaine base and the entire amount of cocaine powder was said to be derived from "an unprotected statement" given out

of court by Pedro Gonzalez detailing Williams's drug activities in

both Pennsylvania and North Carolina.1 Testimony from trial provided the asserted basis for the remaining 283.5 grams of cocaine

base.

At sentencing, Williams objected to the attribution of any drug

amount above the quantities actually recovered by the officers at the

scene of his original arrest. He also challenged the estimates as speculative and uncorroborated. The district court denied Williams's objections stating:

I tried the case and I have reviewed my notes on the amount,

and the Court is satisfied without any further consideration

of this matter that there was an equivalency of more than ten

thousand kilos of marijuana. And there was an amount of

cocaine base and cocaine powder that totaled more than

13,000. So that is correct.

(J.A. at 240-41.)

By its literal import, this statement did not represent an express

adoption by the district court of the PSR's findings regarding drug

quantities. That, however, does not necessarily prevent a determination upon review that the district court's sentencing process involved

an implicit adoption of the PSR findings. In certain situations,

_________________________________________________________________

1 The PSR did not mention when Pedro Gonzalez made this statement,

to whom he made it, the circumstances under which it was made, or how

it came to the attention of the probation officer.

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depending upon the context, a sentencing court's denial of an objection may properly be taken as an implicit adoption of the findings at

which the objection was aimed. See United States v. Walker, 29 F.3d

908, 912 (4th Cir. 1994). In such a situation, confident appellate

review may be undertaken on the basis of such an implicit adoption.

Regrettably, however, this is not such a case. Rather than merely

denying Williams's objections after reviewing the PSR findings

(which likely would have been sufficient in light of the general nature

of the objections), the district court explained that, based on its notes

and recollection from the trial, the drug amount suggested in the PSR

conformed to the court's belief that the drug quantity met the threshold equivalency level of 10,000 kilograms of marijuana.2 The district

court's identification of the source of its determination could not reasonably be construed as an adoption of the PSR findings because the

drug amounts in the PSR were derived predominantly from Pedro

Gonzalez's unprotected out-of-court statements that were not introduced at trial. Because the district court expressly indicated reliance

on factual predicates that differed from the underlying findings in the

PSR, we cannot fairly imply an adoption of the PSR findings by the

court. See United States v. Truesdale, 23 F.3d 878, 887 (4th Cir.

1993) ("[T]here seems to be no doubt that the district court could

have expressly found that there was insufficient bases for th[e] objections. The problem is that the court made no such findings.");

Morgan, 942 F.2d at 246 (indicating that the mere imposition of a

sentence consistent with the presentence report does not satisfy the

requirement of an express finding).

Without being able to rely on the factual findings in the PSR and

lacking specific findings by the district court based upon the trial testimony (and court notes) generally identified as the court's source, it

_________________________________________________________________

2 Based on the drug quantity table in the U.S. Sentencing Guidelines

Manual § 2D1.1(c) (1997), a drug quantity of between 10,000 and

30,000 kilograms of marijuana or its equivalency warrants an offense

level of 36. Relying on its trial notes, the district court indicated that it

was satisfied that the combined amount of cocaine base and cocaine

powder translated into a total of more than 13,000 kilograms of marijuana. Citing both trial testimony and out-of-court statements, the PSR

suggested a total marijuana equivalency of 14,272.68 kilograms. Thus,

under either approach, the resulting base offense level was 36.

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is impossible for us to review the district court's quantity findings for

clear error. We might assume from the court's general reference that

it accepted all of the trial testimony about the scope of Williams's

drug dealings. But we cannot safely do so, and if any less than all

were assumed, it is not manifest from the record what was accepted

and what rejected in coming up with the final quantities found. For

discrepancies and possible overlaps in the whole range of testimony

abound. For example, Pedro Gonzalez testified that Williams transported two blocks or "cookies" of crack less than an inch thick,

weighing about 10 ounces to North Carolina. Similarly, Hendrick testified that he saw Williams with a block of crack several inches thick

weighing approximately half of a kilogram (17.6 ounces). From the

record, it could not confidently be determined whether the district

court credited one or both of these witnesses's statements and, more

importantly, whether the court treated the amount cumulatively (27.6

grams) or as merely describing the same block of cocaine.3

In a situation such as this, when the district court has not expressly

or by implication adopted the PSR findings nor made sufficiently

detailed independent findings on the critical issue of drug quantity for

sentencing purposes, we have no recourse but to remand for adequate

findings. See United States v. Chambers, 985 F.2d 1263, 1269 (4th

Cir. 1993).4

VII.

Finally, Williams challenges the district court's assessment of a

two-level enhancement for obstruction of justice. Because the facts

underlying this enhancement are undisputed and the claim involves a

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3 A brief review of the entire trial record would seem to support the

notion that the trial court must have treated Pedro Gonzalez's and Hendrick's testimony as describing separate and distinct cocaine amounts in

order to arrive at a figure of greater than a 13,000 kilogram marijuana

equivalency. Yet, in its brief, the government referred to testimony of

these two as describing the same cocaine and, thus, corroborating its

existence rather than establishing two, separate drug quantities.

4 In view of this conclusion, we do not reach Williams's further challenges to the reliability of Pedro Gonzalez's "unprotected statement" and

the district court's failure to estimate conservatively the drug quantities.

 12
purely legal issue, we review the district court's ruling de novo. See

United States v. Hicks, 948 F.2d 877, 884 (4th Cir. 1991).

Section 3C1.1 of the Sentencing Guidelines instructs that "[i]f the

defendant willfully obstructed or impeded . . . the administration of

justice during the investigation, prosecution, or sentencing of the

instant offense, increase the offense level by 2 levels." U.S. Sentencing Guidelines Manual § 3C1.1 (1997). The commentary to this section further explains the types of conduct that do and do not warrant

the enhancement. In providing "a non-exhaustive list of examples of

the types of conduct to which this enhancement applies," Application

Note 3 explains that, inter alia, the increase is triggered by conduct

that involves "escaping or attempting to escape from custody before

trial or sentencing; or willfully failing to appear, as ordered, for a

judicial proceeding." Id. App. Note 3(e) (emphasis added). Conversely, Application Note 4 offers a non-exhaustive list of the type of

conduct that "ordinarily do[es] not warrant application of this

enhancement but may warrant a greater sentence within the otherwise

applicable guideline range."5 Included in this list is conduct characterized as "avoiding or fleeing from arrest" unless the conduct recklessly

creates a substantial risk of death or serious bodily injury to another

person. Id. App. Note 4(d) (emphasis added);§ 3C1.2.

In this case, Williams was arrested, handcuffed, and escorted to a

deputy's car. The officers then placed him in the back seat, in a compartment separated from the front seat of the car by a partition. After

being detained in the vehicle and during the officers' search of his

Chevy Blazer, Williams managed to escape. He was apprehended the

following morning, having cut through his handcuffs and hidden them

under his sleeves.

Williams argues that his conduct falls within a sort of "gray area"

created by the wording of the two application notes. Although he had

already been arrested, Williams contends that he was not truly in custody within the intent of Application Note 3(e) because his escape

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5 Because this case turns on the interpretation of App. Note 3(e), we

make no comment regarding whether the inclusion of the term "ordinarily" in App. Note 4 confers more discretion upon the courts when evaluating conduct of the type described therein.

 13
was essentially part of the arrest episode. He notes that many of the

cases applying the flight-from-custody enhancement deal with escape

attempts from jail or failures to appear at required court hearings--all

events transpiring well after an arrest was fully consummated. See,

e.g., United States v. Miller, 77 F.3d 71 (4th Cir. 1996) (applying

enhancement where defendant fled state before sentencing); United

States v. Melton, 970 F.2d 1328 (4th Cir. 1992) (applying enhancement where defendant attempted to escape from county jail by kicking deputy). According to Williams, "a defendant's flight is

considered `from arrest' where it can be attributed to the `instinctive

flight of a suspect who suddenly finds himself in the power of the

police.'" United States v. Mondello, 927 F.2d 1463, 1466 (9th Cir.

1991) (interpreting § 3C1.1 before the 1991 amendments that added

the commentary at issue in this case).

To support his position, Williams relies predominantly on a Seventh Circuit decision that upheld a district court's refusal to apply the

obstruction of justice enhancement under arguably similar circumstances. Draves v. United States, 103 F.3d 1328 (7th Cir.), cert.

denied, 117 S. Ct. 2528 (1997). In Draves , police officers went to the

defendant's home to execute two arrest warrants. The officers first

located the defendant, informed him of the charges against him, handcuffed him, and placed him in the back seat of their car. Leaving the

defendant in the vehicle, the officers then initiated their search for the

other party. While the officers were attending to the other party, the

defendant seized the opportunity to flee from the arresting officers on

foot. The defendant was apprehended a mere three houses away from

the scene of arrest. Id. at 1336-37.

The district court in Draves denied an obstruction of justice

enhancement on these facts, finding that "for all practical purposes

when Mr. Draves fled this arrest was still in progress." Id. at 1337.

In affirming the district court, the Seventh Circuit declared that

"[o]bstruction of justice cases distinguish panicked, instinctive flight

from calculated evasion." Id. (citations omitted). Rejecting the government's request for a bright-line test, the court held that "Draves'

conduct had not, due to its duration or acts occurring in the course

thereof, ripen[ed] into a willful attempt to impede or obstruct the

administration of justice." Id. (internal quotations omitted). Observing

that Application Notes 3 and 4 are not mutually exclusive, the court

 14
applied a discretionary test in which "[c]ircumstances may arise . . .

where formal custody is present, yet the defendant's action is best

viewed as the instinctive flight of a suspect who suddenly finds himself in the power of the police." Id. (internal quotations omitted).

Accordingly, the court held that the proper yardstick for assessing the

applicability of § 3C1.1 is "whether defendant's departure from the

scene of the arrest was spontaneous or calculated." Id. at 1338.

To the extent that the Draves opinion counsels against applying the

enhancement where the escape occurs contemporaneously with the

arrest episode, we respectfully disagree. Guidelines commentary is

binding unless it violates federal law or otherwise conflicts with a

plain reading of the guideline. Stinson v. United States, 508 U.S. 36

(1993). In this instance, the language of Application Note 3(e) clearly

states that the enhancement applies to escape or attempts to escape

"from custody." On the other hand, Application Note 4(d) provides

that it is not intended to apply to avoidance or flight "from arrest." As

Williams does not suggest that either provision violates federal law

or is inconsistent with § 3C1.1, we may only apply the commentary

as written. United States v. Banks, 130 F.3d 621, 625 (4th Cir. 1997),

cert. denied, 118 S. Ct. 1400 (1998).

Williams's assertion that we should interpret the term "from custody" to exclude conduct occurring during the arrest episode, even if

technically arising after formal arrest, is unpersuasive. We read the

commentaries as recognizing a clear dichotomy between the state of

being arrested and that of being in custody. The two states are wellsettled as separate ones in the law. While whether one or the other

exists in particular circumstances may create difficult factual issues,

we do not believe the commentaries permit their conversion into the

legal hybrid, "custody during an arrest episode," for which Williams

contends. The problem is only to determine a matter that it is possible

to determine under the law: whether at the critical time an arrest had

been accomplished and a state of legal custody had begun. See United

States v. Draper, 996 F.2d 982, 985-86 (9th Cir. 1993) ("[F]or purposes of the obstruction guideline, `custody' need only involve some

degree of official control over a defendant such that a subsequent evasion amounts to more than mere `avoiding or fleeing from arrest.'").

Here, there was no legal error in the district court's conclusion that

on the undisputed facts Williams's escape was "from custody," not

 15
"from arrest." The obstruction of justice enhancement was therefore

properly imposed.

VIII.

For the reasons stated above, Williams's convictions and the application of a two-level enhancement for obstruction of justice are

affirmed. Because, however, the record is insufficient to permit a

meaningful appellate review respecting the amount of drugs attributed

to Williams for sentencing purposes, we vacate the sentence and

remand for resentencing consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART

AND REMANDED FOR RESENTENCING

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