IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-60712

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee - Cross-Appellant,

versus

RONALD JOSEPH CLAYTON,

Defendant - Appellant - Cross-Appellee.

_________________________________________________________________

Appeals from the United States District Court for the

Northern District of Mississippi

________________________________ _________________________________ April 12, 1999

Before JOLLY, WIENER, and PARKER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge

Ronald Joseph Clayton, former Chief Deputy Sheriff of DeSoto

County, Mississippi, stands convicted of violating the civil

rights of an arrested woman by kicking her in the head. He also

was convicted of making a false statement of material fact to the

FBI when he denied the use of unreasonable force during the

incident of arrest. On appeal, Clayton challenges the district

court’s denial of his motion for judgment of acquittal on the

grounds that the government had failed to establish venue.

Clayton also contends that the district court gave an improper2

modified Allen charge to th e jury. Finally, Clayton challenges

the sufficiency of the evidence supporting his convictions.

The government cross-appeals. It contends that the district

court erred in failing to enhance Clayton’s offense level by two

levels, first, under § 3A1. 3 and, second, under § 3C1.1 of the

United States Sentencing Guidelines because Freeman was physically

restrained (handcuffed) during the time she was kicked , and

because Clayton obstructed the federal inv e stigation of the

incident by warning officers at t h e scene of the offense to keep

silent about what they saw.

We affirm each of Clayton’s convictions, and his sentence for

making a false statement of material fact. We vacate Clayton’s

sentence with respect to the civil righ ts conviction and remand

for resentencing.

I

We do not retry a case in the appellate court. We therefore

view the facts in the light most favorable to the verdict. We

wi ll very briefly state those facts. Clayton, during the drugrelated arrests of Jaefis Totten and Jennifer Freeman on

January 13, 1994, kicked Freeman in the head as she lay facedown

and handcuffed. Clayton was also charged with kicking Totten and

str iking him with a police-issued flashlight. On March 9, 1995,

during the course of a federal investigation of t he incident1 18 U.S.C. § 242.

2 18 U.S.C. § 1001.

3 conducted by the FBI, Clayton expressly denied kicking, striking,

or using force against the pair.

Some two years later, on May 22, 1997, the grand jury

indicted Clayton on one count of depriving Totten of his right to

be secure from unreasonable force by one acting under the color of

law, 1 one count of depriving Freeman of her right to be secure from

unreasonable force by one acting under the color of law, and one

count of making a false statement of material fact to the FBI. 2

The case was tried to a jury in July 1997. The jury, after

five and one-half hours of deliberating, informed the district

court that it was unable to reach a verdict on one of the charges.

The court gave the jury a modif i ed Allen charge, instructing it

to keep deliberating. The jury returned the split verdict, now

the subject of this appeal, forty-five minutes after the district

court gave the charge. The jury found Clayton guilty of count 2,

violating Freeman’s civil r ights and count 3, making a false

statement of material fact to the FBI. The jury, however,

acquitted Clayton of depriving Totten of his civil rights.

On October 15, 1997, the district court sentenced Clayton to

twelve months and one day imprisonment for the civil rights

conviction and twelve months and one day imprisonment for the4

false statement conviction. The district court ordered Clayton’s

sentences to be served concurrently. It also fined him a total of

ten thousand do llars, five thousand for each conviction. The

district court further ordered Clayton to be placed on supervised

release after his imprisonment for a term of three years.

Finally, in sentencing Clayton, the district court re jected the

government’s argument that under U.S.S.G. § 3A1.3 Clay t on’s

offense level should be adjusted upward by two-levels b ecause he

assaulted Freeman while she was handcuffed. The district court

also rejected the government’s recommendation for the two-level

obstruction of justice enhancement under U.S.S.G. § 3 C1.1 on the

grounds that Clayton obstructed the subsequent FBI investigation

of the in c ident when, at the scene of the offense, he threatened

the officers with t ermination unless they kept quiet about what

they had seen.

On appeal, Clayton argues that the district court erred in

d enying his motion for judgment of acquittal because the

go vernment failed to prove that venue for the indicted offenses

lay in the Northern Judicial District of Mississippi. Second,

Clayton contends that the district court’s modi fied A llen charge

was prejudicial and coercive. Finally, Clayton challenges the

sufficiency of the evidence.3 Viewing all the evidence in the light most favorable to the

government, we conclude that the government established that each

of Clayton’s charged offenses occurre d in the Northern Judicial

District of Mississippi. U nited States v. Leahy

, 82 F.3d 624, 633

(5th Cir. 1996)(citations omitted). There is no dispute that the

acts of unreasonable force underlying the charges against Clayton

occurred alo ng Highway 178, eastbound. FBI Agent John Lavoie

testified that Highway 1 78 is located in DeSoto County,

Mississippi. Similarly, the conversation forming the basis of the

false statement of material fact to the FBI also occurred in DeSoto

County, specifically, at the DeSoto County Sheriff’s Department.

Finally, Clayton himself admitted at trial that DeSo to County,

Mississip pi, is located in the Northern Judicial District of

Mississippi. In the light of this proof, it is unnecessary for us

to elaborate further on the other evidence establishing venue in

this case.

4 The evidence is clearly sufficient to support the civil

rights conviction. Three of the officers who witnessed Clayton

5 On cross-appeal, the government contends that because Freeman

was handcuffed when Clayton kicked her in the head, the dis trict

court erred in failing to enhance Clayton’s offens e level under

the victim restraint adjustment, U.S.S.G. § 3A1.3. The government

further contends that because Cla yton threatened officers with

termination if they reported the offense, the district court erred

i n refusing to apply the obstruction of justice adjustment,

U.S.S.G. § 3C1.1.

After a careful review of the record , we are satisfied that

the government adequately established venue of the charged

offenses. 3 We also find that the sufficiency of the evidence

supports Clayton’s convictions for violating Freeman’s civil

rights 4 and for making a false statement of material fact the FBI. 5kick Freeman in the back of the head testified that at the time of

assault, Freeman lay on the ground facedown, that she did not

resist arrest, and that she posed no threat of harm to the

officers. Officer Steve Bierbrodt testified that Freeman was

handcuffed during the offense. The three officers further agreed

that Clayton’s use of force in this manner was either unjustified

or without cause. In finding Clayton guilty beyond a reasonable

doubt, the jury must have credited this testimony over Clayton’s

explanation that he merely placed hi s foot between Freeman’s

shoulder blade and her neck, and that his actions were necessary to

put her under control so that she could be handcuffed. We find

this credibility determination well within the province of the jury

to make, and it is one that we will not disturb on appeal.

5 In support of Clayton’s false statement conviction, FBI Agent

Lavoie testified that in a March 9, 1995 interview, Clayton

explicitly stated that he had not struck nor kicked Freeman during

her January 13, 1994 arrest, and that in accordance with his handsoff policy, he did not interfere with his officers during the

course of an arrest. There was sufficient evidence--noted above in

footnote 4--that Clay ton’s statements to Agent Lavoie were false

and material. The jury could rationally conclude that they were

made with the specific intent to thwart the federal investigation

into his use of unreasonable force. S ee United Stat es v. Sidhu

, 130 F.3d 644, 650 (5th Cir. 1997)(citations omitted).

6 See Allen v. United States , 164 U.S. 492, 501 (1896).

6 We therefore turn to address Clayton’s remaining argument and the

arguments raised by the government on cross-appeal.

II

A

Clayton argues that each of his convictions should be

reversed because the district court’s modified Allen charge 6 was

both prejudicial and coercive. Specifically, Clayton contends

that the Allen charge was coercive because the district c ourt

alluded to sequestering the jury in the course of its7

deliberations. Clayton argues that the coercive effect of the

district court’s threat of sequestration is supported by the fact

that the jury returned a split verdict against him in only fortyfive minutes after receiving the instruction. Clayton further

argues that the Allen charge was prejudicial because no reference

was made to the government’s burden of proving the charges against

him beyond a reasonable doubt. Clayton therefore contends that

the instruction encouraged the jury to accept a level of proof

below a reasonable doubt.

B

Because Clayton failed to object to the jury charge at trial,

we review the district court’s modified Allen charge for plain

error, a very difficult standard to satisfy, indeed. D ouglas v.

United Serv. Auto. Ass’n.

, 79 F.3d 1415, 1424 (5th Cir. 1996) (en

banc)(citations omitted). Under the plain error standard,

forfeit ed errors are subject to review only where the errors are

“obvious,” “clear,” or “readily apparent,” and they affect the

defendant’s substantial rights. I d. ; United States v. Calverley

,

37 F. 3 d 160, 162-63 (5th Cir. 1994) (en banc), abrogated in part

by

, J ohnson v. United States , 117 S.Ct. 1544, 1549 (1997). We

will not exercise our discretion to correct the forfeited errors,

however, unless they “seriously affect the fairness, integrity, or

public reputation of the judicial proceeding.” C alverley

, 37 F.3d8

at 164 (citations omitted). Applying these standards to the

record before us, we do not find that the district court erred,

plain or otherwise, in giving the jury the modified Allen charge.

We permit district courts to give modified vers ions of the

Allen charge, so long as the circumst ances under which the

district court gives the instruction are not coercive, and the

content of the charge is not prejudicial. U nited States v. Heath

,

970 F.2d 1397, 1406 (5th Cir. 1992) (citations omitted). The

district court specifically instructed the jury, in part:

[I]f I dismissed you for the night –-it would be very

difficult at th is time to get accommodations for you.

I know several of you live pretty far away, so that

might be impractical but it is not i mpossible that you

could go home for the night and come back tomorrow if

you thought that would help, give you a fresh start

tomorrow.

Because nothing in this reco rd plausibly can be read to suggest

that the district court coerced the ju r y to reach its verdict by

threatening sequestration, we find no “clear” nor “obvious” error

in the charge. Nor do we find the jury’s return of a verdict

after only a forty-five minute deliberation, in and of itself, to

be proof that its verdict was coerced . Even under the more

stringent abuse of discretion standard, we have approved Allen

charges where the jury later delib erated for as short as twentyfive minutes. U nited States v. Scruggs

, 583 F.2d 238, 24 1 (5th

Cir. 1978) (citations omitted).9

We are also satisfied that the Allen charge was not

prejudicial. The district court, in its final jury charge,

admonished the jury at least eleven times that the government had

the burden of p roving Clayton’s guilt beyond a reasonable doubt.

The distri ct court also took care in its final charge to define

the term “reasonable doubt” and the phrase “proof beyond a

reasonable do ubt.” Given the district court’s constant emphasis

on the reason able doubt standard, the exclusion of the standard

f rom the Allen charge could not have prejudiced the jur y’s

understanding of the level of proof necessary to convict Clayton,

so as to have affected his substantial rights--the outcome of his

trial.

Even if we assu med plain error on the part of the district

court , Clayton can not show that the modified A llen charge

seriously affected the “fairness, integrity or public reputation”

of his trial. In the light of the jury’s discriminating verdict,

whereby Clayton was acquitted of one of the civil rights charges,

we cannot say that the district court pressured the jury into

returning guilty verdicts on the remaining counts that it

otherwise would not have reached.

In sum, Clayton has shown no plain error with respect to the

district court’s modified Allen charge.

III7 U.S.S.G. § 3A1.3 (1994) provi des that “if a victim was

physically restrained in the course of the offense, increase by 2

levels.”

10 A

We now turn to the government’s cross-appeal.

T he district court concluded that because Freeman had bee n

lawfully restrained (handcuffed) during the course of a legitimate

arrest--a restraint that was separate from and not done to

facilitat e the commission of the offense itself--the two-level

victim restraint adjustment, U.S.S.G. § 3A1.3, was not applicable. 7

In its cross-appeal, the government contends that the

district court erred in refusing to apply the victim restraint

adjustment to Clayton’s offense level. The government argues that

the district court’s interpretation of U.S.S.G. § 3A1.3 is

contrary to the plain language of the guideline, which provides no

exception for the “lawful” restraint of the victim. The

government further argues that application of the guideline was

warranted because Freeman was handcuffed when Clayton kicked her

in the head.11 B

The district court’s interpretation of the sentencing

guidelines is a conclusion of law that we review de novo. U nited

States v. Lister

, 53 F.3d 66, 69 (5th Cir. 1995 )(citations

omitted).

First, we find that the dis trict court’s interpretation of

U.S.S.G. § 3A1.3, although reason ed and well considered, is not

supported by the letter of the guideline. Section 3A1.3 simply

provides, with two exceptions tha t are inapplicable here, a twolevel enhancement to the defendant’s sentence if the victim was

physicall y restrained in the course of the offense. U.S.S.G.

§ 3A1.3 (“if a victim was physi c ally restrained in the course of

the offense , increase by 2 levels”). Furthermore, we think that

an underlying consideration in applying the guideline is that the

physical restraint of a victim during an assault is an aggravating

factor that intensifies the wilfulness, the inexcusableness and

reprehensibleness of the crime and hence increases the culpability

of the d efendant. It is true, as the district court concluded,

that Freeman was not handcuffed to facilitate the c ommission of

the offense against her--Clayton’s use of unreasonable force.

Nevertheless, Clayton took advantage of the restraint Freeman was

under as she lay on the ground, handcuffed. She posed not the

slightest threat to him in this condition. She could not defend12

herself against an assault, and could not flee from harm. Because

Clayton took advantage of this restraint and the partic ular

vulnerability of the victim, it seems to us that both the letter

and spirit of the guideline applies to impose an additional

sentence on Clayton , beyond the one mandated for his use of

unreasonable force. Especially in the light of the facts in this

case, we agree with the Fourth Circuit that the lawfulness of the

defendant’s restraint of the victim at the time the unr easonable

or excessive force occurs is not a concern implicated by U.S.S.G.

§ 3A1.3. S ee United States v. Evans

, 85 F.3d 617 (4th Cir. 1996)

(T ABLE

, TEXT IN WESTLAW, 1996 WL 2330 56) (rejecting argument

U.S.S.G. § 3A1.3 enhancement inapplicable because handcuffing

incidental to lawful arrest).

We therefore reverse the district court’s ruling, vacate the

sentence on count two, and remand for resentencing not

inconsistent with this opinion.

C

The government further argues that the d istrict court erred

in failing to add a two-level adjustment to Clayton’s offense

level for obstruction of justice under U.S.S.G. § 3C1.1, on the

grounds that Clayton threatened the witnesses prior to the federal

investigation of his civil rights offenses.8 U.S.S.G. § 3C1.1 (1994) provides that “if the defendant

willfully obstructed or impeded, or attemp ted to obstruct or

impede, the admin istration of justice during the investigation,

prosecu tion, or sentencing of the instant offense, increase the

offense level by 2 levels.”

13 The government argu es that at the scene of the January 13,

1994 ar rests, Clayton warned several officers that they did not

see anything and that if he had to worry about them telling what

they saw, he did not need them working for him. These threats,

the govern ment says, deterred officers from coming forward with

information to the FBI, thereby obstructing the federal

investigation . The government argues that the plain language of

U.S.S.G. § 3C1.1, which speaks of conduct occurring durin g an

investigation, 8 does not actually require the attempt to obstruct

justice to occu r during the federal investigation. It is

sufficient if Clayton’s threats were made for the purpose of

obstructing the administration of justice. Relying on United

States v. Barry , 938 F.2d 1327, 1334 n.8 (D.C. Cir. 1991), the

government argues that in 1990, the Sentencing Commission amended

t he commentary to U.S.S.G. § 3C1.1 to extend application of th e

guideli ne to conduct made unlawful by the federal obstruction of

justice statutes, 18 U.S.C. §§ 1501-1516. This amendment, the

government argues, “implies that the Sentencing Commission did not

intend to bar consideration of atte mpts to obstruct the

administration of justice solely because the obstruction occurred9 Application not e 3 to U.S.S.G § 3C1.1 (1994) reads as

follows:

14 before the commencement of the investigation of the offense.”

Finally, although the government concedes t hat Fifth Circuit

precedent limits application of U.S.S.G. § 3C1.1 to conduct

occurring “duri ng the investigation of the instant offense,” s ee

United States v. Luna

, 909 F.2d 119, 120 (5th Cir. 1990), United

States v. W ilson , 904 F.2d 234, 236 (5th Cir. 1990), the

government contends that because the 1990 amendments post-date

these cases, the 19 90 amendments--not our cases--provide the

authoritative interpretation of the guideline.

D

We cannot agree with the government’s proposed application

of U.S.S.G. § 3C1.1. The plain language of U.S.S.G. § 3C1.1

(1994) provides that “if the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of

justice during the investigation

. . . of the instant offense,

increase the offense level by 2 levels.” (Emphasis added.) We do

n ot dispute that the 1990 amendments extended the application of

U.S.S.G. § 3C1.1 to conduct prohibited by the federal obstruction

of justice statutes. S ee U.S .S.G. § 3C1.1, comment.

(n.3(i))(1994) (noting enhancement applies to conduct prohibited

by 18 U.S.C. §§ 1501-1516.) 9 Indeed, we have previously heldThe following is a non-exhaustive list of examples of the

type of conduct to which this enhancement applies . . .

(i) conduct prohibited by 18 U.S.C. §§ 1501-

1516.

Thi s adjustment also applies to any other obstructive

conduct in respect to the official investigation

, prosecution, or sentencing of the instant offense where

there is a separate count of conviction for such conduct.

(Emphasis added.)

15 generally that conduct prohibited by 18 U.S.C. § 1512 triggers the

applica tion of U.S.S.G. 3C1.1. S ee United States v. Greer

, 158

F .3d 228, 236-37 (5th Cir. 1998), c ert. denied

, 119 S.Ct. 1129

(1999); United States v. Graves , 5 F.3d 1546, 1555 (5th Cir.

1993), cert. denied

, 511 U.S. 1081 (1994); United States v.

Pofahl

, 990 F.2d 1456, 1482-83 (5th Cir. 1993), cert. denied

, 510

U.S. 996 (1993). Furthermore, we note specifically that

§ 1512(b)(3) criminalizes intimidation or threats made with the

intent to “hinder, delay, or prevent the communication t o a law

enforcement officer or judge of the United States of information

relating to the commission or possible commission of a Federal

offense

. . . .” Thus, it would seem that vis-à-vis application

note 3(i) , which incorporates by reference § 1512(b)(3), the

guideline may be applied to conduct occurring before an

investigation begins.

Consequently, we ackn owledge that there does exist an

apparent conflict between the plain language of U .S.S.G. § 3C1.1

and application note 3(i) that must be re solved. In resolving16

such inconsistenc ies, we treat commentary to a guideline as akin

to a federal agency’s interpretation of its own legislative rules,

and it is therefore given controlling weight when interpreting and

applying a particular guidelin e. Stinson v. United States , 508

U.S. 36, 44-45 (1993). The Supreme Court has made clear, however,

that “if the commentary and the guideline it interprets are

inconsistent, in that following o ne will . . . violat[e] the

dictates of the other, the Sentencing Reform Act itself commands

compl iance with the guideline.” I d. at 43 (citing 18 U.S.C.

§§ 3553(a)(4), (b)); United States v. Ashburn

, 20 F.3d 1336, 1340

(5th Cir. 1994), cert. denied

, 514 U.S. 111 3 (1995). S ee also

United States v. Oritz-Granados

, 12 F.3d 39, 42 (5th Cir. 1 994)

(citations omitted).

In an y event, it seems to us the apparent conflict between

U.S.S.G. § 3C1.1 and its 1990 commentary can be reconciled without

declaring which must prevail over the other in this instance. In

short, the commentary properly interpreted creates no confl ict

with the guideline. From the language of application note 3(i),

see footnote 9, supra

, at 15, it does not automatically follow

that any and all conduct prohibited by the obstruction statutes

requires the appl ication of the guideline. Furthermore, the

pro per application of the commentary depends upon the limits--or

breadth--of authority found in the guideline that the commentary1 0 We note that our interpretation of U.S.S.G. § 3C1.1 is

inconsistent with other circuits who have previously addressed this

issue. S ee United States v. Lallemand

, 989 F.2d 936, 938 (7th Cir.

17 modifies and seek s to clarify. Here, the guideline specifically

limits applicable conduct to that w hich occurs d uring an

investigation; application note 3(i) expressly provides that it is

describing only a type of conduct that is subject to the

guideline. We therefore conclude that conduct that violates 18

U.S.C. §§ 1501-1516 warrants application of U.S.S.G. 3C1.1 only

when such conduct occurs, in the words of the guideline, during an

investigation of the defendant’s instant offense. We agree with

the Tenth Circuit that the plain language of U.S.S.G. § 3C1.1

explicitly contemplates this temporal or nexus requirement. C f.

United St ates v. Gacnik , 50 F.3d 848, 852-53 (10th Cir. 1995)

(conduct undertaken prior to investigation does not fulfill nexus

requirement enunciated in U.S.S.G. § 3C1.1) (citations omitted)

and United States v. Lister

, 53 F.3d 66, 71 (5th Cir. 1995)

(“obstruction of justice [adjustment] involves . . . a temporal

requirement. . . .”).

We also find that our reading o f § U.S.S.G. § 3C1.1 is

entirely consistent with th e Sentencing Commission’s most recent

cla rification of the guideline–-a clarification, we add, that

takes precedent over prior conflicting judicial interpretations.

Stinson

, 508 U.S. at 46. 10 In 1998, the Sentencing Commission1993) (noting “obstruction of justice can be set in train before

investigation begins”); United States v. Barry

, 938 F.2d 1327,

1333-34 (D.C. Cir. 1991) (applying U.S.S.G. § 3C1.1 enhancement to

conduct occurring prior to investigation or prosecution of offense

of conviction).

11 The 1998 Amendments were effective November 1, 1998.

12 Amendment 581 provides in pertinent part:

The amendment also clarifies the temporal element of the

obstruction guideline ( i.e

., that the obstructive conduct

must occur during the investigation, prosecution, or

sentencing of the defendant’s offense of conviction).

U.S. S ENTENCING G UIDELINES M ANUAL

, Supplement to Appendix C, Amendment

581 (1998).

18 amended the commentary to U.S.S.G. 3C1.1 expressly to provide,

inter alia

, that “[the obstruct ion] adjustment applies if the

defendant's obstructive conduct

. . . oc curred during the course

of the investigation, prosecution, or sentencing of the

defendant's instant offense of conviction . . . .” 1 1 U.S.S.G.

§ 3C1.1, comment. (n.1) (1998). The purpose of the 1998 amendment

to application note one was to clarify the point that we have made

here, that U.S.S.G. § 3C1.1, indeed, includes a “ temporal

element.” U.S. S E NTENCING G UIDELINES M ANUAL

, Supplement to Appendix

C, Amendment 581 (1998). 12 To be sure, we are bound by this

amended commentary, Stinson

, 508 U.S. at 46, and our authority to

give it recognition retroactively is without question. U nited

States v. Anderson

, 5 F.3d 795, 802 (5th Cir. 1993), cert. denied

,

510 U.S. 1137 (1994) (citations omitted). Furthermore, in the1 3 In reaching this end we no te that the current, modified

version of application note 3(i) is found in application note 4(i)

of the 1998 obstruction of justice enhancement, U.S.S.G. § 3C1.1

(1998). Application note 4(i) provides in part:

The following is a non-exhaustive list of examples of the

types of conduct to which this adjustment applies. . .

(i) other conduct prohibited by the obstruction of

justice provisions under Title 18, United State s Code

( e.g. , 18 U.S.C. §§ 1510, 1511).

Thi s adjustment also applies to any other obstructive

conduct in respect to the official investigation,

prosecution, or sentencing of the instant offense where

there is a separate count of conviction for such conduct.

U.S.S.G. § 3C1.1, comment. (n.4) (1998). Without question,

applica tion note 4(i) poses the same potential conflict with the

plain language of U.S.S.G. § 3C1.1 as does note 3(i). We therefore

emphasize that notwithstanding our repeated reference to the 1990

commentary and U.S.S.G. 3C1.1 (1994), our holding today is not

limited in application to this dated version of the obstruction of

justice enhancement.

19 light of the 1998 amendments, our earlier cases interpreting

U.S.S.G. § 3C1.1 remain binding authority. S ee Luna

, 909 F.2d at

120, Wilson , 904 F.2d at 236.

Thus, in sum, we cannot say that Clayton’s conduct justifies

application of U.S.S.G. 3C1.1. Although it is clear that Clayton

took im

m ediate steps to suppress information concerning the

incident by intimidating and thre atening the officers at the

scene, there is no evidence that Clayton continued thes e threats

once the federal investigation of his case began. We therefore

reject the gover nment’s argument for application of the

obstruction of justice enhancement. 1320 IV

For the foregoing reasons, each of Clayton’s judgments of

conviction is affirmed. We AFFIRM the sentence with respect to

count three, we VACATE Clayton ’s sentence with respect to count

two, and REMAND for resente ncing on that count in a manner not

inconsistent with this opinion.

CONVICTIONS AFFIRMED; SENTENCE VACATED in part;

REMANDED for resentencing.21

WIENER, Circuit Judge, specially concurring.

I concur in the foregoing opinion, including its analysis of

U.S.S.G. § 3C1.1 in sections I IIC and D and its conclusion that

the sentence enhancement provisions of § 3C1.1 are inapplicable to

obstructive conduct that occ urs before the commencement of an

investigation. Nevertheless, I write separately to express my

consternation with what I perceive to be absurd results produced

by that rule, for which perception the instant case could well be

Exhibit I: A high ranking county law enforcement officer blatantly

commits a federal crime in full view of several subordinate

officers (who are presumably at-will employees) and immediately

threatens them with loss of employment if they break the unwritten

“code of silence” eith er by reporting the crime or responding

truthfully to investigatory questions about the crime; yet because

the perpetrator’s obstructive conduct at the scene of the crime of

necessity predates the commencement of any investigation, his

sentence is immune from enhancement for obstruction of justice.

I reluctantly agree that this resul t is mandated by the

Sentencing Commission’s 1998 amendment of the co mmentary to §

3C1.1

—— specifically U.S .S.G. § 3C1.1, comment. (n.1) (1998) ——

and the explanation contained in U.S. Sentencing Guideline Manual,

Supplement to Appendi x C, Amendment 581 (1998) that “the22

obstructive conduct must occur during the investigation,

prosecution, or sentencing of the defendant’s offensive

conviction.” I just cannot fathom why that should be!

The plain language of § 3C1.1 c learly does not command such

a bizarre result under any known rules of interpretation. Whether

examined under legal canons of stat utory interpretation or plain

English rules of syntax, the phrase “during the investigation”

should be read to modify the immediately preceding phrase,

“administration of justice,” not the more remote clause (“the

defendant willfully... attempted to obstruct or impede”). When §

3C1.1 is given such a faithful reading, Clayton’s war ning to his

deputies immediately after the completion of his criminal conduct

was obviously and specifically intended to obstruct or impede the

facet of the administration of justice that would take place

during the investigation of his offense (and likely during

prosecution and sentencing as well). Indeed, if the subject

Guideline were meant t o be applied as the Sentencing Commission

now inst ructs through its 1998 amendments, why was it not

originally written to read:

If th e defendant, during the investigation,

prosecution, or sentencing of t he instant

offense, willfully obstructed or impeded, or

a ttempted to obstruct or impede, t h e

administration of justic e, increase the

offense level by 2 levels.23

Such a rearrangement of the various clauses and phrases of this

directi ve would dispel any doubt and justify the inclusion of a

“temporal element.” As it stands, though, the plain wording of

the Guideline s hould make the enhancement applicable to Clayton.

S till, I concede that the 1998 amendments condemn the actual

languag e of § 3C1.1 to the dustbin of careless drafting (or

careless reading) by construing that wording to innoculate the

obstructer’s sentence from being en hanced when his obstructive

conduct precedes the commencement of an investigation.

Inasmuch as I am aware of nothing in the legislative history

of this Guidelin e that reflects an intent of Congress to exempt

obstructive conduct like Clayto n’s solely on the basis of timing

vis-a-vis the commencement of an invest igation, I urge that the

Sentencing Commission, or the Congress itself, either fix the

problem or explain this aberr ation for the benefit of sentencing

courts and those of us who must review their work on appeal.

Please enlighten us all: Is the panel’s analysis in the foregoing

opinion simply wrong? If not, what policy dictates the Sentencing

Commissions’s interpret ation which, I submit, produces such an

anomalous result?