In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3739

United States of America,

Plaintiff-Appellee,

v.

Frank W. Simmons,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 99 CR 122--Rudolph T. Randa, Judge.

Argued March 29, 2000--Decided June 13, 2000

 Before Flaum, Ripple and Kanne, Circuit Judges. 

 Kanne, Circuit Judge. Pursuant to a plea

agreement, Frank Simmons agreed to cooperate with

the government and testify at the trial of Dwayne

Reed. Simmons testified at Reed’s trial, which

ended in a mistrial in January 1999. For his

cooperation, Simmons received a six-level

downward departure from the applicable sentencing

range of the Sentencing Guidelines, resulting in

a 55-month decrease in his sentence.

 When Reed was retried, the district court

ordered Simmons to testify again. Simmons refused

to testify in the second trial, claiming that the

government had reneged on a commitment made at

his sentencing to grant him additional time off

his sentence for his continued cooperation. The

district court held Simmons in contempt for his

refusal to testify, and found him guilty of

criminal contempt at a bench trial in September

1999. At sentencing, the district court departed

eight levels upward from the applicable

Guidelines sentencing range, increasing his

sentence from the range of 18-24 months to 46-57

months, then sentenced him to 57 months. Simmons

appeals the district court’s denial of his motion

to dismiss the criminal contempt charge on the

basis of Simmons’s "good faith" defense and the

district court’s decision to depart from the

applicable sentencing range. We affirm the

decisions of the district court.
I. History

 Simmons was arrested on July 2, 1998, shortly

after he and two other men robbed a First

Municipal Credit Bank in Milwaukee, Wisconsin.

After his arrest, Simmons made a statement to

authorities pursuant to a proffer agreement in

which he provided information about individuals

with whom he had previously performed bank

robberies. One of these robberies was committed

at Educator’s Credit Union in Milwaukee on

September 8, 1997, with the aid of two other men,

one of whom was Dwayne Reed. During this robbery,

Reed controlled the lobby by brandishing a

weapon, while Simmons hurdled the bank counter

and gathered money from the tellers.

 Simmons pleaded guilty on November 17, 1998, to

the First Municipal Credit Bank robbery pursuant

to a plea agreement with the government. The plea

agreement required Simmons to cooperate "fully

and completely" with the government’s prosecution

of the accomplices whom Simmons named in his

proffer. While awaiting his own sentencing, Reed

was arrested, and Simmons was called to testify

as a prosecution witness at Reed’s trial. Simmons

testified against Reed, but the trial ended in a

hung jury and a mistrial was declared on January

6, 1999.

 On March 24, 1999, Simmons was sentenced for

his own bank robbery conviction. Pursuant to the

plea agreement, the government requested that

Simmons receive a six-level downward departure

from the applicable sentencing range based on the

substantial assistance that he provided to the

government. The district court granted the

government’s request and departed six levels

downward from the applicable sentencing range,

reducing the range from 151-188 months to 92-115

months. The court sentenced Simmons to 96 months

in prison followed by three years supervised

release. At the sentencing hearing, the

government noted that the Reed prosecution

resulted in a mistrial and suggested that it

would call Simmons again as a witness in the

retrial of Reed. Counsel for the government

stated that, if Simmons continued to testify

truthfully and reliably, "I anticipate there

would be a further motion to this court,"

apparently to reconsider Simmons’s sentence, at

which point the government felt that "[Simmons]

would be entitled to additional credit."

 Dwayne Reed’s retrial began on June 7, 1999. By

this time, however, Simmons no longer wanted to

testify against Reed. Despite Simmons’s wishes to

the contrary, the district court ordered Simmons

to testify. Simmons initially refused to testify
and asked to speak with his attorney. The

district court warned Simmons that he could be

found in contempt on the basis of his refusal to

testify and subjected to additional penalties.

After speaking with his client, Simmons’s

attorney, Scott Phillips, asked the government

whether Simmons would be entitled to additional

credit in exchange for his testimony. The

government responded that Simmons would not

receive additional credit and that there would be

"no deal" at that point. Simmons believed that by

this action, the government had reneged on the

plea agreement, and he reiterated his refusal to

testify. The district court repeated that Simmons

would be found in contempt if he refused to

testify, but Simmons refused. On this basis, the

government asked that Simmons be declared an

unavailable witness, and Simmons’s testimony from

the first trial was read into evidence at the

Dwayne Reed retrial. After his refusal to testify

at the retrial, Simmons wrote a letter to Reed

informing Reed that he had refused to testify or

cooperate with the government in Reed’s

prosecution. Reed presented this letter at the

retrial to dispute the credibility of Simmons’s

testimony. This letter stated in part: "Say man

check this out. I told them people fuck that

shit. . . . never can I help them people take

your life like that. . . . Wayne, like I said

fuck them honkies I told them people I aint with

it and that’s for real. Take care." The jury

found Reed guilty of bank robbery.

 On June 16, 1999, the district court certified

Simmons for contempt and set a date for a jury

trial. Shortly thereafter, Simmons filed a motion

to dismiss the criminal contempt charge because

his refusal to testify stemmed from his good

faith belief that the government had reneged on

their plea agreement. Immediately prior to trial,

the government moved in limine to prevent Simmons

from presenting evidence of this good faith

defense. The district court found that its order

to testify had been clear and that Simmons had

not indicated any inability to comply. On this

basis, the court found that the good faith

defense had no merit as a matter of law, and the

court granted the government’s motion in limine

and denied Simmons’s motion to dismiss. Simmons

then waived his right to jury trial. On September

2, 1999, the district court conducted a bench

trial, and Simmons was found guilty of criminal

contempt.

 Simmons was sentenced on October 15, 1999. At

sentencing, the district court accepted the

computation of the pre-sentencing report ("PSR"),

which applied United States Sentencing Guidelines

sec. 2J1.5(a), failure to appear as a material

witness (as directed by sec.sec. 2X5.1 and
2J1.1), and sec. 2J1.5(b), substantial

interference with the administration of justice,

to reach a total offense level of nine. Simmons’s

criminal history category was V, which with his

total offense conduct, created an applicable

Guidelines range of 18-24 months. The government

requested that the district court depart upward

from the applicable range because Simmons’s

knowing refusal to testify took his conduct

outside the heartland of conduct contemplated by

sec. 2J1.5(a). The district court agreed, and

found that Simmons’s refusal to testify, as well

as his change of heart evidenced by his letter to

Reed, removed Simmons’s conduct from the range of

activity contemplated by the Guidelines.

Accordingly, the court determined that an upward

departure in the total offense level was

appropriate, and the court enhanced Simmons’s

total offense level eight levels, increasing the

applicable sentencing range to 46 to 57 months.

The court sentenced Simmons to 57 months

imprisonment, to be served consecutively to his

term of imprisonment for bank robbery.

II. Analysis

 On appeal, Simmons raises two issues. First, he

contends that the court erred in denying his

motion to dismiss the criminal contempt charge on

the basis of his good faith defense and in

granting the government’s motion in limine, which

denied Simmons the right to raise this defense at

trial. Second, he argues that the court erred in

departing upward from the applicable sentencing

range. We review de novo the district court’s

denial to allow a defendant to raise a proffered

defense, a question of law. See United States v.

Santiago-Godinez, 12 F.3d 722, 726 (7th Cir.

1993). We review a district court’s decision to

depart for abuse of discretion and accept the

findings of fact underlying such a departure

unless clearly erroneous. See United States v.

Cruz-Guevara, 209 F.3d 644, 647 (7th Cir. 2000);

United States v. Wilke, 156 F.3d 749, 753 (7th

Cir. 1998). A district court’s determination of

the extent of a departure is discretionary, see

United States v. Leahy, 169 F.3d 433, 445 (7th

Cir. 1999), so we review this determination for

abuse of discretion. "We will uphold the extent

of the departure taken as long as it is

reasonable and adequately reflects the structure

of the Guidelines." United States v. Hogan, 54

F.3d 336, 341 (7th Cir. 1995).

A. Motion to Dismiss

 Criminal contempt is used to punish disobedience

of a court order, and courts often find a

defendant in contempt when he willfully refuses

to comply with a valid court order. See, e.g.,

United States v. Marquardo, 149 F.3d 36, 39-40
(1st Cir. 1998). Simmons does not dispute that

the district court issued an order that he

testify or that he refused to testify. Instead,

Simmons claims that he refused to testify in the

good faith belief that the government had reneged

on their plea agreement. Because a good faith

effort to comply with a court order negates

willfulness, an element of criminal contempt that

must be proven beyond a reasonable doubt, a

defendant may present evidence of good faith as

a defense to a criminal contempt charge. See

United States v. Monteleone, 804 F.2d 1004, 1011

(7th Cir. 1986); United States v. Ray, 683 F.2d

1116, 1126 (7th Cir. 1982).

 However, Simmons fails to present evidence that

would demonstrate good faith. A defendant can

show good faith by providing evidence that his

noncompliance did not constitute a refusal or

resulted from the indefiniteness of the district

court’s order or some other factor rendering the

defendant incapable of performing the order. See

Ray, 683 F.2d at 1126. The district court’s order

to testify was quite clear, however, and the

court reiterated both its order and the

consequences of Simmons’s refusal several times.

Simmons presents no evidence that he was

incapable of testifying, nor can we adduce any

factor that may have rendered him incapable of

testifying. Simmons refused to comply with a

clear court order, and the court correctly found

him in contempt.

 Simmons argues that his testimony should not

have been compelled because of the alleged breach

of the plea agreement, but this argument is

without merit. "[T]he public is entitled to any

man’s evidence concerning criminal acts committed

by another." United States v. Patrick, 542 F.2d

381, 388 (7th Cir. 1976). If the court felt that

Simmons’s testimony was necessary to the Reed

retrial, the court was empowered to compel his

testimony. See id. Even assuming arguendo that

the government breached the plea agreement, this

breach would not, as Simmons implies, authorize

him to refuse the court’s order to testify.

Instead, Simmons should have testified before the

court and then brought an action against the

government to enforce the terms of the plea

agreement. For this reason, the evidence of

breach that Simmons wished to provide was

irrelevant. The district court properly refused

to allow Simmons to raise a good faith defense on

this evidence and properly denied Simmons’s

motion to dismiss. Simmons briefly argues that

his consultation of counsel immunizes him from

contempt, but "an attorney may not exculpate his

client of contempt by advising him to disobey an

order of the court." Monteleone, 804 F.2d at

1011.
B. Sentencing Departure

 Guidelines sec. 2J1.1 requires courts sentencing

a defendant for contempt to apply sec. 2X5.1

"[b]ecause misconduct constituting contempt

varies significantly." U.S.S.G. sec. 2J1.1

application note 1. Guidelines sec. 2X5.1 directs

courts to apply the "most analogous offense

guideline." U.S.S.G. sec. 2X5.1. In this case,

the district court concurred with the

recommendation of the PSR to apply Guidelines

sec. 2J1.5, failure to appear as a material

witness, as the most analogous offense guideline.

Guidelines sec. 2J1.5 provides a base offense

level of six when a witness has failed to appear

for a felony trial, U.S.S.G. sec. 2J1.5(a)(1),

and directs courts to increase by three levels if

the failure to appear resulted in "substantial

interference with the administration of justice."

U.S.S.G. sec. 2J1.5(b). 

 Simmons does not dispute that sec. 2J1.5 was

the most analogous offense guideline, and we have

previously held that sec. 2J1.5 is most closely

analogous to refusal to comply with an order to

testify. See United States v. Ortiz, 84 F.3d 977,

981-82 (7th Cir. 1996). However, the district

court felt that Simmons’s refusal to testify was

a factor that removed his conduct from the

heartland of conduct contemplated by the

Sentencing Commission and departed upward an

additional eight levels, to produce a total

offense level of seventeen. Simmons appeals this

departure, claiming that a refusal to testify on

the grounds of a breach of a plea agreement does

not constitute a factor that would remove

Simmons’s conduct from the heartland established

for sec. 2J1.5.

 This court employs a three-part approach in

reviewing a district court’s decision to depart

upward from the applicable Guideline range. See

Leahy, 169 F.3d at 439. First, we determine

whether the grounds for departure were

appropriate. See id. Second, we determine whether

the court committed any clear errors in its

findings of fact regarding the departure. See id.

Third, we consider whether the extent of the

departure was reasonable. See id. 

 A district court may depart from the applicable

Guidelines range and sentence a defendant outside

that range only if "the court finds ’that there

exists an aggravating or mitigating circumstance

of a kind, or to a degree, not adequately taken

into consideration by the Sentencing Commission

in formulating the guidelines that should result

in a sentence different from that described.’"

U.S.S.G. sec. 5K2.0 (quoting 18 U.S.C. sec.
3553(b)). In Koon v. United States, the Supreme

Court explained this requirement by noting that

the Sentencing Commission intended "the

sentencing courts to treat each guideline as

carving out a ’heartland,’ a set of typical cases

embodying the conduct that each guideline

describes." 518 U.S. 81, 93 (1996) (quoting

U.S.S.G. ch. 1 pt. A, intro. cmt 4(b)). In an

"atypical" case, where "a particular guideline

linguistically applies but where conduct

significantly differs from the norm" a court is

permitted to depart from the applicable

Guidelines sentencing range, U.S.S.G. ch. 1 pt.

A, intro. cmt. 4(b). 

 In the instant case, the district court felt

that Simmons’s outright refusal to testify,

coupled with his change of heart as to his

decision to testify, served to distinguish

Simmons’s behavior from other behavior within the

heartland of sec. 2J1.5. Guidelines sec. 2J1.5

applies in all cases where a material witness,

for any reason, fails to testify in a criminal

trial. This guideline contemplates a broad

variety of conduct within its heartland.

Nonetheless, the district court did not err in

determining that Simmons’s conduct went beyond

the level of conduct contemplated by the

Sentencing Commission when it promulgated sec.

2J1.5. 

 Simmons participated in the crimes for which

Reed was tried, and his cooperation enabled the

government to indict Reed. For this cooperation

and his testimony at Reed’s trial, Simmons was

given a significantly reduced sentence on his own

bank robbery conviction. After he received his

sentence reduction, Simmons had a change of

heart, writing to Reed that "I told them people

fuck that shit . . . never can I help them people

take your life like that. . . . I told them

people I aint with it and that’s for real."

However, even Simmons’s protestations to Reed

proved inaccurate, for Simmons would have been

willing to testify at Reed’s retrial, had the

government agreed to provide Simmons with extra

time off his sentence. The government refused to

accede to this demand, and Simmons petulantly

refused to testify, despite a clear court order

compelling him to do so. In addition, Reed

presented Simmons’s letter at his retrial in an

attempt to compromise the credibility of

Simmons’s previous testimony, which had been read

into the record. In this context, Simmons’s

refusal to testify demonstrates many elements of

obstruction, and his conduct exceeds the type of

absenteeism contemplated by the Sentencing

Commission in sec. 2J1.5. Therefore, we find that

the court’s decision to depart was reasonable

under the circumstances.
 Simmons does not contend that the district

court’s findings of fact were in error, so we

must determine only whether the extent of the

court’s upward departure was reasonable.

Sentencing courts need not adhere to a mathematic

approach in determining the extent of a

departure. Instead, "[t]he law merely requires

that district judges link the degree of departure

to the structure of the Guidelines and justify

the extent of the departure taken." United States

v. Scott, 145 F.3d 878, 886 (7th Cir. 1998).

Here, the district court determined that

Simmons’s conduct merited an eight-level

departure upward, and this determination is

articulated within the methodology of the

Guidelines and linked to the general structure of

the Guidelines, which applies a higher total

offense level to obstructive conduct like

Simmons’s. See, e.g., U.S.S.G. sec. 2J1.2

(applying base offense level of twelve for

obstruction of justice). In addition, the court

found that Simmons’s actions constituted a

repudiation of his previous agreement to

cooperate with the government. In return for his

cooperation at Reed’s first trial, Simmons’s

sentence was reduced by at least 55 months. On

this basis, the court felt that a sentence of 57

months was appropriate because it took away the

"benefit" conferred upon the defendant by the

government. The district court did not abuse its

discretion in making this determination.

III. Conclusion

 The district court did not err in refusing to

allow Simmons to present his good faith defense

to criminal contempt, nor did the court abuse its

discretion in its departure from the applicable

Guidelines range. Therefore, the decisions of the

district court are Affirmed.