UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 91-8553 __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID GREGORY SURASKY,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the Western District of Texas ______________________________________________ (October 19, 1992)

Before BROWN, GARWOOD, and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

David Gregory Surasky (Surasky) pleaded guilty to charges of

attempting to escape from custody and conspiring to do so. He now

appeals his thirty-month sentence on the ground that the district

court erred in applying the United States Sentencing Guidelines

(U.S.S.G. or Guidelines). Specifically, Surasky objects to the

district court's decision, on the one hand, to enhance his base

offense level for obstruction of justice and, on the other hand,

not to reduce it for acceptance of responsibility. We vacate and

remand. Facts and Proceedings Below

Surasky, along with two other inmates, made an aborted effort

to escape from the Hays County Jail in San Marcos, Texas, where he

was being held in custody pending resolution of charges extraneous

to this appeal. Using a metal tool which had been fashioned from

an orthopedic brace and three hacksaw blades which had been

smuggled into the jail, the would-be escapees had managed to remove

two panes of plexiglass from a security window in the rear door of

their cell block. The men had also manufactured a crude ladder

using several hundred yards of dental floss, cardboard cylinders

from salt and pepper shakers, and strips of cloth torn from a

mattress cover. The plot was uncovered after jail officials

received an anonymous tip that an escape attempt was being planned

in the cell block in which Surasky was being held.

When the damaged window was discovered in the early morning

hours of April 29, 1991, jail officials questioned each inmate in

the cell individually. Suspicion fell on Surasky because he and

one of his co-conspirators in the escape attempt, Arthur Harris

Stier, occupied the two bunks nearest to the damaged window.

However, when questioned, Surasky stated that he had nothing to do

with the escape attempt. Nevertheless, blisters and cuts were

found on Surasky's hands and other inmates told jail officials that

they had witnessed Surasky's attempts to remove the window. Thus,

on June 18, 1991, Surasky pleaded guilty to attempting to escape

from custody in violation of

and 752, and

conspiring to do so in violation of

. When

interviewed that same day by the probation officer preparing his

2 Presentence Report (PSR), Surasky admitted his guilt and expressed

remorse at his behavior.

In the PSR, the probation officer assigned Surasky a base

offense level of thirteen under U.S.S.G. § 2P1.1(a)(1) and

recommended that Surasky receive a two level decrease for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The PSR

did not recommend an upward adjustment for obstruction of justice

under U.S.S.G. § 3C1.1. After objections by the United States,

however, the PSR's acceptance of responsibility recommendation was

retracted in an addendum. The amended PSR still contained no

obstruction of justice recommendation. At the sentencing hearing,

the district court sustained the government's objection and denied

Surasky an adjustment for acceptance of responsibility. The court

also enhanced Surasky's base offense level by two levels for

obstruction of justice on the ground that Surasky had lied about

his involvement in the escape attempt when first questioned by jail

officials.

So enhanced, Surasky's total offense level was fifteen which,

when combined with a criminal history category of IV, produced a

sentencing range of thirty to thirty-seven months. The district

court sentenced Surasky to a term of thirty months imprisonment

followed by three years of supervised release, a fine of $5,000,

and a special assessment of $100. Surasky objected to the district

court's sentencing decisions and now brings this timely appeal.

3 Discussion

We first consider whether the district court properly enhanced

Surasky's base offense level for obstruction of justice. The

district court's decision must be upheld unless it is contrary to

law or clearly erroneous. See, e.g., United States v. Edwards,

(5th Cir. 1990);

(e). The

Guidelines provide that a defendant's offense level is to be

enhanced if he "willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the

investigation, prosecution, or sentencing of the instant offense."

U.S.S.G. § 3C1.1. During his initial interview with jail

officials, Surasky stated that he had nothing to do with the escape

attempt. The government argues that this was a false statement,

punishable as obstruction of justice. We disagree.

The proper scope of the Guideline's obstruction of justice

provision is discussed in the Commentary to section 3C1.1:

"This provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant's denial of guilt (other than a denial of guilt under oath that constitutes perjury), . . . is not a basis for application of this provision. In applying this provision in respect to alleged false testimony or statements by the defendant, such testimony or statements should be evaluated in a light most favorable to the defendant." U.S.S.G § 3C1.1 application note 1.

The record does not reveal the exact language that Surasky

used to exculpate his complicity in the escape attempt. The PSR

states that when Surasky was first questioned "he stated that he

had nothing to do with the escape attempt." PSR ¶ 14, at 5. The

government, in a letter objecting to the PSR signed by the

Assistant United States Attorney, asserts, without any indication

4 as to the source or precision of the information, that Surasky

"stated when questioned that he knew nothing about the escape

attempt, nor had he seen or heard anything." This same letter,

however, continues by characterizing what Surasky then said as "a 1 materially false statement denying his role in the offense." The

district court made no findings as to just what Surasky said. In

its brief in this Court, the government argues that "Surasky's

denial of guilt was an attempt to obstruct justice."

Given this state of the record, Surasky's statement, when

viewed, as it must be, in the light most favorable to him, is

fairly described as a mere "denial of guilt" within the meaning of

U.S.S.G. § 3C1.1. Accordingly, Surasky's statement cannot provide

the basis for an obstruction of justice enhancement.2 See United

States v. Fiala,

(7th Cir. 1991) (reversing an

obstruction of justice enhancement imposed upon a motorist who,

when asked by a state trooper if he had anything illegal the car,

replied that he did not, even though there was marijuana in the

vehicle); see also United States v. Contreras,

(7th Cir. 1991) (noting that "a simple denial of guiltSQas in

pleading not guilty, or saying to an arresting officer, 'I didn't

1 The government's letter does not expressly take issue with the PSR's description of what Surasky then said; nor does the PSR addendum make any further findings in this respect. 2 We note that not every attempt at self-exoneration by a defendant is privileged from enhancement by U.S.S.G. § 3C1.1. For example, if someone in Surasky's shoes were to say "John Smith did it, not me," when in fact John Smith was not involved, such a statement, we think, would be more than a simple denial of guilt and could be treated as obstruction of justice, assuming that the statement proved to be a significant obstruction or impediment to the investigation. See infra.

5 do anything'SQcannot be the basis for an obstruction enhancement

under § 3C1.1.").3

Even were we to determine that Surasky's statement was

properly found to constitute more than a mere denial of guilt, we

would still conclude that an obstruction of justice enhancement was

improper. The application notes to U.S.S.G. § 3C1.1 provide a non-

exhaustive list of examples of conduct warranting an enhancement

for obstruction of justice. The example most directly on point is

that of "providing a materially false statement to a law

enforcement officer that significantly obstructed or impeded the

official investigation or prosecution of the instant offense."

U.S.S.G. § 3C1.1 application note 3(g).4 However, the Guidelines

3 The denial of guilt exception to U.S.S.G. 3C1.1 finds a rough analog in the so-called "exculpatory no" doctrine established in Paternostro v. United States,

(5th Cir. 1962). In Paternostro, we stated that an individual does not violate

(which prohibits the making of false statements to government agencies) by providing "mere negative responses" to inculpatory questions put to him by government investigators.

. Rather, we held that one must "aggressively and deliberately initiate [a] positive or affirmative statement calculated to pervert the legitimate functions of Government."

For example, in United States v. Hajecate,

(5th Cir. 1982), cert. denied,

(1983), we held that taxpayers who concealed an off-shore bank account by answering "no" on their income tax returns to a question about foreign assets were not guilty of making a false statement. We have said that the "exculpatory no" doctrine derives "at least in part from latent distaste for an application of the statute that is uncomfortably close to the Fifth Amendment." United States v. Lambert,

, 946 n.4 (5th Cir. 1974) (en banc). A similar conviction apparently feeds the provision of application note 1 under section 3C1.1 that a defendant does not obstruct justice under the Guidelines merely by responding to an accusation of criminal conduct on his part in the negative. See United States v. Urbanek,

(10th Cir. 1991) (analogizing U.S.S.G. § 3C1.1's denial of guilt exception to an exculpatory no). 4 A "materially" false statement is further defined as one

6 also provide as an example of what does not constitute obstruction

of justice the following: "making false statements, not under oath,

to law enforcement officers, unless Application Note 3(g) above

applies." U.S.S.G. § 3C1.1 application note 4(b). It should be

obvious that, when juxtaposed, the important5 difference between

these two provisions is the language in note 3(g) referring to a

"significant[] obstruct[ion] or imped[iment]." Thus, by applying

the rule of U.S.S.G. § 3C1.1, and its application notes 3(g) and

4(b), we hold that a false statement made by a defendant to law

enforcement officers cannot constitute obstruction of justice

unless the statement obstructs or impedes the investigation at

issue significantly.

This holding is consistent with our precedents. In United

States v. Rodriguez,

(5th Cir. 1991) (per curiam),

cert. denied,

(1992), we upheld the application of an

obstruction of justice enhancement to a defendant who provided the

court with a fraudulent birth certificate. In so doing, we relied

upon section 3C1.1's application note 3(c), which advises that a

defendant obstructs justice by "producing or attempting to produce

that "if believed, would tend to influence or affect the issue under determination." U.S.S.G. § 3C1.1 application note 5. Surasky's denial of guilt was plainly "material" in this sense. 5 Of course, the "materiality" requirement of application note 3(g), see supra note 5, is also a difference, though one that we think will be relevant in few cases. It is hard to imagine that an immaterial statementSQi.e., one that, in the language of the Guidelines, would not "tend to influence or affect the issue under determination,"SQcould more than rarely, if ever, be thought to obstruct justice. Conversely, any statement that significantly obstructs or impedes an investigation is likely to always, or almost always, be material.

7 a false, altered, or counterfeit document or record during an

official investigation or judicial proceeding." However, prior to

reaching this conclusion, the Rodriguez Court decided that it was

unable to uphold the obstruction enhancement on the ground that the

defendant had used an alias. As we said, "The fact that [the

defendant used an alias] at his arrest and during the police

investigation does not support the adjustment because the alias did

not significantly hinder the investigation." Id. at 902 (emphasis

added). We based our conclusion on application note 4(a), which

states that it is not obstruction of justice for a defendant to

"provid[e] a false name or identification document at arrest,

except where such conduct actually resulted in a significant

hindrance to the investigation or prosecution of the instant

offense." (emphasis added).

We followed Rodriguez in United States v. McDonald,

(5th Cir. 1992) (per curiam), where we again concluded that a

defendant's use of an alias when he was arrested by police officers

did not warrant an obstruction enhancement. As we said in that

case, "If McDonald had used his alias only at the time of arrest,

enhancement for obstruction of justice might not have been

warranted, absent a showing of significant hindrance."

(emphasis added). To uphold the defendant's obstruction

enhancement in McDonald, we relied upon the fact that the defendant

had used an alias while under oath before a magistrate and in

filing an affidavit. We observed that, unlike application note

4(a), application note 3(f), which provides that it is obstruction

of justice to provide false information to a judge or magistrate,

8 does not have a significant hindrance requirement. See

at 392-

93.

Even though the "significant hindrance" requirement of

Rodriguez and McDonald was derived from application note 4(a) in

the context of the use of aliases, we believe that application note

3(g) imposes a roughly similar requirement of significant

obstruction or impediment upon cases, such as this one, in which a

defendant makes a false statement to law enforcement officials.

This should come as no surprise since the use of an alias, after

all, is a type of false statement.

The government relies on United States v. Rogers,

(5th Cir. 1990), cert. denied,

(1991),

which held that U.S.S.G. § 3C1.1 applies to attempted obstructions

of justice as well as actual obstructions. Rogers, however, was

decided before the Sentencing Commission clarified the intended

scope of section 3C1.1 with amendments which became effective on

November 1, 1990. These amendments included application note 4(a)

with its significant hindrance language, as well as application

note 3(g) with its significant obstruction or impediment language.

See UNITED STATES SENTENCING COMMISSION, GUIDELINES MANUAL, appendix C, §

347, at 163-66 (Nov. 1991). In light of these amendments, the

Rodriguez Court determined that Rogers was no longer controlling.

See Rodriguez,

.

In this case, the district court accepted, and it is conceded

by one and all, that Surasky's denial of guilt did not

significantly obstruct or impede the investigation of the escape

attempt. Surasky's co-conspirator Stier confessed almost

9 immediately upon the discovery by jail officials of the damaged

window (although Stier's initial mea culpa did not implicate

Surasky). Moreover, jail officials discovered incriminating

blisters on Surasky's hands. Finally, some of Surasky's fellow

inmates told jail officials that they had witnessed Surasky's

escape preparations.

Accordingly, the obstruction of justice enhancement based on

Surasky's initial denial of guilt to the investigating jail

officials was improper.

The government urges that, even if Surasky did not obstruct

justice, the error was harmless because the district court would

have imposed the same sentence without the enhancement, thus making

remand unnecessary. In Williams v. United States,

(1992), the Supreme Court stated that, when an appellate court

finds that the Guidelines have been incorrectly applied, "a remand

is appropriate unless the reviewing court concludes, on the record

as a whole, that the error was harmless, i.e., that the error did

not affect the district court's selection of the sentence imposed."

. We have exercised this option in the past. See,

e.g., United States v. Johnson,

(5th Cir.

1992). It is true that the district court could have imposed the

same sentence without the obstruction of justice enhancement. With

the enhancement, Surasky's offense level was fifteen which, when

combined with a criminal history category of IV, produced a

sentencing range of thirty to thirty-seven months. Without the

enhancement, Surasky's offense level becomes thirteen, thus

yielding a permissible sentencing range of twenty-four to thirty

10 months. Moreover, one can find in the record some arguable support

for the government's suggestion that it was the district court's

intent to give all three defendants the same sentence. When

sentencing Surasky, the district court asked to be reminded what

sentence it gave Stier. It is also true all three men received

thirty month sentences. Nevertheless, we are not sufficiently

convinced in this case that the obstruction of justice enhancement

was harmless error. From the record before us, it is not

unreasonable to conclude that, upon remand, the district court

might well choose to give Surasky a lesser sentence.

In part, we base our decision upon the fact that under the

Guidelines it is unusual for a defendant whose sentence has been

enhanced for obstruction of justice to receive a reduction for

acceptance of responsibility. The current version of the

Guidelines advises that a defendant who receives an obstruction of

justice enhancement is entitled to an acceptance of responsibility

adjustment only in "extraordinary cases." U.S.S.G. § 3E1.1

application note 4.6 Thus, the errant decision to enhance

Surasky's offense level for obstruction of justice well might have

prevented the district court from seriously considering whether to

give Surasky an acceptance of responsibility adjustment. We note

that there is evidence in the record that could logically persuade

a sentencing judge to award Surasky such an adjustment.7 Indeed,

6 Previous versions of the Guidelines had described the two adjustments as mutually exclusive. 7 Despite his initial denial of guilt, Surasky later confessed his crime and expressed regret at what he had done. PSR ¶ 16, at 5-6. Of course, a guilty plea does not entitle a defendant to an

11 the initial recommendation of the PSR was that Surasky receive such

an adjustment.

Furthermore, the record before us does not clearly support the

government's contention that the sentencing judge wanted to ensure

that Surasky receive the same sentence as his co-conspirators. To

be sure, the district court did inquire about the sentence it had

given Surasky and all three defendants did receive the same

sentence. But at no point during Surasky's sentencing hearing did

the sentencing judge actually say that he wanted Surasky's and

Stier's sentences to be the same. Moreover, in sentencing Surasky

to thirty months imprisonment, the district court gave him the most

lenient sentence in the permissible range. Without the obstruction

of justice enhancement, a thirty month sentence becomes the most

severe sentence in the permissible guideline range.

Conclusion

We hold that the district court erred by enhancing Surasky's

offense level for obstruction of justice, and we accordingly vacate

Surasky's sentence and remand for resentencing, including

consideration of whether Surasky should receive an acceptance of

responsibility adjustment.8

acceptance of responsibility adjustment as a matter of right. U.S.S.G § 3E1.1(c). Instead, for a defendant to merit such an adjustment the sentencing judge must be convinced of the sincerity of the defendant's remorse. See, e.g., United States v. Sanchez,

(5th Cir. 1990). 8 We emphasize that we express no opinion about whether Surasky is entitled to such an adjustment. Nor do we reach Surasky's claim raised in this appeal that the district court erred in failing to give him an acceptance of responsibility adjustment in the first instance. We merely hold that upon remand the district court should consider the matter de novo.

12 SENTENCE VACATED and CAUSE REMANDED

13