United States v. Williams ( 1998 )


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  • 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.
    _________________________________________________________________
    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.
    _________________________________________________________________
    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 Stu-
    dent, 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 pos-
    sess 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 pro-
    ceeded 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 Caro-
    lina. In Ohio, Williams showed the Gonzalezes "two cookies" of
    crack cocaine claiming that they weighed 10 ounces. After arriving
    2
    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 distribu-
    tion 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 rec-
    ommended by the PSR. The court then sentenced Williams to impris-
    onment 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:
    3
    The law does not require a defendant to prove his innocence
    or produce any evidence at all. The government has the bur-
    den 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. Wil-
    liams 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 defi-
    nition 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 rea-
    sonable 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 rea-
    sonable 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 reason-
    able 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
    4
    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 mean-
    ing 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 "self-
    evident 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 "possess-
    ing," rather than "using" or "carrying," a firearm in connection with
    a drug trafficking crime under § 924(c). Although an objection based
    5
    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 . . . suffi-
    ciency." 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 con-
    tains 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 sub-
    sequent 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 defen-
    dant 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 indict-
    ment 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 ele-
    ments 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,
    6
    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 hand-
    gun 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 pos-
    sessed 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 Wil-
    liams was notified of this modification, no reversible error was com-
    mitted.
    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 Wil-
    liams 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 con-
    ditions are met, we may then exercise our discretion to notice the for-
    feited 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. Look-
    ing 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 specifi-
    cally 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 Wil-
    liams 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-
    8
    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 conclu-
    sion," 
    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 con-
    clusion, 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. Sentenc-
    ing 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 sep-
    arate 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-
    9
    ries its burden if a defendant fails to properly object to a recom-
    mended 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 pow-
    der 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 pro-
    vided 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 specu-
    lative and uncorroborated. The district court denied Williams's objec-
    tions 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 determina-
    tion 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.
    10
    depending upon the context, a sentencing court's denial of an objec-
    tion 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 thresh-
    old equivalency level of 10,000 kilograms of marijuana.2 The district
    court's identification of the source of its determination could not rea-
    sonably 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 intro-
    duced 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] objec-
    tions. 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 tes-
    timony (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 mari-
    juana. 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.
    11
    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 trans-
    ported two blocks or "cookies" of crack less than an inch thick,
    weighing about 10 ounces to North Carolina. Similarly, Hendrick tes-
    tified 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
    _________________________________________________________________
    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 Hend-
    rick'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 chal-
    lenges 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. Sentenc-
    ing Guidelines Manual § 3C1.1 (1997). The commentary to this sec-
    tion 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). Con-
    versely, 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 character-
    ized 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 com-
    partment 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 cus-
    tody within the intent of Application Note 3(e) because his escape
    _________________________________________________________________
    5 Because this case turns on the interpretation of App. Note 3(e), we
    make no comment regarding whether the inclusion of the term "ordinar-
    ily" in App. Note 4 confers more discretion upon the courts when evalu-
    ating 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 enhance-
    ment where defendant attempted to escape from county jail by kick-
    ing 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 Sev-
    enth Circuit decision that upheld a district court's refusal to apply the
    obstruction of justice enhancement under arguably similar circum-
    stances. 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, hand-
    cuffed 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 gov-
    ernment'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 him-
    self 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 cus-
    tody" 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 well-
    settled 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 pur-
    poses of the obstruction guideline, ``custody' need only involve some
    degree of official control over a defendant such that a subsequent eva-
    sion 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 appli-
    cation 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
    16