Revised May 8, 2000

                           UNITED STATES COURT OF APPEALS
                                    FIFTH CIRCUIT

                                           ____________

                                           No. 98-50062
                                           ____________


               UNITED STATES OF AMERICA,


                                               Plaintiff - Appellee,

               versus


               JAMES THOMAS PHILLIPS,


                                               Defendant - Appellant.



                            Appeal from the United States District Court
                                 for the Western District of Texas


                                            April 18, 2000

Before REAVLEY, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

       Federal prisoner James Thomas Phillips filed a motion under 28 U.S.C. § 2255 challenging

his 1991 conviction and sent ence. The district court denied his motion, and we granted him a

certificate of appealability on a single issue. Having considered that issue, we vacate his sentence and

remand for resentencing.

                                                   I
          While conducting an unrelated investigation, Austin police discovered a Chevrolet Suburban

in a motel parking lot that was registered to Phillips, a federal fugitive, under an alias. Before the

officers could arrest him, he left in a station wagon with Laurie McCravy, his common law wife, and

her three children. The police followed, stopped the station wagon, and arrested Phillips and

McCravy. Inside the station wagon, the police found a loaded firearm and a box containing

approximately 1200 grams of methamphetamine.

          Phillips was prosecuted and convicted by a jury of conspiracy to possess methamphetamine

with intent to distribute, possession of methamphetamine with intent to distribute, and carrying a

firearm during a drug related offense. See 18 U.S.C. § 924(c); 21 U.S.C. §§ 841(a)(1), 846. The

trial judge sentenced him to concurrent 188-month terms for the conspiracy and possession

convictions and to a consecutive sixty-month term for the firearms conviction. The court arrived at

this sentence, in part, by finding that Phillips’s sentence should be enhanced for obstruction of justice.

See United States Sentencing Commission, Guidelines Manual, § 3C1.1 (1991).

          We affirmed on direct appeal. See United States v. Phillips, No. 91-8527 (5th Cir. Dec. 10,

1992) (unpublished). We did not address the obstruction of justice enhancement because, although

Phillips claims he asked his appellate counsel to do so, the enhancement was not challenged on

appeal.

          Phillips subsequently filed this § 2255 motion. The magistrate judge recommended denying

the motion and the district court “adopt[ed] the Magistrate Judge’s factual findings and legal

conclusions.” After the district court denied Phillips’s request for a certificate of appealability, we

granted him a certificate on a single issue: whether his counsel was ineffective for not appealing the

obstruction of justice enhancement.


                                                   -2-
                                                 II

       The district court determined that Phillips’s trial counsel was not ineffective because the

obstruction of justice enhancement was proper. We review this ruling de novo. See United States

v. Faubion, 

, 228 (5th Cir. 1994).

       A criminal defendant has a constitutional right to receive effective assistance of counsel on

direct appeal. See Hughes v. Booker, 

, 895 (5th Cir. 2000). A claim of ineffective

assistance based o n the failure to argue an issue on appeal is governed by the familiar two-part

Strickland test, which requires us to determine whether: (1) the attorney’s performance was

deficient, and (2) the deficiency prejudiced the defendant. See Roe v. Flores-Ortega, — U.S. —, __,

, 1034, 

, __ (2000) (citing Strickland v. Washington, 

,

687, 

, 2064, 

, __ (1984)); United States v. Williamson, 

, 462 (5th Cir. 1999).

                                                 A

       Counsel is not deficient for not raising every non-frivolous issue on appeal. See 

. Instead, to be deficient, the decision not to raise an issue must fall “below an

objective standard of reasonableness.” 

, 104 S. Ct. at 2064, 80 L. Ed. 2d

at __. This reasonableness standard requires counsel “to research relevant facts and law, or make an

informed decision that certain avenues will not prove fruitful. Solid, meritorious arguments based

on directly controlling precedent should be discovered and brought to the court's attention.”

-63 (citations omitted). Thus, to determine whether Phillips’s appellate

counsel was deficient, we consider whether a challenge to the obstruction enhancement would have

been sufficiently meritorious such that Phillips’s counsel should have raised it on appeal.


                                                 -3-
        The version of § 3C1.1 in effect at the time Phillips was sentenced1 stated:

        If the defendant willfully obstructed or impeded, or attempted to obstruct or impede,
        the administration of justice during the investigation, prosecution, or sentencing of the
        instant offense, increase the offense level by 2 levels.

USSG § 3C1.1 (1990). We have previously identified two factors which distinguish between

obstructive and non-obstructive conduct: (1) whether the conduct “presents an inherently high risk

that justice will be obstructed;” and (2) whether the conduct “requires a significant amount of

planning,” as opposed to being “the result of a spur of the moment decision” or “stem[ming] from

merely panic, confusion, or mistake.” United States v. Greer, 

, 235 (5th Cir. 1998).

        The Presentence Report (“PSR”) in this case justified its recommendation of an enhancement

under § 3C1.1 by stating: “This defendant provided untruthful testimony concerning material facts

at his trial wherein he attempted to obstruct the administration of justice during the investigation and

prosecution of the instant offense.” Phillips objected on the grounds that the probation officer was

not present at trial and was thus unable to judge his truthfulness as a witness. The United States (“the

government”) responded by stating that the defendant provided false information to law enforcement

officers after his arrest. The government bolstered this assertion by submitting an affidavit from one

of the arresting officers discussing allegedly-obstructive statements Phillips made to the arresting

officers. Specifically, Phillips denied knowing the ownership of the Suburban, the methamphetamine,

and the station wagon. Also, he refused to clarify his relationship with McCravy and he explained

his unhelpfulness by claiming he had hearing and memory deficits. The probation officer adopted this

response to Phillips’s objections in an addendum to the PSR.


        1
                  We apply the version of the sentencing guidelines in effect at the time of sentencing, unless this
would violate the Ex Post Facto Clause. See 18 U.S.C. § 3553(a)(4)(A); United States v. Kimler, 

, 893
(5th Cir. 1999).

                                                        -4-
        The court generally “adopt[ed] . . . as its finding the factual statements contained in the

presentence report as to which there are no objections.” Rather than adopting the PSR’s contested

findings, however, the court made its own findings. As to the obstruction of justice enhancement,

the court found that Phillips’s statements to the arresting officers justified the enhancement without

addressing the accusations of perjury.2

        The application notes to § 3C1.1 make clear that not all false statements to law enforcement

justify the enhancement. Application Note 1 generally provides that mere denials of guilt do not merit

the enhancement. See 

(“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.”); United States

v. Surasky, 

, 245 & n.2 (5th Cir. 1992) (distinguishing between a mere denial of guilt,

which is not obstructive, and conduct which exceeds a mere denial and which could be obstructive).

More specifically, Application Note 4(b) states that “making false statements, not under oath, to law

enforcement officers” generally is not obstructive, “unless Application Note 3(g) above applies.” 

Note 3(g), in turn, provides a highly specific example of a false statement to law

enforcement officials which is obstructive: “providing a materially false statement to a law

enforcement officer that significantly obstructed or impeded the official investigation or prosecution

of the instant offense.” 

The district court relied on Note 3(g) in applying the

enhancement here, directly tracking the note’s language.

        Phillips’s statements to the arresting officer, read in a light most favorable to him, see 

                 The court stated:
        The Court finds the Defendant impeded and obstructed justice, having heard trial testimony and the
        presentation of physical evidence. Obstruction conduct can vary widely and essentially . This
        Defendant provided materially false statements to law enforcement officers that significantly
        obstructed the investigation process to include the prosecution of the instant offense.


                                                       -5-
n. 1 (“In applying this provision, the defendant’s testimony and statements should be evaluated in a

light most favorable to the defendant.”), did not support the enhancement because they did not

significantly obstruct the investigation, see 

(comparing notes 3(g) and 4(b)

and “hold[ing] 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”). Phillips’s statements that he had poor memory and his denial of ownership of the

Suburban did not even relate to the methamphetamine investigation. Cf. USSG § 3C1.1 comment.

(n.5) (defining materiality according to whether the statement “if believed, would tend to influence

or affect the issue under determination”); 

-46 & n.4. Those which did relate

to the investigation—Phillips’s claim not to know who owned the drugs or the station wagon and his

refusal to clarify his relationship with McCravy—were “a mere denial of guilt.” 

. These statements did not give the officers false information which led them on a misdirected

investigation, nor did they impede the investigation. See 

cf. United States v. Smith,

, 891 (5th Cir. 2000) (finding the enhancement appropriate for someone whose

“statement went far beyond merely denying her own involvement or refusing to provide information,

which would not qualify for the obstruction enhancement; she specifically sent the FBI investigators

on the trail of unknown suspects, whom she specifically described in order to obstruct the


         3
                   In Surasky, we found that an inmate’s denial of involvement in an escape attempt did not justify the
enhancement because it was a “mere denial of guilt.” 

We noted that, even if the inmate’s statements were
more than a mere denial of guilt, the enhancement would still be improper because the statement did not significantly
obstruct the investigation:
         Surasky’s co-conspirator confessed almost 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.

The facts here are similar: the drugs were found with Phillips, he was already under arrest and thus not
able to escape through his false statements, and the false statements did not give the police a “false lead.”

                                                         -6-
investigation into her own and her co-conspirators' involvement”); United States v. Rickett, 

, 226 (5th Cir. 1996) (finding that an obstruction enhancement was appropriate when a defendant

gave officers a false identification at the time of his arrest which led them to arrest an innocent third

party and forced them to file a superseding indictment against the defendant); United States v.

Williams, 

, 337 (2d Cir. 1996) (finding that a defendant’s denial on arrest that he knew

a suspect was not obstructive because the suspect had already informed officers of the defendant’s

involvement in the conspiracy).

        The government argues that other obstructive conduct Phillips engaged in—namely his

perjury and his encouragement of false testimony from another witness—made any appeal of the

enhancement futile. Cf. Sones v. Hargett, 

, 415 n.5 (5th Cir. 1995) (“Counsel cannot be

deficient for failing to press a frivolous point.”). As this other conduct was neither the grounds for

the enhancement nor is clearly established in the record, and because the grounds the district court

relied on are incorrect, we disagree that an appeal of the enhancement would have been futile.

Instead we find, based on controlling case law, that Phillips had a clearly meritorious appellate issue

regarding whether the enhancement was proper and that, accordingly, his appellate counsel was

deficient for not raising this issue on appeal. Cf. 

-63 & n.7 (finding

deficient performance when counsel did not cite “directly controlling precedent” which showed that

a sent encing enhancement was improper); United States v. Kissick, 

, 1056 (10th Cir.

1995) (“An attorney's failure to challenge the use of a prior conviction to classify the defendant as

a career offender when that prior conviction is facially insufficient to satisfy the definition of a

‘controlled substance offense’ under USSG § 4B1.2 therefore constitutes deficient performance under

Strickland.”).


                                                  -7-
                                                   B

          We next consider whether Phillips was prejudiced by his appellate counsel’s deficiency. To

show prejudice, Phillips must show that there is a “reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.” 

, 104 S. Ct. at 2068, 80 L. Ed. 2d at __, quoted in 

(applying the

standard to ineffective appellate counsel). “A reasonable probability is that which renders the

proceeding unfair or unreliable, i.e., undermines confidence in the outcome.” 

.

          In the appellate context, the prejudice prong first requires a showing that we would have

afforded relief on appeal. As we aptly noted in Williamson, this requires us to “counter-factually

determine the probable outcome on appeal had counsel raised the argument.” 

Had

Phillips raised the issue, we would have reviewed “the district court's interpretation or application of

the Sentencing guidelines de novo and its factual findings, such as a finding of obstruction of justice,

for clear error.” United States v. Huerta, 

, 364 (5th Cir. 1999), cert. denied — U.S. —,

, 

(2000). Because application of § 3C1.1 without an adequate

factual basis is reversible error, see 

, we would have vacated the district

court’s imposition of the enhancement and remanded for resentencing.

          The fact that attorney error resulted in a longer sentence, however, does not always show

prejudice. In Spriggs v. Collins, 

(5th Cir. 1993), we stated that, to show that a

sentencing error was prejudicial, a petitioner must show that there is “a reasonable probability that

but for trial counsel’s errors the defendant’s non-capital sentence would have been significantly less

harsh.” 

see also United States v. Stewart, 

, 751 (5th Cir. 2000) (same). We


                                                  -8-
premised this rule on the fact that many state sentencing schemes allow a broad sentence range

without attaching specific differences in the range to particular enhancing factors. See 

. The significant prejudice rule reflected our concern that reversal without a showing that

“the sentence would have been significantly less harsh” would lead to “an automatic rule of reversal.”

the discretionary sentencing range is great, practically any error committed by

counsel could have resulted in a harsher sentence, even if only by a year or two.”).

         We qualified this significant prejudice rule in dictum: “one foreseeable exception to this

requirement would be when a deficiency by counsel resulted in a specific, demonstrable enhancement

in sentencing—such as an automatic increase for a ‘career’ offender or an enhancement for use of a

handgun during a felony—which would have not occurred but for counsel’s error.”4 

n.4.

This exception applies here. The obstruction enhancement increased Phillips’s offense level for the

drug offenses from thirty-two to thirty-four, placing him in a sentencing range of between 151 to 188

months. Had the enhancement not been applied to him, his sentencing range would have been

between 121 and 151 months, well below the 188 months he actually received for each offense.

Thus, he received a sentence which was at least thirty-seven months longer than appropriate given

the district court’s findings.         Because this demonstrable enhancement was ultimately solely


         4
                    The Seventh Circuit has read Spriggs as not allowing a finding of prejudice when the sentencing error
is relatively small. See Durrive v. United States, 

, 551 (7th Cir. 1993) (finding no prejudice where correction
of the sentence would result in “at least one year’s reduction in the sentence”); Martin v. United States, 

,
1178 (5th Cir. 1996) (finding no prejudice where the increase was only by two levels). However, in reaching this
conclusion, the Seventh Circuit ignored our direction that demonstrably erroneous enhancements would still justify
relief regardless of their “significance,” see 

, 1182-83 (Rovner, J., dissenting from denial of
rehearing en banc) (stating that the Seventh Circuit has “failed to recognize the express limitations that the Fifth
Circuit placed on the ‘significance’ test we borrowed from Spriggs”), and it correspondingly ignored our above-noted
rationale for imposing the “significant prejudice requirement, see 

reason, three judges of the Seventh
Circuit recently criticized that circuit’s approach in a similar case. See 

course, are not bound by Seventh Circuit case law, even when it adopts our precedent. Instead, we rely
on our own statement that an exception to our significant prejudice rule is appropriate here.

                                                          -9-
attributable to counsel’s failure to raise the issue on appeal, we hold that Phillips has shown

prejudice.5 See id.; cf. United States v. Glover, 

, 1350 (10th Cir. 1996) (finding

prejudice where the defendant “allege[d], without challenge on our record, that his sentencing range

was improperly enhanced from 63-78 months to 110-134 months on each methamphetamine count,”

and where the defendant was sentenced to 120 months); 

(citing Spriggs and

finding prejudice where a defendant was sentenced to 328 months in custody based on a mistaken

range of between 324 and 405 months, when his range should have been 262 to 327 months); United

States v. Ford, 

, 1350 (8th Cir. 1990) (finding prejudice where the defendant’s “original

sentence, 300 months, is thirty-eight months longer than the maximum sentence resulting from a base

offense level of 32.”).

         We are not persuaded by the government’s argument that Phillips’s above-noted other

conduct justified the enhancement, thus precluding him from showing prejudice because he is unable

to show that “the proceeding [was] unfair or unreliable.” 

. As to

Phillips’s alleged perjury, the government misleadingly suggests that the court also imposed the

enhancement because it found that Phillips committed perjury at trial. In fact, the court implicitly




         5
                   This result mirrors our case law dealing with prejudice in the context of a plain error analysis. See
United States v. Cabral-Castillo, 

, 189 (5th Cir. 1994) (noting that one of the elements of a plain error
analysis is whether the error affected substantial rights, which involves consideration of whether the defendant has
shown prejudice). We have previously found that sentencing errors resulting in longer sentences are prejudicial for
purposes of a plain error analysis. See 

(“An increase in his sentence from fewer than 15
years to 30 years indisputably and prejudicially affects his rights.”); United States v. Franks, 

, 405 (5th Cir.
1995) (“Because Franks erroneously and mistakenly received a substantially longer [by 63 months] sentence than he
should have received, the fairness and integrity of the judicial proceedings was seriously affected.”). Most notably, in
Cabral-Castillo a defendant was sentenced under a mistaken range of between 188 and 255 months. See Cabral-

. Even though the defendant’s actual sentence, 188 months, fell within the proper range of 151
to 188 months, we found that he was prejudiced by the mistake. See 

finding perjury,6 and the government has not identified any part of the record which shows

this was improper. Cf. United States v. Gonzalez, 

, 262-63 (5th Cir. 1998) (noting that

we review the court’s perjury finding for clear error). As for Phillips’s alleged encouragement of false

testimony from McCravy’s daughter, the record cites the government provides are inadequate to

establish that he is plainly subject to the enhancement. Additionally, we decline to reach this issue

now when the government did not raise it below.

                                                           III

         In sum, we find that Phillips’s appellate counsel was ineffective for not challenging the

obstruction of justice enhancement on appeal. Accordingly, we VACATE the sentence and

REMAND for resentencing not inconsistent with this opinion.7




         6
                    The PSR argued that Phillips committed perjury at trial, causing Phillips to object. The court adopted
the PSR’s unobjected-to findings but made its own findings regarding the objections. It imposed the obstruction
enhancement without discussing perjury at all, stating instead that “[t]his defendant provided materially false
statements to law enforcement officers that significantly obstructed the investigation process to include the prosecution
of the instant offense.”
          Under Fed. R. Crim. P. 32, the district court must make findings on contested facts in the PSR or adopt the
PSR in its entirety. See 

. The fact that the district court did neither here with regard to perjury
implies that it found that there was no perjury which justified the enhancement.
          It is on this grounds that we disagree with the dissent, which states that “the sentencing court did find that
Phillips committed perjury.” Reading the district court’s finding on the obstruction enhancement in its entirety (as
quoted in footnote 2 of this opinion), and reading it in context, it is clear that the court did not find that Phillips
perjured himself. Although nothing we state here prevents the district court from imposing the enhancement for
perjury on resentencing, we decline to find here that Phillips perjured himself without first having factual findings on
this point from the court which heard all the testimony. Cf. United States v. Dunnigan, 

, 95, 

, 1117, 

, __ (1993) (“For these reasons, if a defendant objects to a sentence enhancement
resulting from her trial testimony, a district court must review the evidence and make independent findings necessary
to establish a willful impediment to or obstruction of justice, or an attempt to do the same, under the perjury definition
we have set out.”).

         7
                We express no opinion as to whether the district court, on remand, can impose the enhancement
under § 3C1.1 based on any or all of Phillips’s other conduct, including perjury and any conduct not raised to this
court.

                                                          -11-
REAVLEY, Circuit Judge, dissenting:

       I disagree with the majority on their reading of the sentencing judge’s finding and

upon their decision that the failure of counsel to object and argue the obstruction of justice

enhancement prejudiced Phillips.

       Phillips told the arresting officers that he did not know the drugs were in his car; and

he testified at trial that he was proceeding to a lawyer’s office to make arrangements to

surrender on the outstanding fugitive warrant, that he had no role or responsibility for the

presence of methamphetamine in the car, and that he planned to give the drugs and weapon

to the lawyer as a show of “good faith.”

       Unsurprisingly, the presentence report recommended adjustment for obstruction of

justice for this reason:

              This defendant provided untruthful testimony concerning
              material facts at his trial wherein he attempted to obstruct the
              administration of justice during the investigation and
              prosecution of the instant offense.

       Defense counsel objected only to the finding that defendant provided untruthful

testimony at his trial, because “[t]he probation officer was not present at trial. He has no

way of judging the credibility of any of the witnesses.”

       At the sentencing the court adopted the factual statements of the report and, as to the

controverted issue, said:

              The court finds the Defendant impeded and obstructed justice,
              having heard trial testimony and the presentation of physical
              evidence.

       The court went on to speak of the false statements to the arresting officers, which has
never been the complaint of this petitioner until his successful plea to this court of appeals.

His principal argument to the trial court even in this habeas proceeding was the failure of the

sentencing court to make specific findings relative to perjury.

       This panel’s discussion is irrelevant if the obstruction of justice enhancement was

made due to “false testimony concerning a material matter with the willful intent to provide

false testimony, rather than as a result of confusion, mistake, or faulty memory.” See United

States v. Dunnigan, 

, 1116 (1993).

       It seems clear to me that the sentencing court did find that Phillips committed perjury

and that the record supports that finding. If that finding is unclear, and if the judge failed to

make the required findings, it is very certain that there was no prejudice to warrant our

granting this writ for ineffectiveness of counsel. There is no likelihood of a different

outcome on the resentencing, and the 1991 sentencing was neither unfair nor unreliable. See

Lockhart v. Fretwell, 

, 843 (1993). I dissent.




                                              -13-