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 id. comment. (n.1) ("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, 976 F.2d 242, 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." Id. comment. (n.4(b)). 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." Id. comment. (n.3(g)). 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 id. appl 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 Surasky, 976 F.2d at 245 (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"); Surasky, 976 F.2d at 245-46 & n.4. Those which did relate to the investigation-Phillips'sclaim not to know who owned the drugs or the station wagon and his refusal to clarify his relationship with the McCravy-were "a mere denial of guilt." Surasky, 976 F.2d at 245. These statements did not give the officers false information which led them on a misdirected investigation, nor did they impede the investigation. See id. at 245-47;3 cf. UnitedStates v. Smith, 203 F.3d 884, 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 investigation into her own and her co-conspirators' involvement"); United States v. Rickett, 89 F.3d 224, 226 (5th Cir. 1996) (finding that an obstruction enhancement was appropriate when a defendant gave officers 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, 79 F.3d 334, 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, 61 F.3d 410, 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. Williamson, 183 F.3d at 462-63 & n.7 (finding deficient performance when counsel did not cite "directly controlling precedent" which showed that a sentencing enhancement was improper);United States v. Kissick, 69 F.3d 1048, 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.").

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." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697-98, quoted in Williamson, 181 F.3d at 463 (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." Williamson, 181 F.3d at 463.

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." Id. at463. 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, 182 F.3d 361, 364 (5th Cir. 1999), cert. denied - U.S. -, 120 S. Ct. 1238, - L. Ed. 2d - (2000). Because application of 3C1.1 without an adequate factual basis is reversible error, see Surasky, 976 F.2d at 248, 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, 993 F.2d 85 (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." Id. at 88; see also United States v. Stewart, 207 F.3d 750, (5th Cir. March 24, 2000) (same). We 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 Spriggs, 993 F.2d at 88. 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." Id. ("Arguably, when the discretionary sentencing range is great, practically any error committed bycounsel could have ave 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 We, of 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. Id. at 88 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 whichwas at least thirty-seven months longer than appropriate given the district court's findings. Because this demonstrable enhancement was ultimately solely 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, 97 F.3d 1345, 1350 (10thCir. 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); Kissick, 69 F.3d at 1056 (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, 918 F.2d 1343, 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 "the proceeding [was] unfair or unreliable." Williamson, 183 F.3d at 463. 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 rejected finding perjury,6 and the government has not identified any part of the record which shows this was improper. Cf. United States v. Gonzalez, 163 F.3d 255, 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.

In sum, we find that Phillips's appellate counsel was ineffective for not challengingthe obstruction of justice enhancement on appeal. Accordingly, we VACATE the sentence and REMAND for resentencing not inconsistent with this opinion.7

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, 113 S. Ct. 1111, 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, 113 S. Ct. 838, 843 (1993). I dissent.