893 F.2d 1502
58 USLW 2446
UNITED STATES of America, Plaintiff-Appellee,v.William M. CARROLL, Defendant-Appellant.
No. 88-2260.
United States Court of Appeals,Sixth Circuit.
Argued July 31, 1989.Decided Jan. 9, 1990.

David Debold, argued, Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellee.
Jill L. Price, argued, Federal Public Defenders Office, Detroit, Mich., for defendant-appellant.
Before KRUPANSKY and RYAN, Circuit Judges, and WILHOIT, District Judge.*
RYAN, Circuit Judge.

1
This sentence guidelines appeal presents a meritorious assignment of error.

2
Because we conclude that the sentencing court erred as a matter of law in selecting the numerical value corresponding to the defendant's "role" in the offense in this case, and as a result necessarily came to a mistaken mathematical conclusion about the appropriate sentence guidelines range, we vacate the sentence and remand the case for resentencing.

I.

3
Before turning to the four meritless and one meritorious issues in this appeal, we should like to say a word, in dicta to be sure, about the ever increasing volume of sentence guidelines appeals being filed in this circuit, and presumably in others.

4
This is one in an ever increasing number of such appeals in which the principal thrust of the appeal is to attempt to persuade this court to second guess the sentencing judge's findings about the nature of the defendant's role in the offense, or his attitude about his guilt, or his criminal justice history;  and sometimes, as in this case, all three.

5
This appeal is unusual in that it presents a meritorious assignment of error.  In most of these appeals the sentenced offender is the appellant and his sole appellate purpose is obvious:  to obtain a more lenient sentence than was imposed by the district court.  When the government is the appellant, as it is with increasing frequency, its purpose, ordinarily, is to obtain a more severe sentence.

6
The usual request in these appeals is that we substitute our own findings of fact for those of the sentencing court and then recompute the "correct" sentence guideline range by introducing into the convoluted arithmetical sentencing guidelines formula different numerical values for the defendant's role in the offense, his attitude, and his criminal history than the sentencing court, and usually the probation department, thought to be appropriate.  To characterize this use of the resources of the United States Court of Appeals as imprudent is a very considerable understatement.

7
As the burgeoning volume of these sentence guidelines appeals begins to bloat the dockets of all the courts of appeals, we are necessarily spending more and more time doing nothing more than responding to appellants' pleas that we disagree with the factual determinations of sentencing judges and correct their mathematical computations.  In the vast majority of these cases, although not this particular one, after careful and exhaustive examination of the sentencing court's findings of facts and its arithmetical computations, our appellate scrutiny results in a conclusion, even where some minor mathematical mistake is identified, that the correct sentence range is exactly as determined by the sentencing court.  Part of the price that is paid for this kind of appellate drill is the unwarranted consumption of considerable time and energy that should be devoted to study, research, decision making, and opinion writing in an accumulating backlog of cases involving hundreds of jurisprudentially significant questions of state, federal, and constitutional law--functions for which the United States court of appeals was created.

8
It is not too late for Congress to reconsider whether the time and resources the courts of appeals are devoting to reviewing these sentence guideline cases, particularly in view of the essentially clerical nature of the current review function, can be better spent without sacrificing a sentenced defendant's entitlement to appropriate appellate review of the sentence imposed.

9
Meanwhile, we shall continue to undertake, as we have in this case, a detailed analysis of the correct application of the guidelines to the facts of individual cases in the hope that doing so will contribute to an early accumulation of a body of appellate precedent on the subject, looking to the day when most district court findings of fact and arithmetical computations in sentence guideline cases can be double checked without the full blown court of appeals briefing, oral argument, and opinion writing that should be reserved for jurisprudentially weightier matters.

II.

10
Appellant William M. Carroll attempted to escape from a federal correctional institute, pleaded guilty to doing so, was convicted and sentenced, and now appeals the district court's interpretation of the sentencing guidelines and the measure of proof by which the court required the government to prove the facts relied upon to compute the correct sentencing guidelines range.

11
Appellant argues that the district court erred in the following matters:

12
--Not requiring the government to prove by clear and convincing evidence the facts upon which it urged the district court to rely in determining the correct sentencing guidelines' values.

13
--Increasing appellant's base offense level by two levels for being an "organizer or leader."

14
--Increasing appellant's criminal history score by two points for committing an offense while under a criminal justice sentence.

15
--Increasing appellant's criminal history by two points for committing an offense within two years after release from custody.

16
--Denying appellant a two level reduction for acceptance of responsibility.

17
We agree with appellant that, as a matter of law, his base offense level could not be increased by two points on the theory that he was an organizer or leader under the "role in the offense" guideline.  The remaining assignments of error are without merit, but because of the "role in the offense" miscalculation, the sentence is vacated and the matter is remanded to the district court for resentencing.

III.

18
Carroll was serving a fifteen-year sentence for manufacturing counterfeit currency when, in February 1988, he asked another inmate whether the inmate knew anyone on the outside who could help Carroll escape from the Federal Correctional Institute in Milan, Michigan.  The inmate promptly alerted prison authorities who instructed the inmate to put Carroll in touch with an undercover FBI agent outside the prison who would pose as a helicopter pilot for hire.

19
Carroll telephoned the agent six times.  He also wrote several letters in which he detailed his escape plans in "invisible ink" (lemon juice).  Carroll planned to pay the agent and his helpers with $1,000,000 in counterfeit currency that he would then launder by purchasing cocaine from "a couple of Venezuelan brothers."    Carroll offered the agent an extra $250,000 if he could recruit one more assistant and indicated a willingness to pay an additional one million counterfeit dollars for the life of the "bastard who got me this 15 years."    In a later letter to the agent, Carroll identified that person, but told the agent to wait about six months so that the two could review details and defuse suspicion.

20
Carroll admitted that at the time scheduled for the escape, he was waiting for the helicopter in the designated place, was wearing predetermined clothing, and was signaling the pilot where to land.

21
Carroll was charged in a complaint with attempted escape, 18 U.S.C. Sec. 751, and solicitation to commit murder, 18 U.S.C. Sec. 13, relying, pursuant to the Assimilative Crimes Act, on Mich.Comp.Laws Sec. 750.157b (1989).  He pleaded guilty and was scheduled for sentencing on December 14, 1988.  As required by local court rule, appellant filed written objections to the calculation of his sentencing guidelines and renewed those objections orally at the time of his sentence.  He makes the same arguments on appeal that he made below.

22
At sentencing, Carroll did not dispute the initial determination that Guideline Sec. 2P1.1(a) assigns a base level of thirteen to his offense;  nor did he seriously dispute the court's finding that he initiated and planned the escape attempt.  Rather, Carroll objected to the government's argument that he deserved a two point base level increase, pursuant to Sec. 3B1.1(c), due to his "aggravating role" in the escape attempt.  Carroll maintained that because he was the only criminally responsible person alleged to have been involved in the offense, he could not rationally be treated as an "organizer or manager" within the language and intent of the applicable guideline--regardless of whether he planned the escape--because the escape involved no other "participants" as defined in the guidelines.  Carroll asserted that in this case he only organized himself and the guideline does not permit enhancement in such a situation.

23
Carroll also objected to the government's request to add two points to his criminal history score for having committed an offense while under a criminal justice sentence, and one point for commission of an offense within two years after release from custody.  He argued that because a defendant cannot commit the offense of escape unless he is under a criminal justice sentence, the two point addition to the criminal history score mandated by Sec. 4A1.1(d) is inappropriate in escape cases.  Carroll further argued that the commission of his offense prior to his release from custody renders Sec. 4A1.1(e) inapplicable.

24
Finally, Carroll argued that he was entitled to the two level "acceptance of responsibility" reduction.

25
The sentencing court accepted the government's position on every guideline issue.  The court began the sentencing computation by applying a base offense level of thirteen.  U.S.S.G. Sec. 2P1.1(a)(1).  In apparent reliance on the agent's affidavit that Carroll initiated the attempted escape, the district court increased the base by two levels due to Carroll's aggravating role in the offense, pursuant to Sec. 3B.1.  (c), for a total offense level of fifteen.  The court determined Carroll's criminal history category to be Five, based on twelve criminal history points, and gave Carroll no credit, pursuant to Sec. 3E1.1, for "acceptance of responsibility."    As a result of the various enhancements, the guidelines indicated that Carroll's sentence should range from thirty-seven to forty-six months.  The court imposed a sentence of forty months to run consecutive to Carroll's previous counterfeiting sentence, followed by three years' supervised release.

IV.
A.

26
Appellate review of sentences imposed under the guidelines is set forth at 18 U.S.C. Sec. 3742 (1989), which provides in pertinent part:

27
(e) Consideration.--Upon review of the record, the court of appeals shall determine whether the sentence--

28
(1) was imposed in violation of law;(2) was imposed as a result of an incorrect application of the sentencing guidelines;

29
....

30
The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.

31
(f) Decision and disposition.--If the court of appeals determines that the sentence--

32
(1) was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate....

33
Under the "due deference" standard of 18 U.S.C. Sec. 3742(e), the appellate review standard varies depending on whether an issue is factual, legal, or mixed.  United States v. Ortiz, 878 F.2d 125 (3d Cir.1989).

B.

34
Carroll first claims that the district court erred in not requiring the government to prove by clear and convincing evidence those facts upon which the court should rely in determining the sentence pursuant to the guidelines.1   We disagree.

35
As the Fourth Circuit recently noted in United States v. Urrego-Linares, 879 F.2d 1234 (4th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989), other courts examining the standard of proof required by the guidelines "have generally agreed that a preponderance standard is the proper measure."    See, e.g., United States v. Lovell, 715 F.Supp. 854 (W.D.Tenn.1989);  United States v. Dolan, 701 F.Supp. 138, 140 (E.D.Tenn.1988);  United States v. Silverman, 692 F.Supp. 788, 791 (S.D.Ohio 1988).  Moreover, although McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2418, 91 L.Ed.2d 67 (1986), was a pre-guidelines case, McMillan's due process analysis applies with equal force to federal courts.  See United States v. Lee, 818 F.2d 1052, 1057 (2d Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987);  United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir.1988).  In McMillan, the Supreme Court rejected a contention that a sentencing court must apply a clear and convincing standard to factual findings relevant to sentencing determinations.  The McMillan Court concluded that Pennsylvania's statutory requirement of proof by a preponderance satisfied due process, noting that "[s]entencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all."    477 U.S. at 91, 106 S.Ct. at 2419.

36
While the precise question whether the Constitution mandates proof of facts by at least a preponderance standard was not before the McMillan Court and is not before us, we certainly think the trial court's application of that standard here suffices.  We discern no reason to accept appellant's claim that the advent of a new sentencing system requires application of a standard higher than that accepted in McMillan.

C.

37
We turn next to Carroll's claim that the trial court erred by adding two points to the base level for his offense pursuant to Sec. 3B1.1(c).  Carroll argues that guideline Sec. 3B1.1 applies to organizers or leaders involved in "organizational crime" and that enhancement was improper in this case because he was the sole defendant alleged to have participated in this offense.

38
It is necessary for an adequate understanding of Carroll's argument and a resolution of the issue to burden our opinion by setting forth, in full, the relevant guidelines and related commentary:

PART B--ROLE IN THE OFFENSE
Introductory Commentary

39
The Part provides adjustments to the offense level based upon the role the defendant played in committing the offense.  When an offense is committed by more than one participant, Sec. 3B.1 or 3B.2 (or neither) may apply.  Section 3B1.3 may apply to offenses committed by any number of participants.

Sec. 3B1.1 Aggravating Role

40
Based on the defendant's role in the offense, increase the offense level as follows:

41
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

42
(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

43
(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.

Commentary
Application Notes:

44
1.   A "participant" is a person who is criminally responsible for the commission of the offense, but need not have been convicted.

45
....

46
3. ... This adjustment does not apply to a defendant who merely suggests committing the offense.

47
....

48
Sec. 3B1.4 In any other case, no adjustment is made for role in the offense.

Commentary

49
Many offenses are committed by a single individual or by individuals of roughly equal culpability so that none of them will receive an adjustment under this Part.

50
The introductory commentary to the "Role in the Offense" enhancement provision states that Sec. 3B1.1 may apply "when an offense is committed by more than one participant."    The commentary to the same section defines "participant" as any "person who is criminally responsible for commission of the offense" with which the defendant has been charged.  Because Carroll only "organized" law enforcement authorities--persons who could not have been "criminally responsible"--it is undisputed that Carroll's crime involved only one offender and, therefore, no criminal organization or enterprise.

51
The government maintains that enhancement was appropriate because the commentary referring to, and apparently requiring, "participants" is merely equivalent to legislative history that should be ignored when the plain language of the guideline is clear.  See Sec. 1B1.7, Comment.;    McBarron v. S & T Industries, Inc., 771 F.2d 94, 97 (6th Cir.1985).  The government argues that although

52
the word "participants" is explicitly used in the two previous subsections, ... in the subsection in question, the term "any criminal activity other than described [in the two previous sections]" is substituted.  Thus, no magic number of "participants" need be proven, by the plain language of the guideline.  The Introductory Commentary does not state that the Aggravating Role adjustments (Sec. 3B1.1) apply only to offenses committed by more than one participant.  It merely provides a general rule--an overview or "Introduction" to the entire chapter;  it is not tailored to the specific and peculiar situation presented in this case where the defendant unwittingly attempts to organize the non-culpable.

53
In further support of its reading of the guideline, the government asserts the following:The purposes behind an "organizer or leader" adjustment include punishing more severely those who are more likely to profit and those who, by virtue of their willingness to lead, "present a greater danger to the public and/or are more likely to recidivate."  Sec.   3B1.1, Commentary (Background).  These purposes are just as applicable when the defendant unwittingly tries to organize and lead non-criminals.  In short, this defendant should be subject to the same sentencing range as a defendant who, by luck, picks a fellow inmate who is willing to break the law and who hires a real pilot on the outside who will jump at the chance to make two million dollars in counterfeit currency that can be laundered through drug deals.

54
Our review of this guidelines construction issue is plenary.  United States v. Ofchinick, 877 F.2d 251, 256 (3d Cir.1989);  18 U.S.C. Sec. 3742(f)(1).

55
We disagree with both the government's reading of the guideline and its characterization of Carroll as a leader.  With respect to the government's argument that the "participants" requirement should be treated as superfluous legislative history creating an ambiguity in an otherwise clear statute, we note that, unlike traditional legislative history which is often written by legislative staff and not subject to congressional vote, the commentary here accompanies and is printed between the various guideline provisions in the Guidelines Manual, an official publication of the United States Sentencing Commission.  Furthermore, the government's authority for treating commentary as legislative history is actually found in the commentary to another guideline whose language indicates that the commentary has greater significance than the government recognizes.  That introductory guideline and its commentary states:

Sec. 1B1.7 Significance of Commentary

56
The Commentary that accompanies the guideline sections may serve a number of purposes.  First, it may interpret the guideline or explain how it is to be applied.  Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal.  See 18 U.S.C. Sec. 3742.

57
....

Commentary

58
Portions of this document not labeled as guidelines or commentary also express the policy of the Commission or provide guidance as to the interpretation and application of the guidelines.  These are to be construed as commentary and thus have the force of policy statements.

59
In stating that failure to follow certain commentary "could constitute an incorrect application of the guidelines," the Commission simply means that in seeking to understand the meaning of the guidelines courts likely will look to the commentary for guidance as an indication of the intent of those who wrote them.  In such instances, the courts will treat the commentary much like legislative history or other legal material that helps determine the intent of the drafter.

60
It is disingenuous for the government to cite the commentary as support for its argument that we should ignore the commentary.

61
While we recognize and accept the government's argument that one of the purposes of this enhancement section is to punish more severely those who, like Carroll, are "willing to lead," the background to Sec. 3B1.1, from which the government also selectively quotes, indicates that leadership of culpable individuals is necessary.  The background explains that "[t]his section provides a range of adjustments to increase the offense level based upon the size of a criminal organization (i.e., the number of participants in the offense) and the degree to which the defendant was responsible for committing the offense."    U.S.S.G. Sec. 3B1.1, Comment, (backg'd.)  (emphasis added).  The government ignores the underscored conjunction and, therefore, the first half of the sentence.  The government also fails to address those portions of the commentary to Sec. 3B1.1 indicating the following:

62
This adjustment does not apply to a defendant who merely suggests committing the offense.

63
....

64
In relatively small criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation, the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility.  This is reflected in the inclusiveness of Sec. 3B1.1(c).

65
While Carroll may have suggested a prison escape, the government, unbeknownst to Carroll, had actually taken over and was actually organizing the operation.2   Just as the government cannot claim that a defendant conspired with a government agent because "proof of an agreement between a defendant and a government agent or informer will not support a conspiracy," United States v. Pennell, 737 F.2d 521, 536 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985), the government cannot claim that Carroll was leading or organizing government agents.  When read in context, the language of the guideline indicates that its drafters did not seek to provide "supervisory" enhancement in a case such as this.  Rather, like conspiracy, this guideline requires that a defendant engage in criminal activity with at least one other criminally culpable person.  To accept the government's argument that Sec. 3B1.1(c) should be read exclusive of the commentary would permit enhancement where a single offender engaged in what could be considered an "otherwise extensive" criminal activity by the mere fact that the activity involved use of the services of several innocent people.  We hold that enhancement pursuant to Sec. 3B1.1 requires the participation of at least two culpable individuals so that leadership of some criminal enterprise or organization, however minimal, can be claimed.

D.

66
Appellant next challenges the increase of his criminal history score by two points for the "commission of the instant offense while under any criminal justice sentence," Sec. 4A1.1(d), and by one point for the "commission of the instant offense less than two years after the release from imprisonment," Sec. 4A1.1.  (e).  Those sections provide in pertinent part:

67
CHAPTER FOUR--CRIMINAL HISTORY AND CRIMINAL LIVELIHOOD

PART A--CRIMINAL HISTORY

68
....

Sec. 4A1.1 Criminal History Category

69
The total points from items (a) through (e) determine the criminal history category in the Sentencing Table in Chapter Five, Part A.

70
(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month.

71
(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).

72
(c) Add 1 point for each prior sentence not included in (a) or (b), up to a total of 4 points for this item.

73
(d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.

74
(e) Add 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under (a) or (b).  If 2 points are added for item (d), add only 1 point for this item.

75
Carroll maintains that because he was charged with escape, the base offense level implicitly included punishment for an offense committed while under sentence since, by definition, one cannot escape unless one is under a criminal justice sentence.  Carroll argues that the additional two point increase is a double punishment.

76
In calculating Carroll's criminal history points, the probation department report relied on the language of the enhancing guideline and on the answer to Question 22 of the Sentencing Commission's "Questions Most Frequently Asked About The Sentencing Guidelines," issued on May 5, 1988.  In that publication, the Commission stated that in drafting the guidelines the Commission intended that courts would impose two criminal history points for Sec. 4A1.1(d) and one point for Sec. 4A1.1(e) when sentencing escape offenders.3   The trial court adopted the probation department's calculation of the criminal history score, noting reliance on the Sentencing Commission's commentary.

77
In agreement with the Third and Tenth Circuits, we note that the language of Guideline Sec. 4A1.1 does not support a different result.  See United States v. Ofchinick, 877 F.2d 251 (3d Cir.1989) (defendant convicted of escape from custody may receive criminal history enhancement under Guideline Secs. 4A1.1(d) and (e) for escaping while under a sentence of imprisonment and while still in confinement, even though being in custody is an element of the offense);  United States v. Goldbaum, 879 F.2d 811 (10th Cir.1989) (affirming use of Guideline Sec. 4A1.1(d) to add two points to criminal history score of defendant convicted of escape).  But see United States v. Clark, 711 F.Supp. 736 (S.D.N.Y.1989) (such use constitutes double counting);  United States v. Bell, 716 F.Supp. 1207 (Minn.1989) (same holding).

78
The language of Sec. 4A1.1(d) indicates that that provision applies to all offenses committed while imprisoned.  The commentary to the guidelines often cautions against double counting in particular areas, but fails to indicate that adding three points here would violate that principle.  Because the language of the guidelines fails to support his argument, Carroll claims that it was never the Commission's intent to enhance the base offense level for escape.  But as the sentencing court recognized, the Sentencing Commission's answer to this specific question disproves Carroll's argument that the Commission intended, through the assignment of a base level of thirteen, to account for the fact that the offense was committed while under a sentence.  Moreover, "[t]he structure of the Sentencing Guidelines suggests that the criminal history category is to be determined without regard to the nature of the crime for which the defendant is currently being sentenced."    Goldbaum, 879 F.2d at 813, citing United States v. Reyes-Ruiz, 868 F.2d 698, 700 (5th Cir.1989).

79
The better inference is that the Commission chose not to propose an even higher base level for escape offenses because it anticipated that a separate upward adjustment in the criminal history category would produce a similar result.  The Goldbaum court stated:

80
[I]n the absence of any contrary intent we must apply the clear language of the guideline and presume that in formulating the base level specified for the crime of escape in Guideline Sec. 2P1.1, the Sentencing Commission had in mind that under Guidelines Secs. 4A1.1(d) and (e), points would be added to the particular defendant's criminal history category thereby enhancing the sentence.

81
Carroll also maintains that the court made an interpretation error by adding one point under guideline Sec. 4A1.1(e), which provides that one or two points shall be added to the criminal history category "if the defendant committed the instant offense less than two years after release from imprisonment."    Carroll argues that this guideline is inapplicable to his situation because he was obviously not released before he committed the offense.

82
This claim was recently rejected by the Fourth and Tenth Circuits.  See United States v. Ofchinick, 877 F.2d 251, 256-57 (3d Cir.1989);  United States v. Goldbaum, 879 F.2d 811 (10th Cir.1989).  The Ofchinick court indicated:

83
Unquestionably the language of the guideline supports [appellant's] interpretation.  However, application note 5 to guideline Sec. 4A1.1 indicates that guideline Sec. 4A1.1.  (e) "applies if the defendant committed the instant offense while still in confinement on such a sentence."    Guideline Sec. 1B1.7 provides that the commentary, which includes the application notes, may be used to "interpret the guideline or explain how it is to be applied."    Thus, there is no question but that the computation of [appellant]'s criminal history category was consistent with the intent of the Sentencing Commission.

84
Thus, while we recognize the inconsistency between the guideline and the note, we do not see how we cannot follow the note, as the Sentencing Commission issued both the guidelines and the commentary in its official Guidelines Manual.  This is not the usual case in which we are asked to accept legislative history such as committee reports, or even testimony of a witness before a committee, to determine the intent of Congress as a whole.

85
(Footnote omitted.)

86
Like the Fourth Circuit, we recognize that the commentary accompanying the Sentencing Guidelines Manual is unusually probative of the Commission's intent on this issue.  We also recognize that a recent amendment to this section, which took effect on November 1, 1989, supports our interpretation by adding "or while in imprisonment or escape status on such a sentence" to the end of the first sentence of the guideline.  "Inasmuch as the amendment to the guideline is intended to clarify the existing guideline, we may give it substantial weight in determining the meaning of the existing guideline."    Ofchinick, 877 F.2d at 257 n. 9.    We affirm the sentencing court's application of the guidelines to determine Carroll's criminal history category.

E.

87
Finally, Carroll contests the district court's refusal to grant him a two level offense reduction for his "acceptance of responsibility" as permitted by Sec. 3E1.1 of the guidelines.  Carroll maintains that he should have received the two level reduction because he waived indictment and pleaded guilty within two weeks of his initial appearance on the complaint.  The district court disagreed, concluding that Carroll had not "expressed any remorse" and was only "trying to be [as] persuasive as possible ... to pay the minimum to what he did to himself."

88
This circuit recently discussed the standard for reviewing a district court's "acceptance of responsibility" determination in United States v. Wilson, 878 F.2d 921 (6th Cir.1989).  Quoting United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989), we explained:

89
Whether or not a defendant has accepted responsibility for his crime is a factual question.  The district court's determination of that question, like its findings with respect to manager status, and minimal participant status, enjoys the protection of the "clearly erroneous" standard.  Because the trial court's assessment of a defendant's contrition will depend heavily on credibility assessments, the "clearly erroneous" standard will nearly always sustain the judgment of the district court in this area.  Indeed, the guidelines specifically state that "[t]he sentencing judge is in a unique position to evaluate the defendant's acceptance of responsibility.  For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation."

90
(Citations omitted.)

91
A guilty plea does not automatically entitle a defendant to the acceptance of responsibility reduction.  See Sec. 3E1.1.  (c).  Although a guilty plea may provide some evidence of a defendant's acceptance of responsibility, that acceptance remains questionable where, as here, the plea may have been induced by factors of overwhelming evidence of guilt and desire to avoid the risk of conviction on other charges, such as solicitation to murder.  Carroll's continued insistence that the inmate-informant had initially approached him further supports the court's conclusion that Carroll had not accepted full responsibility for the offense.

92
Finally, the factors that Sec. 3E1.1's commentary lists as appropriate to consider in deciding whether to apply the "acceptance of responsibility" reduction hardly apply to Carroll.  Carroll did not voluntarily withdraw from or terminate his criminal conduct prior to his apprehension or in some other way timely manifest through his conduct an acceptance of responsibility.  Carroll merely entered a guilty plea in the face of almost certain conviction.  The district court was in a much better position to observe Carroll's demeanor, and whether we agree with its ruling is not the issue.  The real question is whether the district court's finding of fact in the matter is clearly erroneous.  Plainly, it is not.

V.

93
For the reasons given, appellant's sentence is VACATED and the matter is REMANDED for resentencing.

*
 The Honorable Henry R. Wilhoit, Jr., United States District Judge for the Eastern District of Kentucky, sitting by designation

1
 Both parties agree that the burden of persuading the court that an aggravating factor applies remains with the government.  The parties do not address, so neither do we, whether the government should also be required to disprove application of mitigating factors or whether the burden of persuading the court that a point reduction applies should shift to the defendant seeking the reduction.  See United States v. Lovell, 715 F.Supp. 854 (W.D.Tenn.1989) (shifting burden of persuasion);  United States v. Dolan, 701 F.Supp. 138, 140 (E.D.Tenn.1988) (burden remains on government at all times)

2
 The government might have arrested Carroll after he had spoken only to the informant.  Obviously the government's evidence would not have been nearly as compelling, but the crime would have been the same.  Instead, the government organized and orchestrated its own scheme, introducing Carroll to an agent who was able to obtain the incriminating evidence that led to Carroll's guilty plea by appearing to participate in the planned escape

3
 Question 22 provides in pertinent part:

22
 In a case involving escape from prison (or work release) as the instant offense, does the defendant receive two criminal history points for Sec. 4A1.1(d) and one more for Sec. 4A1.1(e)?
Yes, providing the prior sentence of imprisonment (or work release from confinement) is at least 60 days.  The defendant receives two points pursuant to Sec. 4A1.1(d) for committing the instant offense while under any criminal justice sentence.  Another point is received for committing the offense less than two years after release from imprisonment on a sentence of at least 60 days (Sec. 4A1.1(e)).  As stated in Application Note # 5, Sec. 4A1.1(e) "also applies if the defendant committed the instant offense while still in confinement on such a sentence."


640 N.E.2d 981 (1994)
267 Ill. App.3d 82
203 Ill.Dec. 831
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Jennarah WILLIAMS, Defendant-Appellant.
No. 2-93-0822.
Appellate Court of Illinois, Second District.
September 27, 1994.
*982 Edward E. Robinson, Edward E. Robinson, Ltd., Chicago, for Jennerah Williams.
Michael J. Waller, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, State's Atty. Appellate Prosecutor, Elgin, Robert J. Biderman, David E. Mannchen, Staff Attorney, State's Atty. Appellate Serv. Comm., Springfield, for people.
Justice BOWMAN delivered the opinion of the court:
Defendant, Jennarah Williams, was convicted by a jury of two counts of resisting arrest and two counts of criminal battery. On one count of resisting arrest the court sentenced defendant to one year of court supervision, a $100 fine, and 50 hours of community service. On one count of battery she was sentenced to a one-year conditional discharge, to be served concurrently with her court supervision for resisting arrest; a fine of $100; and 50 additional hours of community service. On appeal defendant raises numerous discovery and evidentiary issues, claims the trial court was biased against her, and asserts the trial court erred in (1) denying her motion to quash arrest and suppress evidence, (2) denying her motion for mistrial, (3) refusing a jury instruction tendered by her, and (4) allowing the State to refile charges previously nol-prossed. We affirm.
On the morning of December 23, 1991, defendant was driving her automobile eastbound on Grandville Avenue in a residential area of the Village of Gurnee. As defendant approached an intersection, Gurnee police officer Kotrba was pulling up to the stop sign for the cross street of the intersection. The officer observed that there was no license plate on the front of defendant's auto. Since Grandville did not have a stop sign, defendant proceeded to enter the intersection even though, according to defendant's testimony, Kotrba drove in such a way that she was afraid he would not stop. After defendant passed by him, Kotrba observed that her *983 rear license plate reflected an Illinois registration. Kotrba then turned onto Grandville and followed defendant but did not speed up or immediately activate his siren or lights, or otherwise signal to defendant to stop. A number of blocks, and several turns and stops later, Kotrba stopped defendant. Defendant testified that the police officer was directly behind her the whole time he followed her, while Kotrba said he delayed activating his lights until he caught up with defendant.
According to defendant's testimony, Kotrba did not say anything to her at first. He just walked toward the front of her car. She asked if there was something wrong, but Kotrba did not answer. He walked around to the back of the car and finally came back to the driver's window and told her she had no front license plate and had failed to signal a left turn she made off of Grandville. The officer asked for her name and address rather than her driver's license. Kotrba contradicted this testimony, claiming he asked defendant for her license six times. Defendant said she did not give the officer her name because she was puzzled and confused as to why he had not stopped her sooner and by his conduct after the stop. Because she would not give her name, Kotrba called for backup and, a few minutes later, several patrol cars converged on the area.
Defendant opened her car door to see what was going on. A man dressed in plain clothes spoke with Kotrba and then came over to her car and said, "baby girl, you can't do this." Although her testimony was later impeached, defendant stated during direct examination that the man did not identify himself as a police officer. She found out later that the man was Gurnee Police Chief John Ward. After a few moments defendant started to close the car door against the cold air, but Ward stopped her, said that he had had "enough of this," and reached through the door and grabbed defendant by the right wrist. Defendant, in turn, grabbed Ward's wrist, and Ward told her to turn him loose. When defendant immediately demanded that she also be let go, Ward released her wrist. Defendant then gave Ward her driver's license and stepped out of her car. The license turned out to be suspended, so the police told her they were going to take her to the station. A female officer, Sergeant Kincaid, put handcuffs on defendant, and she was placed in the back of a squad car.
The respective testimony of Officer Kotrba and Chief Ward regarding the occurrence leading to the charges against defendant was very similar and revealed the following sequence of events. When he arrived at the scene Chief Ward squatted or kneeled down next to the open window of defendant's car, showed her his badge, identified himself as chief of police, and asked if there was a problem. She responded that Kotrba had pulled her over for no reason. Ward told her that Kotrba stated she turned without signaling and had no front license plate. He explained that Kotrba needed her driver's license to issue two citations, and she would then be allowed to leave. Ward asked for defendant's driver's license three or four times before Kotrba told him the license of the registered owner of the car had been suspended. The description of the registered owner matched that of the defendant. Defendant refused still another request for her driver's license, commenting to the effect that she had done nothing wrong and that Officer Kotrba was picking on her.
The officers then told defendant that they were going to have to place her under arrest for driving on a suspended license. Still insisting she had done nothing wrong, defendant said she was not going anywhere and, according to Kotrba, locked her car door. Ward then reached through the open window to open the door from the inside, and defendant began to roll up the window. Kotrba put his weight on the window to stop it, and defendant grasped Ward's hand, scratching his palm deeply enough to draw blood. Ward released the inside doorknob and grabbed hold of defendant's wrist to restrain her. Kotrba then also reached inside the vehicle to try to unlock the door, but defendant slapped his hand away. On a second try, Kotrba successfully opened the car door, and the two officers stepped away from the vehicle. At that point defendant offered her driver's license which, indeed, had been suspended. She then got out of her car and was *984 placed in the back of one of the squad cars until Sergeant Kincaid, who had been called to the scene by Kotrba and Ward, arrived. Kincaid testified that defendant was upset in that she seemed nervous and angry about the whole situation. Defendant was not uncooperative and seemed to Kincaid to be confused about what was going on.
Defendant was issued traffic citations for the missing license plate, for driving with a suspended driver's license, and for failure to signal a left turn. She was also served with a complaint for criminal battery. The traffic matters were resolved in due course in January 1992, and the battery charge was dismissed for want of prosecution. The resisting arrest charge in this case was initially filed under a citation but was dismissed in January 1992 for failure to file formal charges. An information on a charge of battery was subsequently filed and docketed but nol-prossed in July 1992. The informations in this case, for battery and resisting arrest, were filed in August 1992. At some time after the resisting arrest charge was initially filed, defendant wrote a letter of complaint concerning the incident to the Gurnee police department. She also filed a complaint with the sheriff's department of Lake County. Following her conviction and the denial of her post-trial motion, defendant filed this appeal.
Defendant presents 11 issues for our consideration. The bulk of these involve discovery and evidentiary rulings by the trial court, and the remainder assert a variety of errors. However, with regard to a number of issues, defendant's brief totally fails to comply with the requirements set forth by our supreme court. Supreme Court Rule 341(e)(7) (134 Ill.2d R. 341(e)(7)) clearly states that the argument section of appellant's brief "shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal * * * where evidence may be found." Each of defendant's issues I, II, IV, VI, and XI consists of one paragraph of discussion, with no references to the pages of the record relied upon, and no citation to any authority. Moreover, the discussions do not clearly set forth defendant's contentions or the reasoning underlying those contentions. Rather, some of them state a few facts and then announce a conclusory allegation, but do not show how the conclusion was reached. Others simply make bald assertions or accusations with no support at all. Points raised but not argued or supported by citation to relevant authority do not satisfy the requirements of Supreme Court Rule 341(e)(7) (134 Ill.2d R. 341(e)(7)) and may be deemed waived. (People v. Patterson (1992), 154 Ill.2d 414, 455, 182 Ill.Dec. 592, 610 N.E.2d 16.) A contention on appeal will be waived when it is supported only by conclusory statements, with no citation to authority. (People v. Carpenter (1992), 228 Ill.App.3d 899, 904-05, 170 Ill.Dec. 928, 593 N.E.2d 817.) The appellate court is not a depository in which defendant may dump the burden of argument and research. (People v. Payton (1991), 208 Ill.App.3d 658, 663, 153 Ill.Dec. 582, 567 N.E.2d 540.) Rather, we are entitled to a well-reasoned argument, along with the authority for such argument. (134 Ill.2d R. 341(e)(7); People v. Ethridge (1993), 243 Ill.App.3d 446, 470, 183 Ill.Dec. 61, 610 N.E.2d 1305.) In light of defendant's failure to comply with the rule, we consider issues I, II, IV, VI, and XI waived.
Defendant fares little better with regard to issue III. She claims she was improperly denied an opportunity to present evidence regarding Officer Kotrba's training and disciplinary record. While defendant does not make it clear, it appears the trial court denied defendant's motion to compel discovery of this information. Her argument seems to be that Kotrba's allegedly odd behavior before and in the course of the stop may have reflected a serious discipline problem, and he, wishing to avoid another disciplinary incident, may have been motivated to testify falsely regarding the stop.
Defendant cites People v. Phillips (1981), 95 Ill.App.3d 1013, 51 Ill.Dec. 423, 420 N.E.2d 837, in support of her argument. Phillips, however, did not present the problem that exists in this case. One of the issues in Phillips was whether the officer's *985 account of a shooting, in which he was involved, was true. Evidence of the officer's prior suspensions was improperly excluded since it was relevant to the officer's motive to testify falsely in order to avoid still another suspension. In contrast, despite defendant's effort to dwell on it, in this case the issue is not whether Kotrba told the truth about the manner in which he conducted the stop of defendant. The issue is whether defendant committed the offenses of battery and resisting arrest. Defendant does not explain how Kotrba's veracity about the procedures followed during the stop is relevant to the question of her guilt or innocence. Absent a showing of relevance, an order compelling discovery of the information sought by defendant would have amounted to nothing more than a fishing expedition. In deciding a discovery motion, it is the trial court's task to determine the relevance and materiality of the materials sought. (People v. Gomez (1992), 236 Ill.App.3d 283, 292, 177 Ill.Dec. 632, 603 N.E.2d 702.) The trial court has broad discretion in ruling on issues of relevance and materiality and its determination will not be disturbed absent an abuse of discretion. (Gomez, 236 Ill.App.3d at 292, 177 Ill.Dec. 632, 603 N.E.2d 702.) We find no such abuse in the trial court's denial of defendant's discovery motion.
The reasoning that applies to issue III also applies to issue X. Defendant claims the court erred when it quashed defendant's subpoena for a variety of police department records and records from the auto garage which towed defendant's car. We note that the State initially responds that this matter does not involve a subpoena, but only the motion to compel discovery discussed above. However, whether we consider this to be a case of a subpoena or a discovery motion does not matter. Either way, defendant cannot prevail.
As just discussed, whether discovery should be allowed is dependent upon the relevance and materiality of the information to be discovered. Similarly, the issuance of a pretrial subpoena requires, among other things, that the documents sought be evidentiary and relevant. (See People v. Shukovsky (1988), 128 Ill.2d 210, 225, 131 Ill.Dec. 69, 538 N.E.2d 444, citing United States v. Nixon (1974), 418 U.S. 683, 699-700, 94 S.Ct. 3090, 3103, 41 L.Ed.2d 1039, 1059; People ex rel. Fisher v. Carey (1979), 77 Ill.2d 259, 269, 32 Ill.Dec. 904, 396 N.E.2d 17.) Once again, defendant fails to demonstrate how any of the documents she sought was relevant to the issues before the jury. She seems to claim she had a right to the information, but absent relevance to the issues, the allowance of the subpoenas would have amounted to another mere fishing expedition. (See Shukovsky, 128 Ill.2d at 225, 131 Ill.Dec. 69, 538 N.E.2d 444.) The trial court did not abuse its discretion on this matter.
In issue V defendant contends that the evidence raised the possibility that, even if she resisted arrest, her conduct was justified on the ground that she was acting reasonably to defend herself. She correctly points out that a defendant is entitled to jury instructions which present her theories of the case when the evidence supports such theories, and even very slight evidence upon a given theory will warrant the giving of an instruction. (People v. Lyda (1989), 190 Ill. App.3d 540, 544, 137 Ill.Dec. 405, 546 N.E.2d 29.) She concludes that the trial court improperly refused to give the jury the following instruction:
"A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend [(himself)* * *] against the imminent use of unlawful force." (Illinois Pattern Jury Instructions, Criminal, No. 24-25.06 (3d ed. 1992) (hereinafter IPI Criminal 3d).)
The State responds that the self-defense instruction was properly rejected since there was no evidence to support it. We agree.
In Illinois, one may not use force to resist arrest by a known peace officer, even if the arrest is unlawful. (Ill.Rev.Stat.1991, ch. 38, par. 7-7 (now 720 ILCS 5/7-7 (West 1992)); People v. Bailey (1982), 108 Ill. App.3d 392, 398, 64 Ill.Dec. 75, 439 N.E.2d 4.) An exception is made to this rule for situations in which an officer uses excessive force. Use of such force invokes the right of self-defense. (Ill.Rev.Stat.1991, ch. 38, par. 7-1 (now 720 ILCS 5/7-1 (West 1992)); Bailey, *986 108 Ill.App.3d at 398, 64 Ill.Dec. 75, 439 N.E.2d 4.) Hence, an instruction on self-defense is required in a resisting arrest case only when the defendant is not aware of the police officer's identity or there is evidence of excessive force on the part of the arresting officer. According to defendant's argument, the evidence showed that she did not know Ward was a police officer and when she scratched his hand and pushed away Office Kotrba's hand she was only trying to defend herself from what she characterizes as the "bizarre and offensive conduct of a police officer and his firend [sic] in a trench coat." Specifically, she cites her testimony that Chief Ward, who was dressed in plain clothes, never identified himself as a peace officer or told her she was being placed under arrest, but reached into her car and grabbed her wrist, as though to pull her from the car, saying he was "tired of this." Once again, it is not clear from defendant's brief, but she appears to argue that, because they allegedly would not tell her what was going on, and then grabbed her wrist, she was fearful that the uniformed officer and the other man might harm her, and she felt it necessary to defend herself. The record does not support this argument.
According to defendant's own testimony, she heard Kotrba say into his radio that he had a situation. Two or three minutes later several patrol cars converged on the area with their lights flashing, she saw Kotrba talking to Ward, and Ward approached her directly. This evidence reflects that Ward was also a police officer and does not support defendant's implication that she reasonably feared Ward might be a stranger acting in concert with Kotrba to use unlawful force against her. More significantly, there is no evidence the police used excessive force. Defendant testified that all Ward did was reach through the car door and grab her by the wrist in order to get her out of the car. Ward acted only after defendant had repeatedly failed to respond to questions and, according to Ward, after she had scratched his hand. Even then, when defendant took hold of Ward's wrist and told him to let her go, Ward did so.
Finally, the evidence does not demonstrate that defendant was in fear of the police or the possible use of excessive force. When Ward grabbed her wrist, she responded immediately by grabbing his wrist with her other hand. When told to let go, she demanded to be let go herself. Although defendant expressed that she was surprised, confused, and did not understand what was happening during the incident, she never testified that she was afraid. Sergeant Kincaid also related that defendant seemed confused and nervous. While Kincaid recounted her impression that defendant seemed angry, the officer never mentioned that defendant appeared fearful. This evidence does not reflect a person acting out of fear of the police officers. All in all, the evidence was not sufficient to require a self-defense instruction, and the trial court did not err in refusing to give one. We agree with the State that the cases cited by defendant, People v. Veatch (1986), 145 Ill.App.3d 23, 99 Ill.Dec. 227, 495 N.E.2d 674, and People v. Lyda (1989), 190 Ill.App.3d 540, 137 Ill.Dec. 405, 546 N.E.2d 29, involved truly brutal and excessive conduct by police, which warranted an instruction on defense of others. The evidence here of excessive force does not even come close to being comparable.
There is no merit to defendant's issue VII. She claims she was denied a fair trial due to the trial court's bias and hostility towards her. However, we have examined the report of proceedings of the trial and find that it does not support this contention. Defendant's sweeping statement that "the record speaks for itself" is of little help in our review. More specifically, what defendant calls a "severe admonishment" occurred as a result of a dialog in which defense counsel and the trial judge were talking one over the other. The court's comments amounted to little more than a direction to counsel not to talk when the court is talking and a recitation by the court of the very practical fact that, when counsel and the court are talking at the same time, the court reporter will take down only the court's remarks. We doubt that such brief remarks of the sort made here are fairly characterized as a "severe admonishment," as asserted by defendant. In any event, they certainly do not reflect *987 any court bias against defendant. Moreover, they were made outside the presence of the jury and could not have affected the jury's verdict.
Defendant also focuses on a threat by the court to cite counsel for contempt. The court and both counsel had just completed an extended discussion concerning defense counsel's desire to question Chief Ward on a number of topics. The court held that, among others subjects, counsel could not ask about police department policies regarding traffic stops. The jury was brought back in, and the very first question counsel asked the chief concerned such policies. At the bench the court asked counsel what he was doing, reminding him that he had been told he could not ask that question. Counsel said that was not his understanding, and the following dialog ensued:
"THE COURT: What do you think I just said the last fifteen minutes.
MR. ROBINSON: Well, you certainly covered a lot of points.
THE COURT: Am I too confusing for you?
MR. ROBINSON: No.
THE COURT: Do you want me to write them down for you?
MR. ROBINSON: I don't think so.
THE COURT: Counsel, if you don't abide by the rulings of the Court, I'm going to hold you in contempt of Court. This is the last warning I'm giving you. Do you understand me?"
In our view this record reflects, at worst, a deliberate defiance of the rulings of the court by defense counsel, or, at the very least, a callous disregard for the authority of the court. Under the circumstances, the court was justified in warning counsel. In no way do we perceive the court's comments as a reflection of any continuing bias or hostility toward defendant. Defendant makes the allegation that the court never made any comparable threat against the prosecutor for similar conduct, but provides no citation to the record where we might find an example of such similar conduct. Finally, similar to the admonishment, the contempt threat occurred at the bench, outside the hearing of the jury. Accordingly, there is no basis for defendant's claim that the conduct of the trial court resulted in an unfair trial.
In the eighth issue defendant posits that the trial court erred in allowing the State to refile charges against her that had been previously nol-prossed and to add two new counts. Defendant contends that the charges, which she characterizes as capricious or vexatious, were made in a context that strongly implied retaliation against her for filing complaints of police misconduct with the police department and the sheriff's office. However, after defendant recites that she advised the trial court about this matter, she adds that the court was not interested and "the matter was dropped by * * * counsel as a futile exercise." Thus, it appears defendant simply did not pursue this issue in the trial court where, as the State points out, an evidentiary hearing could have been held and a record established. The party making an assertion of error is responsible for preserving the error and presenting a sufficient record for review. (People v. Turner (1993), 249 Ill.App.3d 474, 481-82, 189 Ill.Dec. 80, 619 N.E.2d 781.) Moreover, as a general rule arguments raised for the first time on appeal are deemed waived. (People v. Wych (1993), 248 Ill.App.3d 818, 825, 187 Ill.Dec. 564, 617 N.E.2d 1285.) Accordingly, we consider this issue waived.
In the only issue remaining, issue IX, defendant urges that the trial court erred in denying her motion to quash arrest and suppress evidence. The motion was based on the undisputed fact that the arrest, and the conduct which resulted in the charges in this case against defendant, took place outside the Village of Gurnee. Defendant correctly points out that the facts of this case are not exactly the same as those in People v. Carraher (1990), 199 Ill.App.3d 965, 146 Ill.Dec. 33, 557 N.E.2d 975, or People v. DeBlieck (1989), 181 Ill.App.3d 600, 130 Ill.Dec. 321, 537 N.E.2d 388, cases evidently relied upon by the trial court. On the other hand, defendant cites no authority whatsoever for the contention that her arrest should have been quashed. In fact, defendant seems to attack not so much the arrest itself, but the resisting and battery charges, since those arose *988 entirely outside the Village of Gurnee and, therefore, outside Kotrba'a jurisdiction. We find no merit in this argument.
The finding of the trial court relative to a motion to quash an arrest will not be disturbed on review unless it is manifestly erroneous. (People v. Villarreal (1992), 152 Ill.2d 368, 373, 178 Ill.Dec. 400, 604 N.E.2d 923.) The trial court here made no such error. We recently held in Village of Prairie Grove v. Sutton (1994), 260 Ill.App.3d 682, 198 Ill.Dec. 700, 633 N.E.2d 162, that, under Carraher, police officers could arrest motorists outside the officers' jurisdictions for offenses committed inside those jurisdictions. (See Carraher, 199 Ill.App.3d at 970-71, 146 Ill.Dec. 33, 557 N.E.2d 975; see also People v. Pollard (1991), 216 Ill.App.3d 591, 159 Ill.Dec. 163, 575 N.E.2d 970; People v. Thompson (1991), 215 Ill.App.3d 514, 159 Ill.Dec. 27, 575 N.E.2d 256.) In Carraher we had relied on section 107-5(c) of the Code of Criminal Procedure of 1963, which permits police to make an arrest "anywhere within the jurisdiction of this State." (Ill.Rev.Stat. 1991, ch. 38, par. 107-5(c) (now 725 ILCS 5/107-5(c) (West 1992)).) Defendant nowhere contests that there was no license plate on the front of her car or that her license was suspended at the time she was driving within Gurnee and was observed by Officer Kotrba. Hence, she does not really challenge her arrest based on the traffic violations. Rather, her argument seems to be that evidence of resisting arrest and criminal battery should have been suppressed since those offenses were not committed within the jurisdiction of the Gurnee police department. Although defendant does not present any argument or authority for her position, we will briefly address the issue.
All of defendant's offenses occurred as Kotrba and Ward were attempting to make a valid, albeit extrajurisdictional, arrest. Defendant resisted and committed battery in the course of that very arrest. It is not as though defendant's improper conduct was totally separate from and unrelated to the situation in which she found herself. On the contrary, her offenses were integrally bound up with the arrest process. Under these circumstances, there was no reasonable justification for the trial court to suppress the challenged evidence. To say that evidence of a defendant's offensesoffenses occurring in the midst of defendant's valid, extrajurisdictional arrestis inadmissible merely because the conduct occurred outside the arresting officer's jurisdiction, is an absurd result, and certainly not one intended by the legislature. If it were otherwise, police could execute valid arrests outside their jurisdiction, but be unable to thwart unlawful conduct occurring during the arrest precisely because it occurred outside their jurisdiction.
Consonant with our conclusion is the State's response that granting defendant the relief she seeks would be inconsistent with the principle that a defendant may not use force to resist arrest even if she believes the arrest to be invalid and it is, in fact, unlawful. (See Ill.Rev.Stat.1991, ch. 38, pars. 7-7, 31-1 (now 720 ILCS 5/7-7, 31-1 (West 1992)); Villarreal, 152 Ill.2d at 374-75, 178 Ill.Dec. 400, 604 N.E.2d 923.) In the scenario urged by defendant, an offender could forcibly resist an arrest, valid or otherwise, with impunity, solely because the resistance occurred outside the jurisdiction of the arresting officer. Such a result conflicts with the clear intent of the statute and is unacceptable. In sum, we opine that when a defendant's offenses are so clearly related to a valid arrest as those which occurred here, evidence of those offenses is admissible, even though they may have been committed outside the jurisdiction of the arresting officer.
For all the reasons set forth above, we affirm the judgment of the Lake County circuit court.
Affirmed.
DOYLE, J., concurs.
Justice QUETSCH, dissenting:
I respectfully dissent from the majority decision as to issue V (the failure of the trial court to give defendant's tendered instruction on a defendant's justified use of force). Illinois Pattern Jury Instructions, Criminal No. 24-25.06 3d ed. 1992.
The majority properly acknowledges the defendant is correct in asserting that "a defendant is entitled to jury instructions which *989 present her theories of the case when the evidence supports such theories, and even very slight evidence upon a given theory will warrant the giving of an instruction." (Emphasis added.) (267 Ill.App.3d at 88, 203 Ill. Dec. at 835, 640 N.E.2d at 985.) (People v. Lyda (1989), 190 Ill.App.3d 540, 544, 137 Ill.Dec. 405, 546 N.E.2d 29; People v. Veatch (1986), 145 Ill.App.3d 23, 28-30, 99 Ill.Dec. 227, 495 N.E.2d 674.) Thus, any evidence that Ms. Williams believed that her conduct was necessary to defend herself against the imminent use of unlawful force requires the giving of the instruction in dispute here.
Lyda also held that a trial court is not allowed to decide credibility or weigh evidence which would support a claim of self-defense, but may only determine whether there is any such evidence. (190 Ill.App.3d at 544-45, 137 Ill.Dec. 405, 546 N.E.2d 29.) Curiously, and contrary to the clear standards of Lyda, the majority reviews, weighs, and determines credibility of the evidence and concludes that "there was no evidence to support" the giving of the instruction. Thus, not only did the trial court invade the province of the jury in this cause, but also our reviewing majority does the same and compounds the error, resolving questions of fact regarding the defendant's knowledge, belief, and the reasonableness of her belief, and usurping a task properly reserved for a jury of citizens. Lyda, 190 Ill.App.3d 540, 137 Ill.Dec. 405, 546 N.E.2d 29.
I disagree that there was no evidence to support the instruction. It is not disputed that Ward was in civilian clothing when he approached the defendant's car and grabbed her by the wrist. Defendant said that Ward did not identify himself as a peace officer or exhibit his badge, but merely said "baby girl, you can't do this." She was confused, according to an officer bystander. How was defendant to know that Ward was a policeman and not a lay interloper? Knowledge by the defendant that she was resisting a peace officer is a required element of the State's proof in the charge of resisting arrest (Ill. Rev.Stat.1991, ch. 38, par. 31-1 (now 720 ILCS 5/31-1 (West 1992))); and reasonable belief of necessity is an element in a defendant's affirmative defense (Ill.Rev.Stat.1991, ch. 38, par. 7-1 (now 720 ILCS 5/7-1 (West 1992))).
There was evidence to support defendant's theories of both not knowing of Ward's status as a peace officer and her belief in the necessity of her self-protection. The weight and credibility of that evidence was for a jury, not for the trial judge or this court. People v. Veatch (1986), 145 Ill.App.3d 23, 28-30, 99 Ill.Dec. 227, 495 N.E.2d 674.
If the State was allowed to prove and argue defendant's knowledge of Ward's status (by direct but contradicted evidence that he identified himself and showed his badge, and circumstantially by the surrounding events) and to have its instructions given, should not defendant's instruction on her defense of justifiable use of self-protecting force based on a reasonable belief also have been given? The answer is "yes." Lyda, 190 Ill.App.3d 540, 137 Ill.Dec. 405, 546 N.E.2d 29; Veatch, 145 Ill.App.3d 23, 99 Ill.Dec. 227, 495 N.E.2d 674.
The trial court (and this reviewing court's majority) improperly weighed the evidence and invaded the province of the jury, by, on its own, resolving questions of fact regarding defendant's knowledge and belief and the reasonableness of that belief. The majority, by its decision, endorses the trial judge's usurping of the jury's role. On this issue, the trial court's only function and duty was to determine whether there was any evidence to support defendant's theory of justifiable use of self-protection and, if so, to give the disputed instruction to guide the jury in its deliberations. Lyda, 190 Ill.App.3d 540, 137 Ill.Dec. 405, 546 N.E.2d 29; Veatch, 145 Ill. App.3d 23, 99 Ill.Dec. 227, 495 N.E.2d 674.
Should this court close its eyes to the current and growing incidence of criminals impersonating police officers and stopping drivers on our roadways for various illicit purposes? I think not.
Inasmuch as there clearly was some evidence to support the giving of the instruction (as shown by the majority's own statement of facts), the trial court exceeded its authority and misused its discretion. The defendant's *990 convictions should be reversed and the cause remanded for a new and fair trial.


161 B.R. 308 (1993)
In re Chester Ernest LANCASTER and Kathlyn G. Lancaster, Debtors.
Bankruptcy No. 92-31903-BKC-RAM.
United States Bankruptcy Court, S.D. Florida.
November 17, 1993.
Kevin C. Gleason, Kinsey & Gleason, P.A., Boca Raton, FL, for debtors.
Leslie Osborne, Furr & Cohen, P.A., Boca Raton, FL, for Trustee, Robert Furr.

ORDER SUSTAINING TRUSTEE'S OBJECTION TO EXEMPTION
ROBERT A. MARK, Bankruptcy Judge.
This matter came before the Court for hearing on August 17, 1993, on the Chapter 7 Trustee's, Robert C. Furr (the "Trustee"), Objection to Exemptions and for rehearing of the Trustee's Motion for Turnover of Property. At issue is whether a tax refund may be claimed as exempt under Florida's exemption for wages. Having considered the Trustee's objection and motion, the argument of counsel, the submitted memorandum of law and for the reasons set forth below, the Court sustains the Trustee's objection and grants the Trustee's Motion for Turnover.
The Debtors, Chester and Kathlyn Lancaster (the "Debtors"), filed a joint voluntary petition under chapter 7 of title 11, United States Code, on June 4, 1992. Included among the listed assets of the Debtors was a tax refund due for the year 1991 in the amount of $11,663.00. The Trustee moved for and obtained an order requiring turnover of the tax refund. The Debtors moved for rehearing and amended their exemptions to include the tax refund. The Trustee then objected to the claimed exemption.

DISCUSSION
It is well established that tax refunds are property of the estate. See Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974); United States v. Michaels, 840 F.2d 901 (11th Cir.1988); In re Selner, 18 B.R. 420 (Bankr.S.D.Fla.1982). The issue is whether the tax refund may be claimed as exempt under Section 522 of the Bankruptcy Code. Because Florida has "opted out" of the federal exemptions in Section 522(d), the analysis turns on the application of Florida's statutory exemptions.
The Debtors assert that the tax refund should be exempt from attachment, garnishment or process pursuant to Florida Statute Section 222.11 because the tax refund can be traced and properly identified as wages.
Section 222.11 provides in pertinent part:
No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the *309 payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person.... This exemption shall apply to any wages deposited in any bank account maintained by the debtor when said funds can be traced and properly identified as wages.
The Debtors reason that the funds held by the IRS are similar to money placed in a bank account. If funds are held on account of an individual and can be traced to wages, the Debtors argue, the funds are exempt under Section 222.11.
Reported decisions on this issue are sparse. In Matter of Truax, 104 B.R. 471 (Bankr.M.D.Fla.1989), the debtor also claimed that his tax refund was exempt under Section 222.11. Bankruptcy Judge Baynes ruled, without lengthy analysis, that tax refunds were not wages and were not exempt. This Court agrees with Judge Baynes and finds that tax refunds are not exempt under Florida law.
For the wage exemption to apply to wages already paid, the funds must (1) be deposited in a bank account; and (2) traced and properly identified as wages. In re McCafferty, 81 B.R. 99 (Bankr.M.D.Fla. 1987). Tax refunds fail to satisfy either of these necessary elements.
First, once the debtors' wages are withheld and paid to the Internal Revenue Service, the monies are no longer properly identifiable as wages. United States District Judge Zloch, in an unpublished opinion in Kramer v. Gennett, Case No. 89-8551 (S.D.Fla.1991), considered a similar argument that money placed in an attorney's trust account traceable to wages was exempt under Section 222.11. The district court agreed with the bankruptcy court that the exemption only applied to prepaid wages which are both deposited in a bank account and are traceable. The district court also stated that it believed a situation could arise where funds were deposited in some other type of segregated account such as an employer-maintained bank account or in trust for the employee. The district court went on to state that the funds had to be segregated in a manner by which the debtor could access them.
The mere fact that a debtor's taxes are paid from his wages does not mean that the monies which may be due as a refund retain their identification as wages. The monies are not held in a segregated account for the taxpayer nor are they accessible by the taxpayer until actually refunded.
Second, the statute is clear on its face. The exemption only applies to bank accounts, not to monies otherwise traceable to wages. Statute 222.11 must be construed as written and cannot be extended by judicially legislating an additional category of exempt funds. See In re Furguson, 134 B.R. 689 (Bankr. S.D.Fla.1991) (citing United States Supreme Court bankruptcy decisions relying upon the plain meaning of a statute including Johnson v. Home State Bank, 501 U.S. 78, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991); Toibb v. Radloff, 501 U.S. 157, 111 S.Ct. 2197, 115 L.Ed.2d 145 (1991); and Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990)). See also, INS v. Cardoza-Fonseca, 480 U.S. 421, 452-453, 107 S.Ct. 1207, 1224, 94 L.Ed.2d 434, 461 (1987) (Scalia J., concurring) ("Judges interpret laws rather than reconstruct legislators' intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intent.").
The Florida Supreme Court has also employed the "plain meaning" doctrine in interpreting Florida's exemption statutes. In re McCollam, 612 So.2d 572 (Fla.1993). In that case, in interpreting the annuity exemption, the Court rejected any inquiry into legislative history stating that "legislative history is irrelevant where the wording of a statute is clear." Id. at 579. Although application of the doctrine in McCollam resulted in a broad interpretation of the statute, the message from the highest courts of Florida and the United States is clear  statutes mean what they say, not what litigants and judges believe they were intended to mean. If Florida's wage exemption should be extended to other types of accounts and monies, the legislature, not the courts, must effect the change.
*310 In sum, tax refunds are not identifiable as wages and not held in "bank accounts" prior to their payment to a taxpayer. As such, the refunds are not exempt. Accordingly, it is
ORDERED AND ADJUDGED that
1. The Trustee's Objection to Exemptions is sustained.
2. The Trustee's Motion for Turnover of Property is granted.
3. The Debtors' shall turn over to the Trustee the tax refund of $11,663.00.


Petition for Writ of Mandamus Denied and Memorandum Opinion filed February
14, 2012.

                                          In The

                      Fourteenth Court of Appeals
                                      ____________

                                  NO. 14-12-00100-CR
                                  NO. 14-12-00101-CR
                                    ____________

                         IN RE WENDIYA KINCHIN, Relator

                              ORIGINAL PROCEEDING
                                WRIT OF MANDAMUS
                                  56th District Court
                                Galveston County, Texas
                     Trial Court Cause Nos. 11CR3371 & 11CR3372

                      MEMORANDUM                     OPINION

       On February 3, 2012, relator Wendiya Kinchin filed a petition for writ of mandamus
in this court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52. Relator
complains that the presiding judge of the 56th District Court of Galveston County has not
set a hearing on two applications for writs of habeas corpus.

       To be entitled to mandamus relief in a criminal case, a relator must show that he has
no adequate remedy at law to redress his alleged harm, and that what he seeks to compel is
a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v.
Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App.
2007) (orig. proceeding). When a trial judge refuses to issue a writ of habeas corpus or
denies a hearing on the merits, the applicant may either present the application to another
judge having jurisdiction, or “under proper circumstances” seek a writ of mandamus. Ex
parte Villanueva, 252 S.W.3d 391, 304 (Tex. Crim. App. 2008).

       The Texas Code of Criminal Procedure provides that “[t]he writ of habeas corpus
shall be granted without delay by the judge or court receiving the petition, unless it [is]
manifest from the petition itself, or some documents annexed to it, that the party is entitled
to no relief whatever.” Tex.Code Crim. Proc. art. 11.15. Relator has not provided this
court with copies of the applications for writs of habeas corpus on which a hearing is
requested. Accordingly, this court is unable to determine whether the trial court may have
properly determined from the applications that relator was not entitled to relief. Relator
also has not established that the applications were properly filed and brought to the trial
court’s attention. It is relator’s burden to provide this court with a record sufficient to
establish his right to relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992); Tex. R.
App. P. 52.3(k), 52.7(a).

       Accordingly, we deny relator’s petition for writ of mandamus.

                                           PER CURIAM

Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).

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