599 N.W.2d 527 (1999)
235 Mich. App. 737
PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Curtis GRAYER, Defendant-Appellee.
Docket No. 214880.
Court of Appeals of Michigan.
Submitted May 5, 1999, at Lansing.
Decided June 4, 1999, at 9:10 a.m.
Released for Publication September 10, 1999.
*528 Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Susan K. Mladenoff, Prosecuting Attorney, and Jennifer K. Solberg, Assistant Prosecuting Attorney, for the people.
David E. Gilbert, Battle Creek, for the defendant.
Before: GRIBBS, P.J., and KELLY and HOOD, JJ.
PER CURIAM.
Defendant was charged with third-degree fleeing and eluding, M.C.L. § 750.479a(3); MSA 28.747(1)(3), resisting and obstructing an officer, M.C.L. § 750.479; MSA 28.747, and driving with a suspended license, M.C.L. § 257.904(1)(a); MSA 9.2604(1)(a). After the district court bound him over on all the charges, defendant moved to quash the fleeing and eluding charge in the trial court, claiming that there was insufficient evidence to establish probable cause that he had committed the offense. The trial court granted the motion and quashed the fleeing and eluding count. The prosecution appeals by leave granted, and we reverse.
The prosecution argues that there was sufficient evidence to support the charge of third-degree fleeing and eluding[1] and that the trial court should not have quashed the count related to that *529 charge. We agree. Generally, a circuit court's decision to grant a motion to quash a felony information is reviewed de novo to determine if the district court abused its discretion in ordering a bindover. People v. Northey, 231 Mich.App. 568, 574, 591 N.W.2d 227 (1998). However, in this case, we are also called on to review the trial court's decision regarding whether defendant's conduct fell within the scope of M.C.L. § 750.479a(3); MSA 28.747(1)(3). The decision whether alleged conduct falls within the statutory scope of a criminal law involves a question of law, and we also review questions of law de novo. People v. Sierb, 456 Mich. 519, 522, 581 N.W.2d 219 (1998); People v. Hamblin, 224 Mich.App. 87, 91, 568 N.W.2d 339 (1997).
No prior cases have analyzed what conduct constitutes third-degree fleeing and eluding under M.C.L. § 750.479a; MSA 28.747(1). We are thus confronted with an issue of first impression.
The goal of statutory interpretation is to ascertain the intent of the Legislature. People v. Sheets, 223 Mich.App. 651, 656, 567 N.W.2d 478 (1997).
The first criterion in determining the Legislature's intent is the specific language of the statute. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither permitted nor necessary. In interpreting statutes, words are to be given their common, generally accepted meaning. The court should presume that every word has some meaning and should avoid any construction that would render a statute, or any part of it, surplusage or nugatory. [People v. Fox (After Remand), 232 Mich.App. 541, 553, 591 N.W.2d 384 (1998) (citations omitted), lv. pending.]
MCL 750.479a; MSA 28.747(1), as amended effective June 1, 1997, provides in part:
(1) A driver of a motor vehicle who is given by hand, voice, emergency light, or siren a visual or audible signal by a police or conservation officer, acting in the lawful performance of his or her duty, directing the driver to bring his or her motor vehicle to a stop shall not willfully fail to obey that direction by increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude the police or conservation officer. This subsection does not apply unless the police or conservation officer giving the signal is in uniform and the vehicle driven by the police or conservation officer is identified as an official police or department of natural resources vehicle.
(2) Except as provided in subsection (3), (4), or (5), an individual who violates subsection (1) is guilty of fourth-degree fleeing and eluding, a felony punishable....
(3) Except as provided in subsection (4) or (5), an individual who violates subsection (1) is guilty of third-degree fleeing and eluding, a felony ... if 1 or more of the following circumstances apply:
(a) The violation results in a collision or accident.
(b) A portion of the violation occurred in an area where the speed limit is 35 miles an hour or less, whether that speed limit is posted or imposed as a matter of law.
(c) The individual has a prior conviction for fourth-degree fleeing and eluding, attempted fourth-degree fleeing and eluding, or fleeing and eluding under a current or former law of this state prohibiting substantially similar conduct.
The statute criminalizes the conduct of a person who fails to obey the direction of an officer by "increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude...."[2] The words "flee" and "elude" *530 as used in M.C.L. § 750.479a; MSA 28.747(1) have not acquired a particular meaning in our courts. Random House Webster's College Dictionary (1997) defines "flee" as "to run away, as from danger or pursuers; take flight; to move or pass swiftly; fly; speed." It defines "elude" as "to avoid capture or escape detection by; evade." Id. Both terms connote an intent to take affirmative action, not simply fail to submit.
On the basis of a plain reading of the statute, there are six elements necessary to establish third-degree fleeing and eluding: (1) the law enforcement officer must have been in uniform and performing his lawful duties and his vehicle must have been adequately identified as a law enforcement vehicle, (2) the defendant must have been driving a motor vehicle, (3) the officer, with his hand, voice, siren, or emergency lights must have ordered the defendant to stop, (4) the defendant must have been aware that he had been ordered to stop, (5) the defendant must have refused to obey the order by trying to flee from the officer or avoid being caught, which conduct could be evidenced by speeding up his vehicle or turning off the vehicle's lights among other things, and (6) some portion of the violation must have taken place in an area where the speed limit was thirty-five miles an hour or less, or the defendant's conduct must have resulted in an accident or collision, or the defendant must have been previously convicted of certain prior violations of the law as listed in M.C.L. § 750.479a(3)(c); MSA 28.747(1)(3)(c). See CJI2d 13.6c. The clear language of the statute reveals no requirement that the defendant's speeding exceed a certain level or that the speeding occur over a long distance in order for the elements of the statute to be met. The elements do, however, require the prosecution to demonstrate that the defendant refused to obey by trying to flee or avoid capture, which element necessitates a finding of some intent on the part of the defendant to flee or avoid capture.
The evidence at the preliminary examination revealed that on January 28, 1998, a uniformed sheriff's deputy observed a vehicle with defective taillights pass his marked police vehicle. The deputy pulled out behind the vehicle, which was undisputedly driven by defendant, and followed it to a stoplight. After the stoplight, as the vehicles were approaching railroad tracks, the deputy activated his flashing emergency lights in an attempt to signal defendant to stop. Defendant did not stop, but instead accelerated beyond the thirty-mile-an-hour speed limit and continued on his way. The deputy then activated his siren, called out that he was following, and continued to follow. The deputy later turned his siren off because the defendant's vehicle, although speeding, was not traveling at a high rate of speed. The deputy kept his emergency lights activated. He followed the vehicle for approximately one mile as it made two left turns and ended up going through an alley or "some back yards" before coming to a stop behind a residence. Both defendant and the other occupant of his vehicle got out of the vehicle, refused to heed the deputy's call to stop, and started to run around the house. Defendant ran onto the porch of the house, sat down on the steps, and when the deputy approached, pointed toward the side of the house and said something to the effect that "he went around that way," apparently pretending that he was not the person for whom the deputy was looking. The deputy informed defendant that he was looking for him, and the two began to argue. Eventually, the deputy informed defendant that he was under arrest, and defendant pushed and struck the deputy. Other officers arrived and defendant was taken into custody. Defendant's wife, who had been with him in his vehicle, testified that she saw the officer following them, commented to defendant *531 that the officer was going to stop them, and that defendant kept driving.
The trial court determined that, in its view, the testimony did not reveal a "substantial effort" by defendant to flee or elude, that there was no substantial speeding up over a distance, and that there was no effort to "really" avoid the officer. It therefore granted the motion to quash. We disagree with the trial court's determination that defendant's conduct did not fall within the scope of M.C.L. § 750.479a(3); MSA 28.747(1)(3) as written. Keeping in mind that the statute does not require a certain level of speeding or length of chase, the preliminary examination testimony supports all the necessary elements, including that defendant intended to elude. Defendant accelerated his vehicle after the officer activated his flashing lights, which, under the statute, appears to be sufficient evidence from which to infer intent. In addition to that testimony, however, there was also other circumstantial evidence to conclude that defendant intended to elude the officer. The deputy followed defendant for approximately one mile with his emergency lights on and with his siren activated for a portion of that time, and when defendant finally emerged from the vehicle, he ran away from the deputy and then attempted to misdirect him. This testimony reasonably leads to the inference that defendant's intent in not stopping when ordered to do so was to avoid capture, in other words, to elude the officer. See People v. Perez-DeLeon, 224 Mich.App. 43, 59, 568 N.W.2d 324 (1997) (because it is difficult to show intent by direct evidence, circumstantial evidence is often necessary and will suffice to show intent). Because there was competent evidence to support a finding that defendant committed a violation of M.C.L. § 750.479a(3); MSA 28.747(1)(3), the trial court improperly granted the motion to quash and the district court did not abuse its discretion in finding that there was probable cause to believe that a felony was committed by defendant.[3]
We acknowledge that the reported cases under previous versions of M.C.L. § 750.479a; MSA 28.747(1) involve conduct that exceeds the type of conduct in this case. In People v. Mayfield, 221 Mich.App. 656, 658, 562 N.W.2d 272 (1997), the defendant initially stopped his vehicle, but then accelerated away as the police officer approached him after getting out of her own vehicle. The defendant then jumped out of his moving vehicle and fled on foot. In People v. Harrell, 54 Mich.App. 554, 556-557, 221 N.W.2d 411 (1974), aff'd. 398 Mich. 384, 247 N.W.2d 829 (1976), the defendant engaged the police in a high-speed chase through city streets while committing other traffic offenses along the way. While we are mindful of the more extreme behavior in these reported cases, we reiterate that the statute itself does not limit fleeing and eluding to high-speed or long-distance chases. The Legislature could have limited the statute in those manners if it had chosen to do so. It did not.
Reversed.
NOTES
[1]  There are four degrees of fleeing and eluding, ranging from fourth-degree fleeing and eluding, which is a felony punishable by imprisonment for not more than two years or a fine of not more than $500, or both, to first-degree fleeing and eluding, which carries a maximum penalty of fifteen years in prison or a fine of $10,000, or both. MCL 750.479a; MSA 28.747(1).
[2]  The use of the ejusdem generis clause "or otherwise attempting" means that acts or conduct of the same kind, class, or character as speeding or extinguishing lights are also included within the offense.
[3]  "A district court must bind a defendant over for trial when the prosecutor presents competent evidence constituting probable cause to believe that (1) a felony was committed and (2) the defendant committed that felony. MCL 766.13; MSA 28.913; MCR 6.110(E)." Northey, supra at 574, 591 N.W.2d 227. Circumstantial evidence and reasonable inferences derived from that evidence are sufficient to support a bindover. People v. Terry, 224 Mich.App. 447, 451, 569 N.W.2d 641 (1997). The prosecution is not required, at the probable cause hearing, to prove the elements of the crime beyond a reasonable doubt. Id. Moreover, where there is credible evidence to both support and negate the elements of the crime, questions of fact exist that must be determined by the jury. Id.


540 U.S. 909
PELHAMv.NEW JERSEY.
No. 03-5448.
Supreme Court of United States.
October 6, 2003.

1
Appeal from the Sup. Ct. N. J.

2
Certiorari denied. Reported below: 176 N. J. 448, 824 A. 2d 1082.


170 P.3d 8 (2007)
215 Or. App. 500
IN RE F.D.H.
STATE
v.
F.D.H.
Court of Appeals of Oregon.
October 10, 2007.
Affirmed without Opinion.


                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                           FILED
                                   FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                            U.S.
                                    ________________________ ELEVENTH CIRCUIT
                                                                       OCT 13, 2011
                                            No. 11-10480                JOHN LEY
                                        Non-Argument Calendar             CLERK
                                      ________________________

                               D.C. Docket No. 1:10-cr-20465-JAL-2

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff-Appellee,

                                                versus

SANDRA LORENA ARANGO,

llllllllllllllllllllllllllllllllllllllll                         Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (October 13, 2011)

Before PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         Sandra Lorena Arango appeals her convictions for importing and conspiring

to import cocaine, 21 U.S.C. §§ 952(a), 963, and her sentence of 45 months of
imprisonment. Arango challenges the sufficiency of the evidence and the

reasonableness of her sentence. We affirm.

      Arango argues that the United States failed to prove that she knowingly

imported cocaine into the United States, but ample evidence supports her

convictions. Viewed in the light most favorable to the United States, the evidence

presented at trial “‘evidenc[ed] a consciousness of guilt’” by Arango. United

States v. Quilca-Carpio, 118 F.3d 719, 721 (11th Cir. 1997) (quoting United States

v. Stanley, 24 F.3d 1314, 1320 (11th Cir. 1994)). When a customs officer at the

Miami International Airport questioned Arango and her former mother-in-law,

Deisy Marrero, Arango spoke only when spoken to, appeared uncomfortable,

avoided eye contact with the officer, and attempted to hide behind Marrero. See

United States v. Steed, 548 F.3d 961, 978 (11th Cir. 2008). Later, when another

customs officer asked Arango to remove her sneakers, Arango hesitated, hung her

head, and exhaled loudly before complying with the instruction. The sneakers

were oddly stiff, heavy, noticeably newer than Arango’s clothes, and identical to

those worn by Marrero. When examined by hand, the sneakers expelled a white,

powdery substance that tested positive for the presence of cocaine, and an x-ray

examination revealed that a package of cocaine had been concealed in the heel of

each shoe. When a customs officer asked Arango about the cocaine, she stared at

                                         2
the floor and later cried. Although Marrero testified that Arango innocently had

accompanied Marrero to Ecuador to visit the daughter of Arango’s former

husband, the jury reasonably discredited Marrero’s testimony as implausible. See

United States v. Molina, 443 F.3d 824, 829 (11th Cir. 2006). Marrero testified

that she paid for the airline tickets and hotel using $2,500 that she won gambling

with $60 at a casino, but Marrero had told a customs officer that Arango’s former

husband bought the tickets. Marrero also testified incredibly that she met with her

granddaughter only once and later, while sightseeing, she agreed, without

Arango’s knowledge, to transport cocaine for a taxi driver. The jury reasonably

could infer that Marrero would not have trusted Arango to smuggle 367 grams of

cocaine into the United States without her knowledge. Quilca-Carpio, 118 F.3d at

722.

       The district court did not abuse its discretion by sentencing Arango to a

term of imprisonment within the advisory guidelines range. Arango argues that

her sentence did not account for her “compelling mitigating circumstances,” but

the district court weighed the seriousness of Arango’s offenses against her lack of

criminal history, her reputation as a “kind and generous person,” and her “minimal

amount of education.” The district court considered the sentencing factors and

reasonably determined that a term of 45 months of imprisonment would

                                          3
adequately punish Arango, “reflect the seriousness of [her] offense, “promote

respect for the law,” and “afford adequate deterrence not only to [her], but to other

Defendants who [might] be considering the importation of cocaine.” 18 U.S.C. §

3553(a). Arango’s sentence is reasonable.

      We AFFIRM Arango’s convictions and sentence.

                                          4


745 F.2d 68
U.S.v.Mendes
83-5301
United States Court of Appeals,Ninth Circuit.
8/23/84

1
S.D.Cal.

AFFIRMED


361 S.W.2d 204 (1962)
The TRAVELERS INSURANCE COMPANY, Petitioner,
v.
Joe B. SEABOLT, Respondent.
No. A-8770.
Supreme Court of Texas.
October 17, 1962.
*205 Turpin, Kerr, Smith & Dyer, Midland, for petitioner.
Warren Burnett, Odessa, for respondent.
NORVELL, Justice.
This is a workmen's compensation case. The trial court rendered judgment upon jury findings allowing Seabolt a recovery for the permanent loss of the use of his right hand. The Court of Civil Appeals has affirmed, 351 S.W.2d 350. We sustain Travelers' point of error which asserts that "the Court of Civil Appeals erred in affirming a judgment awarding maximum benefits in a Workmen's Compensation case for injury to a hand, when there is no evidence of the total loss of the use of such hand." The judgments of the trial court and the Court of Civil Appeals are reversed and the cause remanded for another trial.
In addition to the point above set out, the application for writ of error was also granted upon a point complaining of the way in which the case was submitted to the jury. In determining the question of reversible error in connection with a jury submission, it is necessary to consider the objections of counsel made to the charge and the like. In view of our holding on the "no evidence" point asserted by Travelers, it is unnecessary to consider the details and technicalities of the charge and the objections thereto other than to point out that, as an abstract proposition, Special Issue No. 1 and the definition accompanying it does not embody a correct statement of the substantive law relating to a total loss of the use of a hand. In the interest of clarity, Special Issue No. 1 and the definition accompanying it are here set forth:
"Special Issue No. One.
"Do you find from a preponderance of the evidence that the injury to plaintiff's right hand on the 6th day of October, 1959, if any, has resulted, or will result, in a `loss of use' of said hand?
"By the term `loss of use', as used in this charge is meant that the member is so affected as to substantially and materially impair the use thereof in the practical performance of its functions in the pursuit of a laboring man."
Article 8306, § 12[1] provides that "the permanent loss of the use of the member is equivalent to, and shall draw the same compensation as, the loss of that member." Although the word "total" is not used, it is clear that the Legislature intended the phrase to mean a total loss of the use of a member. While the absence of the word "total" is not necessarily fatal to a correct submission of an issue, if followed by a proper definition, the use of the word in the issue itself is recognized as the preferable form of submission.[2]
There are two concepts of the phrase, "total loss of the use of a member." Under the wording of the statute it can be said that a total loss of the use of a member exists whenever, by reason of injury, such *206 member no longer possesses any substantial utility as a part of the body. This meaning of the phrase does not embrace or have reference to the effect which the injury may have upon the injured party's earning capacity or his ability to secure and retain employment. The loss in law amounts to a partial disability and is compensable as such even though in fact no diminution of earning power has resulted. Aetna Casualty & Surety Co. v. Moore, Tex.Sup., 361 S.W.2d 183, Fidelity Union Casualty Co. v. Munday, Tex.Com.App., 44 S.W.2d 926, Texas Employers Ins. Ass'n v. Thrash, Tex.Civ.App., 136 S.W.2d 905, l. c. 907, wr. dism., judgm. cor.
There are however a number of decisions which support a somewhat broader concept than that above stated and one which will in most instances be more favorable to the injured workman than the one just stated. Although a member may possess some utility as a part of the body, if its condition be such as to prevent the workman from procuring and retaining employment requiring the use of the injured member, it may be said that a total loss of the use of a member has taken place. Texas Employers' Ins. Ass'n. v. Lane, Tex.Civ. App., 251 S.W.2d 181, ref. n. r. e., Travelers Insurance Co. v. Calcote, Tex.Civ.App., 205 S.W.2d 56, ref. n. r. e., Traders & General Ins. Co. v. Maxwell, Tex.Civ.App., 142 S. W.2d 685, wr. dism., judgm. cor. Cf. Choate v. American Motorist Ins. Co., Tex.Civ. App., 323 S.W.2d 188, no wr. hist. The phrase "loss of the use" naturally raises the question of loss of use for what purposes. The decisions mentioned above answer this question by relating the inquiry to purposes of work.
In testing the evidence we are governed by the following proposition or statement of law:
A total loss of the use of a member exists whenever by reason of injury, such member no longer possesses any substantial utility as a member of the body, or the condition of the injured member is such that the workman cannot procure and retain employment requiring the use of the member.
Should the evidence be sufficient in law to satisfy either of the two requirements stated above the judgment should be affirmed, otherwise a reversal must be ordered.
Seabolt, who was a pipe fitter, testified that he returned to his job within one week after sustaining the injury in question and continued on the job until it was finished. Thereafter, he applied for and received unemployment compensation for a period of time upon his representation that he was able to work but could find no employment. At the time of the trial and for six to eight weeks prior thereto, he was steadily employed on another job in Big Spring, Texas, still as a pipe fitter, and was making a slightly higher wage than at the time of his injury. Seabolt testified that he could not pull on wrenches as he used to, and that he was no longer as accurate with a hammer because of a poor grip. At his present job, he was first assigned to do screw pipe work, but was then transferred to working with a welder since this required less use of the injured hand. The welder with whom Seabolt worked on his pipe fitting job testified that Seabolt favored his right hand and that he frequently had to change positions in order to use his left hand. He did, however, work with his right hand, and his employer had never complained as to the caliber of that work. It can not be said that this evidence is sufficient in law to show either that the hand possesses no substantial utility as a part of the body or that appellee can not procure and retain employment requiring the use of the hand. The testimony shows no more than an impairment in the use of the hand, i. e., a partial loss of the use, rather than a total loss of the use of the hand. The evidence did not call for a submission of the "total loss of the use" theory. The case should have been submitted upon the basis of a partial rather than a total loss of the use of the hand.
*207 What has been said above is to some extent contrary to the concept of total loss of use expressed by way of dicta in Traders & General Insurance Co. v. Porter, Tex. Civ.App., 124 S.W.2d 900, wr. ref. The statement in Porter that by "loss of use * * * is meant that the member is so affected as to substantially and materially impair the use thereof, in the practicable performance of its functions in the pursuit of a laboring man" obviously includes the concept of an impairment of the use of a member. It does not describe a total loss of the use as distinguished from a partial loss of the use of a member, and hence cannot be approved.
Being of the opinion that our order heretofore rendered, which reverses the judgments of the lower courts and remands this cause for a new trial is correct, we overrule appellees motion for rehearing. The foregoing opinion will however be substituted in lieu of the original opinion which is withdrawn.
Motion for rehearing overruled.
NOTES
[1]  Vernon's Ann.Tex.Stats.
[2]  In its opinion in this case, the Court of Civil Appeals said:

"The term `total loss of use' has in specific injury cases been used with approval of our appellate courts. (Citing authorities) This would appear to be the more desirable way to submit specific injury loss of use cases, because it more clearly presents the question involved with less possibility of misinterpretation or misunderstanding."
See also, Kearby Peery, "Texas Workmen's Compensation Practice, pp. 97-8.


327 B.R. 187 (2005)
In re: 360NETWORKS (USA) INC., et. al., Debtors.
The Official Committee of Unsecured Creditors of 360Networks (USA) Inc., et al., and 360Networks (USA) Inc., by and Through The Official Committee of Unsecured Creditors of 360Networks (USA) Inc., et al., Plaintiffs,
v.
AAF-McQuay, Inc., Cadence McShane Corp., David Evans & Associates, Inc., Big-D Fastrack Corp., IBI Group, Kontak, Ollanik Construction Co. Inc., PSA Advanced Technology Group, Ruys & Co., Slater Paull & Associates, Inc., Stationary Power Services, Inc. and Zero DB, LLC, Defendants.
Bankruptcy No. 01-13721 (ALG), Adversary No. 03-04126, Adversary No. 03-04796, Adversary No. 03-02233, Adversary No. 03-04305, Adversary No. 03-02241, Adversary No. 03-02395, Adversary No. 03-02236, Adversary No. 03-02398, Adversary No. 03-04536, Adversary No. 03-02234, Adversary No. 03-02248.
United States Bankruptcy Court, S.D. New York.
July 19, 2005.
*188 Dreier LLP, New York, NY by Norman N. Kinel, Terence D. Watson, Timothy Solomon, for the Plaintiffs/Debtors.
Arthur Russell, New York, NY, for AAF McQuay Inc.
Roland Gary Jones, New York, NY, for IBI Group, Kontak, Ollanik Construction Co. Inc., PSA Advanced Technology Group, Ruys & Co., Slater Paull & Associates, Inc., Stationary Power Services, Inc. and Zero DB, LLC.
Finestein & Malloy, L.L.C., Chatham, NJ by Michael D. Malloy, for Cadence McShane Corp.
Potter, Anderson & Corroon, LLP, Wilmington DE by David J. Baldwin, Rebecca S. Beste, for David Evans and Associates, Inc.
Kirkpatrick & Lockhart, Nicholson Graham LLP, New York, NY by Robert N. Michaelson, Babcock Scott & Babcock PC, Salt Lake City, UT by Robert F. Babcock, Cody W. Wilson, for Big-D Fastrack Corp.

MEMORANDUM OF OPINION
ALLAN L. GROPPER, Bankruptcy Judge.
The Court has consolidated for decision motions for partial summary judgment filed by the following defendants in separate adversary proceedings brought in connection with the above-captioned Chapter 11 case: AAF-McQuay, Inc., Cadence McShane Corp., David Evans & Associates, Inc., Big-D Fastrack Corp., IBI Group, Kontak, Ollanik Construction Co. Inc., PSA Advanced Technology Group, Ruys & Co., Slater Paull & Associates, Inc., Stationary Power Services, Inc. and Zero DB, LLC (collectively, the "Defendants"). Each of the adversary proceedings was initiated by the Official Creditors' Committee on behalf of 360networks, Inc., et al. (the "Debtors") and seeks the avoidance of alleged preferences pursuant to § 547 of the Bankruptcy Code. Each of the Defendants asserts that it has a complete defense to the complaint on the ground that at the time it was paid by one of the Debtors, it had the right to perfect a statutory *189 mechanic's lien that would have immunized the payment from preference attack, and that a payment by a debtor during the preference period that effectively extinguishes the right to perfect a statutory lien is not avoidable as a preference. For the reasons set forth below, the Court holds that a payment in satisfaction of an inchoate statutory lien is not avoidable as a preference where perfection of the lien would not have been avoidable.

Background
For the purposes of these motions for partial summary judgment, each of the moving Defendants has established that at the request of one or more of the Debtors, it provided construction or building-related materials or services to the Debtor. Under the laws of most States, a mechanic's lien arises upon the completion of construction or building-related services. See, e.g., N.Y. Lien Law § 3 et seq.; Ca. Civil Code § 3019 et seq.[1] In order to perfect the security interest, the builder must take all statutory steps, typically including recording a notice of lien, within the time period allowed by statute. See N.Y. Lien Law § 10 (must file notice of lien within eight months of completion of work); Ca. Civil Code § 311-3117 (must file within 90 days of completion or 60 days of sending a "notice of completion," where applicable). Failure to take all steps to perfect a statutory lien prior to the expiration date is usually fatal to the lien.
For the purposes of this opinion, a statutory lien that could have been timely perfected under applicable State law is called an "inchoate" mechanic's lien. Although further proceedings will be required in which each of the Defendants can attempt to establish that it held such an inchoate lien under applicable State law, it is assumed for the purposes of this opinion that the Defendants' time to perfect had not expired prior to payment. The common question in each of these cases is whether a debtor's payment to the inchoate lienholder, which precluded the holder from proceeding to perfect the lien, can be avoided as a preference. The parties have agreed that the Court should first decide this threshold legal question, and partial summary judgment is suited to disposing of issues whose resolution depends entirely on the application of law. Ying Jing Gan v. City of New York, 996 F.2d 522, 534 (2d Cir.1993); First City, Texas-Beaumont, VA. v. Treece, 848 F.Supp. 727, 733 (E.D.Tex.1994).

Discussion
The Defendants rely on two arguments for the proposition that the Debtors cannot avoid the payments: first, that the Debtors cannot satisfy one of the conditions in § 547 to the finding of a preference, because these Defendants would have been fully secured and entitled to full payment of their claims in a Chapter 7 case if they had perfected their inchoate liens; and second, that the "release" of the right to file a mechanic's lien is a "contemporaneous exchange for new value", a preference defense set forth in § 547(c)(1)(A). The Debtors argue that the Defendants were unsecured creditors under applicable State law and therefore are not entitled to be treated as secured creditors in a preference suit, and that forbearance from asserting a right to perfect a lien in exchange for payment is not "new value" as defined in the Bankruptcy Code.
*190 Under § 547(b) of the Bankruptcy Code, a trustee can avoid the transfer of "any interest of the debtor in property" made:
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made ... on or within the 90 days before the date of the filing of the petition ... and
(5) that enables such creditor to receive more than such creditor would receive if
(A) the case were a case under Chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
11 U.S.C. 547; see Rave Communications, Inc. v. The Ink Spot, 128 B.R. 369, 371 (Bankr.S.D.N.Y.1991). The trustee (or debtor in possession exercising the powers of a trustee) bears the burden of proof on each element of a preference. 11 U.S.C. § 547(g); see also Lawson v. Ford Motor Co. (In re Roblin Indus.), 78 F.3d 30, 34 (2d Cir.1996); 5 LAWRENCE P. KING ET AL, COLLIER ON BANKRUPTCY ¶ 547.03 (15th ed.2002).
For the purposes of this motion the parties do not dispute that the transfers at issue would satisfy the first four elements of § 547(b); the question is whether the Debtors have satisfied § 547(b)(5). Under § 547(b)(5), a transfer to a fully secured creditor is immunized from preference attack because the creditor would have been paid in full in a hypothetical Chapter 7 liquidation by virtue of its realization on its collateral. See COLLIER ¶ 547.03[7]; In re Pitman, 843 F.2d 235, 241 (6th Cir.1988). The question is whether, as the Defendants argue, they could have been secured creditors and should be so treated; or whether, as the Debtors contend, the Defendants should be treated as unsecured creditors because they had not perfected any liens and were never secured at all.
The Bankruptcy Act case of Ricotta v. Burns Coal & Building Supply Co., 264 F.2d 749 (2d Cir.1959), is decisive on this issue in the Defendants' favor. In Ricotta, the preference defendant had provided a debtor with building supplies and as a result obtained an inchoate mechanic's lien under New York Law. The defendant was paid in full during the preference period  prior to the expiration of its right to perfect its statutory lien. The debtor subsequently sued to avoid the payment as a preferential transfer. Reversing the decision below, the Circuit Court held that "neither the filing nor the enforcement of [a mechanic's] lien would have constituted a preference" and that "had the liens been filed, payment merely discharging them ... would likewise have been immune from attack." Id. at 750. The Circuit Court continued: "It would be absurd to treat differently payments for the same debts obtained without filing liens ...." Id. The Court reasoned that "payment itself should not be less secure than the lien which could have secured it," and it held that payment is not preferential where "the payment merely avoids the bite of a lien which the trustee could not have successfully attacked." Id. at 750-51. Other authority under the Bankruptcy Act came to the same conclusion. Greenblatt v. Utley, 240 F.2d 243, 247 (9th Cir.1956).
In light of Ricotta, the only real question on these motions is whether Ricotta remains binding law under the Bankruptcy Code. Although the Debtors strive to overcome it, there is no reason why Ricotta is still not binding, as well as persuasive, *191 authority. First, statutory liens are treated in a similar manner under the Code as they were under the Act. Under the Bankruptcy Act, a trustee could not avoid perfection of a statutory lien during the preference period. Section 67(b) of the Bankruptcy Act, 11 U.S.C. § 107 (repealed), provided that "statutory liens in favor of ... contractors ... created ... by the laws of the United States or any State, may be valid against the trustee, even though arising or perfected while the debtor is insolvent and within the four months prior to the filing of the petition...." Also under § 67(b), statutory liens were valid if they arose before bankruptcy and were perfected after bankruptcy, if the perfection was within the time permitted by and in accordance with the requirements of applicable law. LAWRENCE P. KING, ET AL, COLLIER ON BANKRUPTCY ¶ 67.26 (14th ed.1978).
Congress has provided similar treatment for statutory liens in the Bankruptcy Code. Section 547(c)(6), which derives from § 67(b), exempts from avoidance a transfer "that is the fixing of a statutory lien that is not avoidable under [§] 545 ...." 11 U.S.C. § 547(c)(6). Moreover, § 545 codifies the pre-Code practice of allowing statutory lienholders to perfect their interests post-petition under certain circumstances. See H.R.Rep. No. 95-595, at 371 (1977). Although the rule in Ricotta "is somewhat more difficult to fit in § 547(c)(6) than in former § 67(b), § 547(c)(6) was not intended to abolish the rule." Cimmaron Oil Co. v. Cameron Consultants, Inc., 71 B.R. 1005, 1011 (N.D.Tex.1987); In re Johnson, 25 B.R. 889, 893 (Bankr.E.D.Tenn.1982).
The Act and Code also provide the same treatment for holders of secured claims who are sued for preferences. Under the Act there was no preference if the creditor did not receive more than it would have received in a hypothetical Chapter VII liquidation. Such a transfer did not constitute a preference because the assets available for general creditors were not thereby diminished. See Irving Trust Co. v. Bank of America Nat'l Ass'n, 68 F.2d 887, 889-890 (2d Cir.1934); Azar v. Morgan, 301 F.2d 78, 80 (5th Cir.1962). As discussed above, treatment of secured debt is the same under the Code, and there has been no change in bankruptcy law that would undercut the validity of the Ricotta doctrine.
Nonetheless, the Debtors argue that the passage of the Bankruptcy Code has deprived Ricotta of its precedential value. Their principal contention is that Ricotta should be considered as a "new value" case and, as such, that it was overruled by Congress'"narrowing" of the definition of new value in the 1978 Bankruptcy Code. Contrary to the Debtors' contention, Ricotta was not decided on the basis of a new value argument and, in fact, the decision makes no mention of new value. The Ricotta court based its holding principally on the logical and equitable premise that, as the Court said in Alkap v. Demarest Supply Co., 54 B.R. 151, 153 (Bankr.D.N.J.1984), a Code case, "if the lien filing is not preferential, actual payment on the claim should not be so considered." Like Alkap, a majority of courts facing the precise issue under consideration here have held that Ricotta retains its vitality under the present law. See Alkap, 54 B.R. at 153; Cimmaron Oil, 71 B.R. at 1009; In re Mason & Dixon Lines, Inc., 65 B.R. 973, 978 (Bankr.D.N.C.1986); Johnson, 25 B.R. at 893.
Defendants do not successfully distinguish these Code cases but instead argue that the Court should follow Precision Walls, Inc. v. Crampton, 196 B.R. 299 (E.D.N.C.1996), the one case under the Code that holds that an unperfected statutory lien should be treated no differently *192 from any other unperfected lien. In Precision Walls, the Court analyzed the question as one entirely of State law; it found that under State law an inchoate lien is unperfected and that inchoate lienholders are merely unsecured creditors in bankruptcy. 196 B.R. at 303. The Court did not deal with Ricotta or distinguish any of the contrary case law cited above, and its holding would unfairly penalize holders of inchoate mechanic's liens. A holder of an inchoate statutory lien cannot perfect the lien after accepting payment in satisfaction of the underlying claim. Cf. N.Y. Lien Law § 39. As the Court said in Ricotta, holders of inchoate statutory liens would be faced with an unreasonable Hobson's choice between accepting payment or taking the commercially unreasonable step of declining payment in order to perfect an inchoate statutory lien. See also, Mullins v. Noland Co., 406 F.Supp. 206, 214 (N.D.Ga.1975).
The Defendants are on weaker ground when they argue that their release of the right to perfect a statutory lien constituted the grant of "new value" to the Debtors and was also unavoidable on that basis. The Debtors correctly assert that release of a right to perfect a lien is not included in the Bankruptcy Code's definition of "new value", and that the Defendants do not have a new value defense.
Section 547(c)(1) of the Bankruptcy Code provides that a trustee cannot avoid a transfer as a preference where the transfer "was intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and in fact a substantially contemporaneous exchange." 11 U.S.C. § 547(c)(1). The Bankruptcy Code defines new value as:
money or money's worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation.
11 U.S.C. § 547(a)(2).[2]
The question is whether release of a right to perfect a statutory lien is "money's worth of goods, services, or new credit [or] a release of property previously transferred ...." 11 U.S.C. § 547(a)(2). The majority of courts considering this issue have held that such release does not constitute new value. See In re Golfview Developmental Center, Inc., 309 B.R. 758, 774 (Bankr.N.D.Ill.2004); In re Bangert, 226 B.R. 892, 901 (Bankr.D.Mont.1998); Cimmaron Oil Co., 71 B.R. at 1009; In re Ford, 98 B.R. 669 (Bankr.D.Vt.1989). Most of these cases rely on the principle that that the definition of new value in § 547(a)(2) is not merely illustrative but that it is exhaustive, that forbearance is not listed, and therefore that release of the right to perfect a statutory lien is not new value. See Cimmaron Oil Co., 71 B.R. at 1009; see also Durant's Rental Center v. United Truck Leasing, Inc. (In re Durant's Rental Center), 116 B.R. 362, 365 (Bankr.D.Conn.1990).[3]
*193 Two cases from this district also hold that forbearance does not constitute new value. In In re Mid Atlantic Fund, Inc., 60 B.R. 604 (Bankr.S.D.N.Y.1986), a Chapter 7 trustee sought to avoid the debtor's transfer of property to a group of judgment creditors in exchange for their agreement to forbear from executing on the judgment for 90 days. Id. at 607. The Court held that the new value defense was inapplicable because "Forbearance is insufficient to constitute new value under Code § 547(a)(2) and will not defeat a preference challenge." Id. at 609. Similarly, the Court in In re McLean Industries, Inc., 132 B.R. 247, 263-64 (Bankr.S.D.N.Y.1991), rev'd on other grounds, 30 F.3d 385 (2d Cir.1994), held that the Maritime Administration's agreement to allow the debtor to enter into charters in violation of an agreement was tantamount to forbearance of its right to call a default  but was not new value as defined in § 547(c)(1).
In the present case, the Defendants received payment on account of work performed for the Debtor. One consequence of payment is forbearance of the right to perfect a lien. An agreement to forbear from taking action is not within the Bankruptcy Code's definition of new value. As such the new value defense would not constitute a separate defense to a payment that was otherwise preferential.

Conclusion
As Ricotta holds, payments made to the holder of an inchoate statutory lien during the preference period are not avoidable where, at the time of the payment, the lienholder: i) remained eligible to perfect the lien pursuant to relevant State law, and ii) such perfection would not otherwise have been avoidable under the Bankruptcy Code. The Court is not deciding at this time whether any of the Defendants actually held valid inchoate statutory liens at the time of the transfers, whether perfection of those liens would otherwise have been unavoidable, or whether the value of the collateral securing the inchoate liens was less than the amounts paid (with the result that some portion of the pre-petition transfers should be treated as unsecured and perhaps avoidable). Defendants are, however, entitled to partial summary judgment on the legal issue presented.
Defendants are directed to settle appropriate separate orders in each of the adversary proceedings and to schedule any necessary further proceedings after consultation with Debtors' counsel.
NOTES
[1]  The lien law of the jurisdiction where the defendant provided the work would apply. In this case, the Defendants performed work in varying jurisdictions. Notwithstanding some immaterial differences, the lien laws at issue operate similarly and, for the purposes of these motions, a general discussion of the laws is sufficient.
[2]  As indicated above, in drafting the Bankruptcy Code, Congress narrowed the concept of new value that had previously been in effect under the Bankruptcy Act, although this ultimately has no effect on the outcome of this case.
[3]  The court in Golfview Developmental Center took a more practical view, holding that forbearance of the right to perfect a mechanic's lien is not new value because the consideration for the payment was the original work performed and not the forbearance. 309 B.R. at 774.


824 So.2d 263 (2002)
Benjamin R. SMITH, Appellant,
v.
STATE of Florida, Appellee.
No. 2D02-2025.
District Court of Appeal of Florida, Second District.
August 14, 2002.
WHATLEY, Judge.
Benjamin Smith challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida *264 Rule of Criminal Procedure 3.800(a). We reverse the order of the trial court and remand for further proceedings.
Smith alleged that his consecutive prison releasee reoffender sentences, imposed pursuant to section 775.082(9), Florida Statutes (1999), are illegal because they were part of a single criminal episode. The Fourth and Fifth Districts have held that Hale v. State, 630 So.2d 521 (Fla. 1993), precludes consecutive prison releasee reoffender sentences arising from a single criminal episode. Smith v. State, 800 So.2d 703 (Fla. 5th DCA 2001); Philmore v. State, 760 So.2d 239 (Fla. 4th DCA 2000). This court has implicitly concluded that a defendant cannot be sentenced to consecutive prison releasee reoffender sentences arising from a single criminal episode. See Spivey v. State, 789 So.2d 1087, 1088 n. 1 (Fla. 2d DCA 2001); Jones v. State, 779 So.2d 459, 460 (Fla. 2d DCA 2000). We now align ourselves with the Fourth and Fifth Districts and affirmatively hold the same.
Smith's claim is properly raised in a postconviction motion. See Durr v. State, 773 So.2d 644 (Fla. 5th DCA 2000) (holding that defendant must raise his claim that his consecutive prison releasee reoffender sentences are improper in postconviction proceedings where he did not preserve the issue for direct appeal).
Appellant alleged that his claim could be determined from the face of the record, and he, therefore, presented a cognizable rule 3.800(a) claim. See Wilson v. State, 802 So.2d 360 (Fla. 2d DCA 2001). Accordingly, we reverse the order of the trial court and remand for further proceedings consistent with this opinion. Should the trial court determine that Smith's claim cannot be resolved without resort to extrarecord facts, Smith may raise his claim in a timely filed, properly sworn, facially sufficient motion filed pursuant to Florida Rule of Criminal Procedure 3.850.
Reversed and remanded.
ALTENBERND and SALCINES, JJ., Concur.


178 Ga. App. 792 (1986)
344 S.E.2d 505
MILFORD
v.
THE STATE.
71753.
Court of Appeals of Georgia.
Decided April 7, 1986.
Rehearing Denied April 23, 1986.
Archie L. Gleason, for appellant.
Michael C. Eubanks, Solicitor, Timothy S. Mirshak, Assistant Solicitor, for appellee.
CARLEY, Judge.
Appellant appeals from her conviction of theft by taking. Construed in a light most favorable to the verdict, the jury was authorized to find the following: Appellant was an employee of an Augusta department store which, for a period of a year and a half, had experienced unexplained losses from the cash registers in the service area of the department store. As a result of these losses, hidden remote cameras were installed in the service department and the monitors were observed by security personnel. On July 21, 1984, the security manager for the department store was watching the monitor and observed *793 appellant receive a $50 bill from a customer who wished to pay on an account. In handling the transaction, appellant rang up the $30 credit, placed the $50 bill into the register and removed several $20's from the register. Appellant gave one $20 bill to the customer. Appellant was observed rolling up another $20 bill and placing the same into the skirt she was wearing. One of the monitors was connected to a video cassette recorder and the tape therefrom was played to the jury during the trial.
1. Initially, appellant objects to allowing the video tapes to be shown to the jury because, appellant contends on appeal, a proper foundation was not shown. A careful review of the transcript reveals that no objection to the laying of a foundation was made at trial and in fact, counsel for appellant stated that he had no objection to the admission of the tape into evidence. In this connection, the only objection made with regard to the tape dealt with the chain of custody, and was in effect withdrawn by counsel's acquiescence in the prosecutor's statement in his place. However, even if we were to find that timely objection was made on the basis of the failure to lay a foundation, there is clearly nothing in the record to show that appellant stated what foundation needed to be laid as a condition precedent to the admission of the tape. "Objection on the ground of a lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal. [Cits.]" Dick v. State, 246 Ga. 697, 704 (273 SE2d 124) (1980). Finally, "[i]n any event . . . the evidence was cumulative, having been previously presented through the testimony of [the security manager]." Hammond v. State, 169 Ga. App. 97 (311 SE2d 523) (1983). Accordingly we find that the defendant has waived any right to assert on appeal the failure of the state to lay the proper foundation. Moore v. State, 169 Ga. App. 24 (5) (311 SE2d 226) (1983). The trial court did not err in allowing the tape to be played to the jury.
2. The appellant enumerates as error the denial of appellant's motion for mistrial based upon certain improper remarks allegedly made by State's counsel during opening statement. Although the record contains appellant's objection, the motion for mistrial, the colloquy between counsel and the court, and the court's ruling, there was no transcript of the purportedly offensive portion of the opening statement itself. "[W]here the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of [OCGA § 5-6-41 (f)] [Cits.] When this is not done, there is nothing for the appellate court to review. [Cits.]" Zachary v. State, 245 Ga. 2 (262 SE2d 779) (1980).
Furthermore, "[t]he refusal to grant a mistrial based on alleged improper remarks of the prosecutor is within the discretion of the *794 trial court, OCGA § 17-8-75, and we will not interfere with the decision on appeal unless there is manifest abuse. [Cit.]" Harrell v. State, 253 Ga. 474, 476 (321 SE2d 739) (1984). Our review of what does appear of record clearly shows that the trial court did not abuse its discretion in denying the motion for mistrial.
3. The defendant contends that the evidence was not sufficient to support his conviction. "A person commits the offense of theft by taking when he unlawfully takes . . . any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken. . . ." OCGA § 16-8-2. "From the facts recited herein and other evidence adduced at trial we are satisfied that there was sufficient evidence to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the essential elements of the offense of theft by taking as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Jackson v. State, 173 Ga. App. 851 (1) (328 SE2d 741). See also Stull v. State, 230 Ga. 99 (1) (196 SE2d 7); Pelligrini v. State, 174 Ga. App. 84 (1) (329 SE2d 186)." Thomas v. State, 177 Ga. App. 366, 368 (339 SE2d 599) (1985).
4. Appellant's remaining enumerations have not been supported by argument or citation of authority and are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Fobbs v. State, 171 Ga. App. 352 (319 SE2d 522) (1984). "We have nevertheless reviewed these enumerations and find them to be meritless." Roberts v. State, 175 Ga. App. 326, 330 (333 SE2d 189) (1985).
Judgment affirmed. McMurray, P. J., and Pope, J., concur.


332 F.2d 184
GOLDEN GATE SALAMI COMPANY, Appellant,v.GULF STATES PAPER CORPORATION, Appellee.
Patent Appeal No. 7167.
United States Court of Customs and Patent Appeals.
May 28, 1964.

William G. MacKay, San Francisco, Calif., (Charles R. Allen, Jr., Washington, D. C., of counsel), for appellant.
Raphael Semmes, Washington, D. C., (G. Mallet Prevost, Washington, D. C., of counsel), for appellee.
Before WORLEY, Chief Judge, and RICH, MARTIN, SMITH, and ALMOND, Judges.
MARTIN, Judge.

1
This is an appeal from the decision of the Trademark Trial and Appeal Board brought by appellant-registrant.

2
Appellant is the owner of the Supplemental Registration1 of the mark

3
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

4
for packaged luncheon meats in a cellophane tear open package.

5
Appellee is the owner of the registered marks E-Z,2 E-Z OPENER,3 E-Z PAK,4 E-Z CARI,5 and E-Z LOAD6 for paper bags and the mark E-Z WRAP for kraft wrapping paper.7 There is testimony that appellee is a closely-held family managed corporation, whose corporate image has grown in the last 75 years to the extent that it is now recognized as a dominant and outstanding corporation in the pulp and paper industries. Roughly one out of every five grocery bags used in the United States today is said to be manufactured in appellee's plant. Besides paper bags, the record shows that appellee manufactures and sells paperboard containers for a wide variety of food products, a broad line of wrapping paper and butcher's paper and bleached sulfate pulp board. The record further shows that appellee has recently begun the manufacturing and the distribution of folding paper cartons made from bleached sulfate board and has entered the fine paper market, i. e., mimeograph, duplicator, and bond papers. Trademarks employed in identifying appellee's additional products are E-Z DUPLICATOR, E-Z MIMEOGRAPH, E-Z FOODPAK, E-Z TRAYPAK, E-Z MEAT BOARD, E-Z KART-N-PAK, E-Z LOAD, SOFTWOOD E-Z PULP, HARDWOOD E-Z PULP, E-Z OPEN, WHITE GUM E-Z PULP and E-Z FREZ. In addition, appellee also has used E-Z PAK for bleached folding cartons.

6
Appellee filed a petition to cancel the Supplemental Registration of the mark of appellant-respondent on the basis that the registration of that mark "under the Act of 1946" is specifically barred by Section 2(d) of the Act, inasmuch as said mark so resembles the registered marks of appellee-petitioner "as to be likely to cause confusion or mistake or to deceive purchasers."

7
In dismissing appellee's petition to cancel, from which no appeal has been filed by appellee-petitioner, a majority of the board stated:

8
While petitioner has used a number of trademarks comprising the notation `E-Z' in connection with its various paper and paperboard products, there is nothing in petitioner's record which would indicate that such use has created or resulted in purchaser recognition that petitioner possesses a `family of marks' characterized by this term; and the third party registrations made of record by respondent appear to negate such claim. * * * Nevertheless, petitioner's record is sufficient to establish prior and continuous use of its registered trademarks, including the marks `E-Z PAK' and `E-Z OPENER', which are substantially similar to respondent's mark `E-Z OPEN PAK'. Accordingly, the question to be determined in resolving the issue of likelihood of confusion raised by the pleadings is whether or not the goods of the parties are of such nature that their sale under the marks `E-Z PAK and `E-Z OPENER' on the one hand and `E-Z OPEN PAK' on the other is likely to cause confusion in trade. (7)8

9
* * * * * *

10
"It is apparent from respondent's container, as urged by petitioner, that the registered mark `E-Z OPEN PAK', as used thereon, serves to identify the container rather than the luncheon meats sold by respondent. The issue involved in a proceeding of this character, however, is whether or not petitioner is damaged by the registration in question and not by the manner in which the registered mark may be used by respondent. Thus, the question of likelihood of confusion and resultant damage to petitioner must be decided on the basis of the goods as identified in the registration sought to be canceled. In this regard, although reference is made in the registration to a cellophane tear open package, the goods for which registration was sought and for which the registration was granted are packaged luncheon meats. These goods and petitioner's paper bags and/or paperboard containers are vastly different products, and in the absence of any evidence that petitioner has advertised or promoted its goods to the ultimate consumer who is the purchaser of respondent's meats or that the average consumer purchasing food products in retail outlets utilizing petitioner's products is familiar with the marks appearing on the paper bags or containers, it is our opinion that there is no reasonable likelihood of confusion as to the source of these goods merely because of the substantially similar marks under which they are marketed. Petitioner cannot therefore be damaged by the registration in question."9

11
The majority of the board, however, after dismissing appellee's petition to cancel, stated:

12
"The record, however, raises an ex parte question as to respondent's right to maintain this registration. As indicated above, there is little doubt in our minds in view of the nature of the term `E-Z OPEN PAK' and the manner in which it is used on respondent's containers that the association of `E-Z OPEN PAK' is with the container rather than with the meat products packaged therein. Under such circumstances, respondent was not entitled to register the mark `E-Z OPEN PAK' for its meat products at the time it made application therefor. Furthermore, had respondent sought to register `E-Z OPEN PAK' for a cellophane tear open package, such registration would have been precluded under Section 2(d) of the Statute by petitioner's registrations `E-Z PAK' and `E-Z OPENER' because paper bags and/or paperboard cartons and cellophane packages are products which may well be sold through the same trade channels to the same classes of purchasers; and while respondent's mark `E-Z OPEN PAK' and petitioner's marks `E-Z PAK' and `E-Z OPENER' are highly suggestive terms they are nevertheless substantially similar. * * *" [Emphasis ours.]

13
Relying on Section 24 (15 U.S.C. § 109210) of the Trademark Act of 1946, the majority of the board then concluded that since it has been found after a hearing before the board that appellant-respondent was not entitled to register its mark in issue at the time of its application for registration thereof, the Supplemental Registration No. 682,704 of such mark "will be canceled in due course."

14
Appellant-respondent urges that the "ex parte" ruling of the board, based on "an arbitrary interpretation of the meaning of one sentence in Section 24," was improper because there was no hearing involving the propriety of the issuance of the registration. It is urged that "there is no evidence to indicate, or even to suggest, that the term E-Z OPEN PAK is being used or has ever been used adversely or by anyone else in connection with packaged meats or related products." Appellant-respondent further argues that the board in its "ex parte" ruling disregarded a recognized practice and custom. It is contended that in the United States it has become a common practice in business not only to employ and utilize a plurality of trademarks on a single label, but in addition to use suggestive or descriptive subordinate trademarks usually to indicate some attractive fact as to the product or the package.

15
Appellee-petitioner argues that, in view of the nature of the term E-Z OPEN PAK and the manner in which it is used on the containers of appellant-respondent, the association of E-Z OPEN PAK is with the container rather than with the meat products packaged therein. Appellee-petitioner further contends that in view of its prior use of the trademarks E-Z OPENER and E-Z PAK, the registration of "E-Z OPEN PAK should never have been granted" to appellant-respondent and that the board was clearly justified in canceling it and that accordingly its "ex parte" ruling should be sustained.

16
These facts present two matters to this court. The first relates to the action of the majority of the board in dismissing appellee's petition to cancel the trademark, E-Z OPEN PAK within an arrow design, of appellant-respondent registered on the Supplemental Register. The second involves the board's decision, on what it designated as an "ex parte" question, wherein it ruled that the trademark of appellant-respondent should be canceled.

17
With reference to the dismissal of the petition, that phase of the controversy was not appealed by the appellee-petitioner whose petition was dismissed and thus is not before us for determination on the merits. Therefore, we will not, because we cannot, disturb the board's decision as to dismissal. However, we would agree with that dismissal if the matter had been properly presented to us since we do not think there would be any likelihood of confusion, mistake or deception as a result of the use by appellee-petitioner of its trademarks for its goods and the use by appellant-respondent of E-Z OPEN PAK within an arrow design for its packaged luncheon meat in a cellophane tear open package.

18
We would not agree with the board's statement that "The issue involved in a proceeding of this character, however, is whether or not petitioner is damaged by the registration in question." [Emphasis ours.] The standing of the appellee-petitioner to maintain a cancellation proceeding in the Patent Office stems from the language of section 24: "Whenever any person believes that he is or will be damaged by the registration * * * he may * * * apply to the Commissioner to cancel such registration." Similar language appears in sections 13 and 14 with respect to the opposition to or cancellation of registrations on the Principal Register.

19
There would seem to be a very real difference between a statutory provision referring to a belief in damage, which is all we have, and a provision requiring proof of damage, which we do not have. In sustaining an opposition in Singer Manufacturing Co., et al. v. Birginal-Bigsby Corp., 319 F.2d 273, 50 CCPA 1380, this court recently said:

20
"Such `damage' is always speculative and not often subject to precise proof."

21
We also said there that the provision of section 2(e) (2) should be enforced at the instigation "of anyone having a real interest in its enforcement," by which we meant a personal commercial interest rather than the interest of a mere inter-meddler.

22
Coming now to the second matter, we are of the opinion that the board was in error in finding that appellant-respondent was "not entitled to register the mark `E-Z OPEN PAK'" on the basis "that the association of `E-Z OPEN PAK' is with the container rather than with the meat products packaged therein" in view of "the nature of the term `E-Z OPEN PAK' and the manner in which it is used on respondent's containers." As stated above, we do not think there is a likelihood of confusion as a result of use by appellee-petitioner of its trademarks and the use by appellant-respondent of its trademark. Furthermore, the marks of appellant-respondent have not been registered for "meat products" but for "Packaged Luncheon Meats In A Cellophane Tear Open Package."

23
Moreover, we are of the opinion that the board exceeded its statutory authority under section 24 in giving an "ex parte" consideration to the question of cancellation of the mark of appellant-respondent. The board apparently considers, however, that section 24 of the Trademark Act provides authority for making an "ex parte" ruling in an inter partes proceeding involving a cancellation. The board in its decision on request for reconsideration stated:

24
"* * * it is apparent that the Statute provides ample authority for the Board's action [under Section 24]; and this is not the only instance in which such authority has been similarly exercised by a Patent Office tribunal as evidenced by Mackie-Lovejoy Mfg. Co. v. Birnbaum, 102 USPQ 38 (Comr., 1954); Pease Woodwork Company, Inc. v. Ready Hung Door Company, Inc., 103 USPQ 240 (Comr., 1954); Feldman v. Hoenig Plywood Corporation, 109 USPQ 63 (Comr., 1956); Hans Holterbosch, Inc. v. Rheingauer Schaumweinfabrik Schierstein, 110 USPQ 543 (Comr., 1956); and Miller Shoe Co., Inc., v. Vaisey-Bristol Shoe Company Incorporated, 116 USPQ 160 (Comr., 1958)."

25
We do not think that the Mackie-Lovejoy case, the Feldman case, the Holterbosch case or the Miller Shoe case offer any precedent for the board's "ex parte" consideration as to the cancellation of the mark of appellant-respondent.

26
In the Mackie case, petitioner filed a petition to cancel two registrations on the Supplemental Register. The Examiner of Interferences sustained the petition and respondent-registrant appealed to the Commissioner. The Assistant Commissioner did not dismiss the petition, as the board has done here, but affirmed the decision of the Examiner of Interferences. The affirmance, however, was not on the examiner's basis that the evidence showed that the purchasing public was likely to believe that the goods involved in the proceeding emanated from a single source but rather, referring to section 24 of the Trademark Act of 1946,11 on the basis that it was clearly apparent from the record that respondent did not own the marks and was, therefore, not entitled to register the marks at the time of its application to register. The Assistant Commissioner considered that this was a "matter in issue" with which the Examiner of Interferences did not deal. It is not clear from the decision just how that matter got in issue but in any event it was not treated on an "ex parte" basis.

27
The Feldman case dealt with a petition to cancel a registration on the Principal Register and concerned petitioner's failure to discharge his presumed burden to prove facts from which it could be concluded that it was, or was likely to be, damaged. Such issues are not before us here.

28
The Miller Shoe case concerned a petition to cancel a respondent's mark on the Supplemental Register apparently on the basis that the Examiner of Trademarks had failed to cite an earlier registration of petitioner in respondent's registration proceedings. Petitioner moved for summary judgment and the Examiner of Interferences denied the motion. On appeal to the Commissioner, the Assistant Commissioner, referring to section 24 of the Trademark Act, granted petitioner's motion on the basis that from a mere inspection of the registrant's mark and petitioner's earlier registration, the registrant was not entitled to register its mark. Certainly this case is no authority for the board taking an "ex parte" action in the factual situation before us.

29
The only case cited which we find is not clearly distinguishable from the present case is the Pease case. There the Assistant Commissioner, although dismissing the petition to cancel a registration on the Supplemental Register for the reason that the petitioner "failed to establish the allegations of its petition," stated that the registration should be canceled on the basis that the record and testimony of the cancellation proceedings showed (1) that the registrant had never used the mark nor had any use of the mark by others under license inured to the registrant's benefit, (2) that information material to the question of use and ownership was withheld from the Patent Office at the time of registration, and (3) that the mark as applied to the designated goods was "merely an apt description" of them.

30
To the extent that the Assistant Commissioner in that case, and the board in the instant case, make an "ex parte" ruling, we believe they exceeded their statutory authority under section 24. We do not think it was the intent of Congress under section 24 to give the board authority to make, in an inter partes proceeding, an "ex parte" determination whether a registration in issue should be canceled. As indicated by its title, section 24 is directed to a cancellation proceeding, which is an inter partes proceeding. We think that section authorizes cancellation only in connection with such inter partes proceeding; and that when the record made by a petitioner for cancellation establishes facts showing the registration was granted in error, the petition to cancel should be granted inter partes and the inter partes proceeding should remain inter partes. Otherwise very confused procedural situations arise as seen here where, although the petition of appellee-petitioner to cancel was dismissed appellee-petitioner achieved its desired result by reason of the board's "ex parte" decision to cancel. Appellee-petitioner took no appeal, apparently not concerned on what basis it prevailed in the proceeding. Appellant-respondent appealed but its appeal was necessarily from the "ex parte" action.

31
A so-called ex parte proceeding involves only one party and the Patent Office (so it is really a two-party proceeding) and in an appeal to us in such a proceeding the Patent Office normally appears by its Solicitor. It did not do so in this case, apparently because the case still bears an inter partes title and is so docketed in the Patent Office records, coming to us as an appeal in Cancellation No. 7,604, which it really is not because of the erroneous action of the board.

32
At the hearing we inquired of counsel for Gulf States Paper Corporation, the appellee-petitioner, just what he was doing here in an ex parte case. He said he was mystified; that he had inquired several times of the Patent Office what he should do and was told that this is an inter partes case. He therefore appeared here in order to represent his client's interest — which happened to coincide with the board's position in making an "ex parte" decision to cancel.

33
The position of appellant-respondent at the argument was that he resented the board going on an "ex parte frolic." He characterized the situation as unusual.

34
All the Trademark Trial and Appeal Board needed to do to avoid such confusion was to decide the issues raised in the cancellation proceeding and then stop, refraining also from calling any decisions made in the inter partes proceeding, as a result of the record developed therein, "ex parte," a practice we have previously criticized. See Gillette Co. v. Kempel, 254 F.2d 402, 45 CCPA 920; Roger & Gallet v. Janmarie, Inc., 263 F.2d 350, 46 CCPA 787.

35
When a petitioner to cancel brings forth facts which convince the Patent Office that a registration should be canceled, there would seem to be no legal necessity for doing what was done here — first dismiss the petitioner for lack of standing and then sustain his petition, in effect, in the form of an "ex parte" decision made in the theoretical absence of the real party in interest. Legal technicalities should be pursued only in the interest of orderly procedure and applied only where they serve that end.

36
In summary, we think that appellant-respondent is entitled to retain its registration. The appeal here is from a decision of the board reading: "Registration No. 682,704 will be canceled in due course." That decision was rendered "ex parte" after termination of proceedings in an inter partes cancellation proceeding in which no appeal was taken. Since we hold the "ex parte" decision was taken without authority it is hereby vacated. The initial decision of the board reading "The petition to cancel is therefore dismissed" is left standing by failure of the appellee-petitioner to appeal from it.

37
Vacated.

Notes:

1
 Reg. No. 682,704, issued July 28, 1959

2
 Reg. No. 227,085, issued Apr. 26, 1927 to a predecessor; renewed

3
 Reg. No. 575,332, issued June 2, 1953 on the Supplemental Register; Reg. No. 593,737, issued Aug. 17, 1954; and Reg. No. 678,900, issued May 19, 1959

4
 Reg. No. 625,877, issued Apr. 24, 1956

5
 Reg. No. 629,101, issued June 19, 1956

6
 Reg. No. 631,342, issued July 24, 1956

7
 Reg. No. 674,206, issued Feb. 17, 1959

8
 In its footnote (7), the board stated:
"Since petitioner's record fails to show that it adopted and made use of the marks `E-Z MEAT BOARD', `E-Z FOODPAK', `E-Z TRAYPAK' and `E-Z KART-N-PAK' at or prior to the filing date of respondent's application for registration, they may not properly be considered herein in determining this question."

9
 A dissenting member of the board would grant appellee's petition to cancel appellant's registration on the basis that persons familiar with appellee's marks, upon seeing appellant's mark affixed to the package or carton containing meat, would reasonably assume that such container either originates with or is in some way connected with appellee-petitioner

10
 15 U.S.C. § 1092 of the Trademark Act of 1946 as amended by par. (d) of Public Law 85-609, approved August 8, 1958, reads:
"§ 1092. Publication; not subject to opposition; cancellation
"Marks for the supplemental register shall not be published for or be subject to opposition, but shall be published on registration in the Official Gazette of the Patent Office. Whenever any person believes that he is or will be damaged by the registration of a mark on this register he may at any time, upon payment of the prescribed fee and the filing of a verified petition stating the ground therefor, apply to the Commissioner to cancel such registration. The Commissioner shall refer such application to the Trademark Trial and Appeal Board which shall give notice thereof to the registrant. If it is found after a hearing before the Board that the registrant was not entitled to register the mark at the time of his application for registration thereof, or that the mark is not used by the registrant or has been abandoned, the registration shall be canceled by the Commissioner. [Emphasis ours.]"

11
 Section 24 of the Trademark Act of 1946 read:
"Sec. 24. Marks for the supplemental register shall not be published for or be subject to opposition, but shall be published on registration in the Official Gazette of the Patent Office. Whenever any person believes that he is or will be damaged by the registration of a mark on this register he may at any time apply to the Commissioner to cancel such registration. The Commissioner shall refer such application to the examiner in charge of interferences, who shall give notice thereof to the registrant. If it is found after a hearing before the examiner that the registrant was not entitled to register the mark at the time of his application for registration thereof, or that the mark is not used by the registrant or has been abandoned, the registration shall be canceled by the Commissioner."

38
ALMOND, Judge (dissenting, with whom WORLEY, Chief Judge, joins).

39
I am unable to agree with my associates that "we do not think there is any likelihood of confusion, mistake or deception as a result of the use by appellee-petitioner of its trademarks for its goods and the use by appellant-respondent of E-Z OPEN PAK within an arrow design for its packaged luncheon meat in a cellophane tear open package." It seems perfectly clear to me that the average housewife scanning a display of packaged luncheon meats would be likely to be confused as to the source or origin of goods bearing the marks E-Z OPEN PAK, on the one hand, and E-Z OPENER or E-Z PAK, on the other.

40
It is true that the majority purports not to decide this question because appellee did not appeal. However, the opinion states there is no likelihood of confusion and predicates both of the "two matters" presented to the court on this finding.

41
It appears to me that the decision sets forth circuitous and hypertechnical reasons for the result obtained. The trademark laws should not be interpreted to establish an entangling administrative morass in which an owner of at least 18 trademarks for paper products is unable to prevail because the wrong tribunal decided in his favor for the wrong reasons. The decision of the majority interrupts the family of marks appellee has been seeking to build over nearly forty years by permitting registration of an "E-Z" mark for packaged goods. The reason the strong family of appellee's marks is broken is that he did not appeal a decision directing cancellation of E-Z OPEN PAK. Since cancellation is precisely what he sought, I see no reason why he should be required to bear the enormous expense of appealing. The majority of this court decrees that his petition to cancel is dismissed because the board, although agreeing that the registration should be canceled, predicated its decision on section 24 of the trademark statute instead of on section 2(d).

42
Even if appellee failed to prove ownership of a family of marks, I find a likelihood of confusion between appellant's mark "E-Z OPEN PAK" and appellee's marks "E-Z PAK" and "E-Z OPENER" for which the board found proof of prior and continuous use.

43
All of the board members agreed that the registration should be canceled, the only difference being in the basis for it. This court, however, sustains dismissal of the petition and permits the registration to stand because appellee did not appeal and the section 24 question was not properly raised. At this point, appellee could well be in doubt as to his remedies. Should he petition to cancel again, based on section 24? His first petition to cancel, nearly four years ago, was denied. Reluctance to spend another four years in the administrative jungle to test another ground would be understandable. Any further action by appellee would involve further expense, delay, and inconvenience. Perhaps, in retrospect, appellee should have been "dissatisfied" (35 U.S.C. § 141) when he won below, albeit on other grounds, and should have filed a cross appeal. Surely Congress did not intend to set up intricacies and technicalities to deny relief to those who fail to assign the proper grounds for a petition to cancel.

44
The heading of the case shows that Cancellation No. 7604 is before the court. Appellee filed the petition for that cancellation, appeared below, and appeared before this court. To say, as does the majority, that this court cannot decide in his favor because he failed to appeal from a decision granting the full relief for which he petitioned, is to place form before substance. I am of the opinion that we can consider the issue of likelihood of confusion presented in Cancellation No. 7604, and should find confusion likely.

45
My views coincide with those of the dissenting member of the board below, who said:

46
"The record in this case clearly shows that the products marketed by respondent under its mark are prepared meat products packaged in a cellophane tear open package, or, stated conversely, a cellophane tear open package containing prepared meat products. Further, it is readily apparent that the mark `E-Z OPEN PAK' relates to a particular feature of the package which contains such meats. Petitioner, on the other hand, has established prior use of the substantially similar marks `E-Z OPENER' and `E-Z PAK' for bags, sacks, and/or containers, which individually bear petitioner's marks, and of which a substantial percentage are sold to the food retailers for use in the packaging of meat products. In view of the close relationship of respondent's products, as described above, to petitioner's bags, cartons or containers which are used in the packaging of meats, and which visibly bear the mark on the package and/or container when sold to the ultimate consumer, it seems quite evident that when the respective marks are applied to the aforementioned products, that persons familiar with petitioner's marks, upon seeing the mark `E-Z OPEN' affixed to the package or carton containing meat, would reasonably assume that such container either originates with or is in some way connected with petitioner. I would therefore grant the petition to cancel respondent's registration."

47
I would, therefore, reverse the decision of the board dismissing the petition to cancel.


166 F.3d 1222
1999 CJ C.A.R. 121
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff--Appellee,v.Terry Wayne GLENN, Defendant--Appellant.
No. 97-5220.
United States Court of Appeals, Tenth Circuit.
Jan. 5, 1999.

Before KELLY, HOLLOWAY and LUCERO, C.J.
ORDER AND JUDGMENT*
LUCERO.
Appellant Terry Wayne Glenn pled guilty to several charges involving a conspiracy to violate federal narcotics laws.  On appeal he argues that the district court erroneously enhanced his sentence for possession of a dangerous weapon and for obstruction of justice.  We have jurisdiction pursuant to 18 U.S.C. § 3742, and affirm.
Upon pleading guilty to several charges stemming from his role in a drug distribution conspiracy, appellant Glenn was sentenced to life imprisonment.  Relying on the testimony of a witness who testified at the drug conspiracy trial of appellant's co-defendants, the sentencing court found that appellant possessed a dangerous weapon while engaging in a drug trafficking offense, thus warranting a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1).  The district court also found that by fleeing arrest, appellant willfully sought to obstruct justice so as to justify a two-level enhancement under U.S.S.G. § 3C1.1.  At sentencing, appellant objected to both enhancements.
We review a sentencing court's factual findings for clear error.  Its legal interpretation of the Sentencing Guidelines, we subject to de novo review.  See United States v. Wilson, 41 F.3d 1403, 1404 (10th Cir.1994).
Asserting a Sixth Amendment confrontation claim, appellant argues that in enhancing his sentence under § 2D1.1(b)(1), the district court erroneously relied on the testimony of a witness he was unable to cross-examine.  We have held, however, that at sentencing "a defendant does not have an absolute right to confront witnesses whose information is made available to the court."  United States v. Beaulieau, 893 F.2d 1177, 1180 (10th Cir.1990); accord United States v. Wise, 976 F.2d 393, 398 (8th Cir.1992); United States v. Carmona, 873 F.2d 569, 574 (2d Cir.1989).  Rather, testimony from a separate trial, if reliable, is admissible at sentencing.  See Beaulieu, 893 F.2d at 1181.  We discern no Sixth Amendment violation here because appellant's guilty plea lends sufficient reliability to the testimony of the witness in question.  At the trial of appellant's co-conspirators, the witness testified that appellant possessed weapons during the commission of a drug trafficking offense.  In statements of fact accompanying his guilty plea, appellant himself admitted to possessing weapons found in a mobile home that he used to distribute methamphetamine.
Appellant argues, however, that even with the witness's testimony and his own admission, the prosecution failed to carry its burden of proving that he possessed the weapons in question during the commission of a drug trafficking offense.  We agree that the government has a burden of proving by a "preponderance of the evidence" that the defendant possessed a dangerous weapon.  United States v. Jackson, 11 F.3d 953, 956 (10th Cir.1993).  However, we have also said the government meets this burden if, given the totality of the circumstances, it is not "clearly improbable" that the weapon was connected to the offense.  United States v. Nguyen, 1 F.3d 972, 973 (10th Cir.1993).
In this case the police found several weapons in close proximity to a quantity of drugs discovered at appellant's home.  Appellant also pled guilty to possession of the weapons.  As we review a sentencing court's factual findings for clear error, we conclude the court correctly found that appellant possessed dangerous weapons during the commission of a drug trafficking offense.  We affirm the court's enhancement of his sentence under U.S.S.G. § 2D1.1(b)(1).
Appellant next argues that the court erred when it enhanced his sentence by two levels for obstruction of justice pursuant to U.S.S.G. § 3C1.1.  We review for clear error a district court's factual findings concerning enhancement for obstruction of justice under U.S.S.G. § 3C1.1.  See United States v. Hankins, 127 F.3d 932, 934 (10th Cir.1997).
A sentencing court may impose a two-level increase in the offense level "if the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense."  U.S.S.G. § 3C1.1.  For purposes of this adjustment, obstruction of justice includes "escaping or attempting to escape from custody before trial or sentencing."  See U.S.S.G. § 3C1.1, comment.  (n. 4(e)).

1
Appellant challenges the applicability of § 3C1.1, contending his flight was instinctive and not "calculated to mislead or deceive authorities."  Appellant's Br. at 16-17.  This argument finds no support in the record.  Following his arrest, appellant was released on a state bond.  As part of an organized effort, he then joined several others in fleeing from authorities.  This was not an instinctive flight that occurs immediately upon being confronted with law enforcement authorities.

2
We must also reject appellant's argument that § 3C1.1 does not apply here because at the time of his flight, no indictment had been filed nor was he under subpoena.  The Guidelines acknowledge that, standing alone, certain conduct, like appellant's flight in this case, may not warrant enhancement under § 3C1.1. "However, if the defendant is convicted of a separate count for such conduct," the sentencing court is authorized to apply § 3C1.1, and enhance the offense level.  U.S.S.G. § 3C1.1, comment.  (n. 5).  In this case, appellant was convicted on a separate count of conspiracy to flee to avoid prosecution.  The sentencing court therefore appropriately enhanced his offense by two levels under U.S.S.G. § 3C1.1.

3
AFFIRMED.

*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.  This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3


                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                      No. 16-2033

JULIO ERNESTO MELENDEZ LIZAMA,

             Petitioner,

             v.

JEFFERSON B. SESSIONS III, Attorney General,

             Respondent.

              On Petition for Review of the Board of Immigration Appeals

Submitted: August 30, 2017                                  Decided: September 11, 2017

Before SHEDD, AGEE, and HARRIS, Circuit Judges.

Petition denied by unpublished per curiam opinion.

John T. Riely, Rockville, Maryland, for Petitioner. Chad A. Readler, Acting Assistant
Attorney General, Linda S. Wernery, Assistant Director, Janice K. Redfern, Senior
Litigation Counsel, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Julio Ernesto Melendez Lizama, a native and citizen of El Salvador, petitions for

review of an order of the Board of Immigration Appeals (Board) dismissing his appeal of

the Immigration Judge’s denial of his requests for asylum and withholding of removal.

We have thoroughly reviewed the record, including the transcript of Melendez Lizama’s

merits hearing and all supporting evidence. We conclude that the record evidence does

not compel a ruling contrary to any of the agency’s factual findings, see 8 U.S.C.

§ 1252(b)(4)(B) (2012), and that substantial evidence supports the Board’s decision,

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

      Accordingly, we deny the petition for review for the reasons stated by the Board.

See In re Melendez Lizama (B.I.A. Aug. 9, 2016). We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

                                                                   PETITION DENIED

                                            2