(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-2023 &
No. 92-2386
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUY SCHNEIDER,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(CR H 90 0152 01)
______________________________________________
(November 18, 1992)
Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.*
GARWOOD, Circuit Judge:
This cause is a criminal appeal, and consolidated therewith
for purposes of appeal, an appeal from the denial of a pro se
mandamus petition, of defendant-appellant Guy Jerome Schneider
(Schneider). Schneider was charged in a four-count indictment,

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2
returned on April 4, 1990, with attempting on February 15, 1990, to
destroy by means of an explosive, property being used in an
activity affecting interstate commerce, contrary to 18 U.S.C. §
844(i) (count one); failing to pay tax on making firearms, contrary
to 18 U.S.C. §§ 5821, 5861(c), and 5871 (count two); possessing
unlawfully a firearm which was not registered, contrary to 26
U.S.C. §§ 5861(d) and 5871 (count three); and possessing a firearm
which was not identified by a serial number, contrary to 26 U.S.C.
§§ 5861(i) and 5871 (count four). On May 25, 1990, Schneider's
plea of guilty to the first two counts was accepted; the plea being
pursuant to an agreement under which the government would dismiss
counts three and four. On September 3, 1990, Schneider was
sentenced on counts one and two. Schneider did not appeal, but he
subsequently filed a petition pursuant to 28 U.S.C. § 2255. After
an evidentiary hearing on December 19, 1991, the district court
granted Schneider this out-of-time appeal in which he challenges
his sentence and alleges ineffective assistance of counsel. In a
separate action, Schneider also brings an appeal of the district
court's denial of his pro se mandamus petition brought pursuant to
28 U.S.C. §§ 1361, 1821, and 1825, in which he seeks a witness fee
for appearing at his own evidentiary hearing in the section 2255
proceeding. Finding no reversible error, we affirm in each case.
Facts and Proceedings Below
According to the factual findings of the district court,
around midnight on February 14, 1990, Schneider and his associate,
Ricky Hutchison (Hutchison), drove their motorcycles to Jennifer
Reeves' (Reeves) apartment complex. Schneider gave Hutchison a

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1 Hutchison planted and set-off the bomb because Schneider
told him to and agreed to give him a quarter-pound of marihuana
for doing so.
3
home-made pipe bomb and instructed him to tape it to the underside
of the gas tank of Reeves' jeep which was parked approximately ten
feet from the complex structure.1 A motorcycle was parked next to
the jeep. After Hutchison attached the bomb and lit a delayed
fuse, the two of them drove off. The subsequent explosion ruptured
the vehicle's gas tank, causing fragmentation. Shrapnel, capable
of causing serious bodily injury or death, was found throughout the
parking lot and as far away from the vehicle as forty feet.
Alcohol, Tobacco and Firearms (ATF) Special Agent Jimmy D.
Brigance (Brigance) was subsequently notified of the explosion.
Brigance interviewed Reeves who told him that Schneider had been
her boyfriend but her breakup with him had not been friendly. She
stated that Schneider had fired shots in the parking lot outside of
her apartment, broken out her apartment window, sprayed graffiti on
her jeep, and threatened to kill her new boyfriend. On February
16, 1990, Brigance executed a search warrant for Schneider's
residence wherein he recovered evidence of the pipe bomb's
construction. No one was home, but Brigance left a warrant receipt
in the residence.
Schneider subsequently moved out of the apartment and he told
his roommate that he should also hide from the ATF agents who were
looking for Schneider. He also told another associate to avoid ATF
agent Brigance. Schneider remained on the run until he was

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2 By that time, a grand jury had already returned on April 4,
1990, a four-count indictment against Schneider.
3 The court also warned Schneider that if it imposed a
sentence more severe than he anticipated, he was still bound to
his guilty plea and could not change it. Schneider indicated
that he understood this admonition as well.
4
apprehended on April 10, 1990.2
Upon arrest, Schneider waived his legal rights and gave
Brigance a statement. He first asserted that some Mexicans had
bombed Reeves' vehicle. He then admitted that he blew up Reeves'
vehicle because she was seeing another boyfriend. He also admitted
to fabricating the bomb and to recruiting Hutchison to help him
detonate the device. Pursuant to a plea bargain, Schneider then
agreed to cooperate in the government's investigation and
prosecution of Hutchison in return for the government dropping
counts three and four from Schneider's indictment and recommending
a twenty-four month sentence for counts one and two combined.
Schneider pleaded guilty to counts one and two on May 25,
1990. Before accepting his plea, the court advised Schneider that
the government's recommendation of a twenty-four month sentence was
not binding on the court and that the court could impose a longer
sentence. Schneider agreed that he understood this admonition.3
After setting the date for sentencing, the court was informed that
Schneider had sent a threatening letter to Reeves. The court then
admonished Schneider that he could be charged with the separate
federal crime of obstruction of justice and that the behavior could
also be used to increase his total offense level for sentencing
purposes.

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4 The applicable version of the sentencing guidelines is the
one in effect on September 3, 1990, the date on which Schneider
was sentenced, 18 U.S.C. § 3553(a)(4), namely the 1990 edition of
the Federal Sentencing Guidelines Manual.
5 One conviction was based on a misdemeanor assault in Harris
County, Texas, for which Schneider was fined. Apparently the PSR
listed the wrong cause number for this conviction. The other
conviction was based on a misdemeanor for evading arrest in
Harris County, Texas, for which Schneider was assessed a fine and
sentenced to three days confinement.
5
On September 3, 1990, after both the government and
Schneider's counsel declined to object to the pre-sentence report
(PSR), it was adopted by the district court. The district court
then determined Schneider's sentence according to the sentencing
guidelines.4 It found that the base offense level was six for the
offenses of conviction. The court added fourteen points because
Schneider recklessly endangered the safety of others, pursuant to
U.S.S.G. § 2K1.4(b)(2). The court also added two points for
Schneider's role as supervisor of the offense pursuant to U.S.S.G.
§ 3B1.1(c) and two points for his obstruction of justice pursuant
to U.S.S.G. § 3C1.1. The court subtracted two points for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a),
resulting in a total offense level of twenty-two. The district
court determined Schneider's criminal history category of II by
awarding him one criminal history point for each of two misdemeanor
convictions.5 The district court determined that the guideline
imprisonment range for Schneider, based on his offense level of
twenty and his criminal history category of II, was forty-six to
fifty-seven months. No objection was made to these determinations.
The court then sentenced Schneider to two concurrent fifty-seven

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6 Schneider at the section 2255 evidentiary hearing
essentially confirmed that he had threatened witness Mike
Piatowski whom he had told about placing the bomb under Reeves'
car. Schneider testified that he sent Piatowski a letter which
did "not exactly threaten" him but "[i]t let him know that I
wasn't exactly all too happy."
6
month terms of imprisonment, followed by a three-year term of
supervised release, a $3000 fine, and a $100 special assessment.
Schneider did not appeal, but he subsequently filed a petition
pursuant to 28 U.S.C. § 2255 alleging that: his criminal history
had been miscalculated by using two convictions for which the term
of incarceration did not exceed one year; he was not advised that
he could appeal his sentence; and his counsel was ineffective
because counsel did not object to the use of the two convictions,
nor did he advise Schneider of the right to appeal.
The sentencing district court held an evidentiary hearing on
these charges on December 19, 1991, in which Schneider testified
and was represented by new counsel. Schneider's trial counsel,
James Sims (Sims), testified that after the PSR was filed he
learned that Schneider had made threats against different
witnesses, of which the district court was not yet aware.6 Sims
further testified that he had admonished Schneider several times
that for this kind of conduct the government could file criminal
obstruction charges against him which could result in consecutive
sentences, but Schneider refused to heed the warnings. Sims also
stated that he understood that during sentencing an ATF agent was
coming to the courtroom to try and intercede in the proceedings
based upon a new threat by Schneider. Also, Schneider had told

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7
Sims that he was going to disrupt the courtroom proceedings. Sims
testified that his trial strategy at that point was to have
Schneider sentenced as soon as possible so that he would not
receive an obstruction of justice charge or other adverse
sentencing consequences.
Sims testified that he reviewed the PSR with Schneider,
specifically the section concerning Schneider's criminal history.
Schneider told Sims that he had pleaded guilty to the assault
charge in a justice court in Harris County, Texas. Sims also
testified that he believed it was proper to include both
misdemeanors in calculating Schneider's criminal history category
and that all the enhancements to the base offense level were proper
as well.
At the end of the hearing, the district court found that it
had failed to tell Schneider of his right to appeal and it granted
to him an out-of-time appeal. The district court found the rest of
Schneider's claims meritless. Schneider now brings this out-of-
time appeal.
On March 19, 1992, Schneider filed with the district court a
pro se petition for mandamus relief pursuant to 28 U.S.C. § 1361,
alleging that he was entitled to a witness fee for appearing at his
section 2255 hearing. The district court denied Schneider's
petition because he failed to show he had a clear right to witness
fees or that the United States Attorney had a clear duty to certify
Schneider's status as a witness entitled to fees. Schneider now
also appeals the denial of his mandamus petition.

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7 In a separate pro se supplemental brief, Schneider also
alleges that the district court erred by not, sua sponte,
permitting him to withdraw his guilty plea per Fed. R. Crim. P.
11(e)(4), after it had elected to impose a sentence higher than
the twenty-four months recommended by the government pursuant to
the plea agreement. Usually, issues raised in a supplemental
brief are disregarded where the party submitting the brief is
already represented by counsel. Fifth Circuit Court Policy 2c.
However, even if we were to consider the brief, we would
reject Schneider's argument. Schneider's plea agreement is not
governed by the Rule 11(e)(4) provision since the written plea
agreement, which he signed, warned him that the judge did not
have to accept the government's sentencing recommendation and
informed him that the plea agreement was governed by Rule
11(e)(1)(B). This provision allows the district court to reject
the sentencing recommendation under the plea agreement without
having to give the defendant the opportunity to withdraw his
plea. The district court also verbally admonished Schneider that
it was not bound by the recommendation and that a sentence
greater than Schneider anticipated would not allow him to
withdraw his plea.
As Schneider pleaded guilty pursuant to a Rule 11(e)(1)(B)
agreement, the district court was not bound by Rule 11(e)(4) to
permit withdrawal of the plea upon rejection of the government's
sentencing recommendation. United States v. Clark, 931 F.2d 292,
296 (5th Cir. 1991). Rule 11(e)(4) is not applicable to Rule
11(e)(1)(B) agreements. United States v. Bachynsky, 949 F.2d
722, 728-29 n.5 (5th Cir. 1991).
8
We consolidated the two appeals.
Discussion
I. Criminal Appeal
Schneider raises several issues on appeal concerning the
determination of his sentence. First, he complains that the
district court improperly counted two prior misdemeanor convictions
toward determining his criminal history category. Also, Schneider
argues that the district court improperly enhanced his base offense
level for obstructing justice, supervising the crime, and
recklessly endangering the lives of others. Finally, Schneider
argues that his trial counsel's failure to object to these matters
resulted in ineffective assistance of counsel.7

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9
Schneider's complaints are based on the district court's
allegedly improper factual determinations supporting its
application of the sentencing guidelines. Generally, a district
court's sentencing determination must be upheld "so long as it
results from a correct application of the guidelines to factual
findings which are not clearly erroneous." United States v.
Alfaro, 919 F.2d 962, 964 (5th Cir. 1990). However, as to improper
sentencing claims involving factual determinations, these matters
must be the subject of an objection at the time of sentencing so
that the district court can make a finding which can be reviewed on
appeal, otherwise the issue is waived. United States v. Smallwood,
920 F.2d 1231, 1238 (5th Cir. 1991); United States v. Mourning, 914
F.2d 699, 704 (5th Cir. 1990). By failing to raise his complaints
below, Schneider's "[i]ssues raised for the first time on appeal
are reviewed only for plain error." United States v. Bleike, 950
F.2d 214, 219 (5th Cir. 1991).
Unless a result of plain error, any erroneous factual findings
are only relevant as they apply to Schneider's ineffective
assistance of counsel claim. Although this Court does not usually
consider ineffective assistance of counsel claims on direct appeal,
it will do so where the record below has been sufficiently
developed to provide substantial details about the attorney's
conduct. United States v. Bounds, 943 F.2d 541, 544 (5th Cir.
1991). Here, the district court held an evidentiary hearing that
extensively inquired into Sims' conduct.
The issue of ineffective assistance of counsel must be
measured by the standards of Strickland v. Washington, 104 S.Ct.

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10
2052 (1984). To prevail upon a claim that his counsel's
performance was so defective as to require vacation of his
sentence, Schneider must satisfy a two-prong test. First, he must
show that counsel made errors so serious that he was not
functioning as the "counsel" guaranteed by the Sixth Amendment;
second, Schneider must show that the deficient performance likely
prejudiced the defense. Id. at 2064. To demonstrate deficiency,
Schneider must show that his counsel's actions "fell below an
objective standard of reasonableness." Id. To demonstrate
prejudice, he must show that a "reasonable probability" exists
that, "but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 2068. Failure to
make both showings is fatal to Schneider's claim of ineffective
assistance of counsel. Id. at 2064.
Judicial scrutiny of counsel's performance is highly
deferential; the Supreme Court has advised that the reviewing court
"must judge the reasonableness of counsel's challenged conduct on
the facts of the particular case, viewed as of the time of
counsel's conduct." Id. at 2066. This means that the reviewing
court must strongly presume that counsel has exercised reasonable
professional judgment. Id. "[S]econd-guessing is not the test for
ineffective assistance of counsel." King v. Lynaugh, 868 F.2d
1400, 1405 (5th Cir. 1989).
In the case sub judice, Sims testified that he did not object
to the PSR because he thought it was accurate and he wanted to
bring the sentencing hearing to a speedy conclusion due to
Schneider's threats to witnesses and his articulated intention to

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11
disrupt the judicial proceeding. As the Supreme Court noted in
Strickland, "Counsel's actions are usually based, quite properly,
on informed strategic choices made by the defendant and on
information supplied by the defendant." Id. at 2066. In cases
such as this, "We must strongly presume that trial counsel rendered
adequate assistance and that the challenged conduct was the product
of reasoned trial strategy." Wilkerson v. Collins, 950 F.2d 1054,
1065 (5th Cir. 1992). Here, counsel's strategy was based on the
reasonable goal of shielding Schneider from losing his two-point
reduction for acceptance of responsibility and other possible
adverse sentencing consequences and from being charged with the
separate offense of obstruction of justice. Keeping counsel's
strategy in mind, we now turn to Schneider's specific complaints.
A. Criminal History
Schneider challenges the district court's calculation of his
criminal history category, alleging that the two misdemeanor
convictions were erroneously included. Without the addition of
either one of the two criminal history points, Schneider would have
had a criminal history category of I; with both points, his
category was II. Based upon his offense level of twenty-two, this
resulted in his sentencing guideline range being forty-six to
fifty-seven months, instead of forty-one to fifty-one months.
Schneider's sentence was fifty-seven months.
Schneider argues that the assault conviction was improperly
included because the case number in the PSR refers to a traffic
ticket. However, Schneider never presented evidence supporting his
claim. By Schneider's failure to object to the PSR, it was not

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12
plain error for the district court to rely on the PSR's factual
description concerning the assault conviction. Furthermore, Sims's
having failed to investigate whether the proper cause number was on
the report was properly found not to constitute ineffective
assistance. Schneider told Sims, and admitted in his brief to this
Court, that he was convicted for assault. Sims had no reason to
believe that the assault charge was improper and if he had
objected, the typographical error would have been corrected,
resulting in no change to Schneider's sentence. Schneider further
argues that the assault conviction itself is constitutionally
invalid because he was not represented by counsel. However,
conviction of an uncounseled criminal defendant is constitutionally
permissible so long as the defendant is not sentenced to a term of
imprisonment. Scott v. Illinois, 99 S.Ct. 1158, 1162 (1979);
United States v. Eckford, 910 F.2d 216 (5th Cir. 1990). Schneider
merely received a fine, so the district court properly considered
the assault conviction in calculating his criminal history
category. United States v. Smith, 844 F.2d 203, 208 (5th Cir.
1988). Finally, Schneider (pro se) asserts that the assault
conviction was improper because he never appeared in court. This
was not alleged below, but merely mentioned in passing in
Schneider's testimony at the section 2255 hearing. However, Sims
testified that Schneider told him "he had . . . pled guilty for an
assault in a justice court here in Harris County"; thus, it could
properly be found that Sims was led by Schneider to believe there
was no reason to suspect his plea was taken other than in open
court, and that hence Sims was not ineffective for failing to raise

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8 This section provides in pertinent part, "Sentences for the
following prior offenses and offenses similar to them, by
whatever name they are known, are counted only if (A) the
sentence was a term of probation of at least one year or a term
of imprisonment of at least thirty days, or (B) the prior offense
was similar to an instant offense." U.S.S.G. § 4A1.2(c). The
list of prior offenses includes "False information to a police
officer" and "Hindering or failure to obey a police officer."
Id. The parties apparently do not dispute that the evading
arrest conviction is similar to these listed offenses.
13
this matter.
Schneider also objects to the district court's inclusion of
his misdemeanor conviction for evading arrest in its determination
of his criminal history category pursuant to U.S.S.G. § 4A1.2(c).8
Since Schneider was confined for only three days, the prior
conviction can be considered only if it is similar to conduct
involved in "the instant offense." Schneider argues that the
conduct concerning evading arrest is not part of "the instant
offense," nor is it similar to the conduct resulting in the
evading-arrest conviction.
This Court has held that the language "'the instant offense'
includes any 'relevant conduct' as that phrase is used throughout
the guidelines," and not just conduct that is actually charged in
the indictment. United States v. Harris, 932 F.2d 1529, 1538 (5th
Cir. 1991) (interpreting U.S.S.G. § 4A1.1(d) & (e)). This broad
interpretation of the language is consistent with the guidelines'
approach generally. Cf. United States v. Arellano-Rocha, 946 F.2d
1105, 1108 (5th Cir. 1991). We believe this reasoning is also
correct in interpreting section 4A1.2(c). This conclusion appears
consistent with other provisions in the guidelines which allow for
the consideration of relevant conduct which is not necessarily a

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14
part of the charged offense. See e.g., section 1B1.3, Background
Commentary (indicating that "conduct that is not formally charged
or is not an element of the offense of conviction may enter into
the determination of the applicable guideline sentencing range");
section 2D1.2, Application Note 1 (permitting consideration of
uncharged acts relating to a conspiracy to determine the scope of
the conspiracy); section 2D1.1, Application Note 12 (allowing the
use of drug quantities and types not specified in the indictment to
calculate the base offense level); section 3B1.1, Introductory
Comments (noting that the defendant's role in the offense is to be
determined by considering all relevant conduct, and not just the
conduct forming the basis of the conviction). Therefore, the
district court did not plainly err in considering evading arrest as
part of "the instant offense."
Regarding the similarity between evading and the prior
offense, the unobjected to PSR describes Schneider's behavior which
resulted in the evading arrest conviction to include supplying a
false name to Harris County Constable deputies, fleeing from them,
and avoiding apprehension for eight months. In the case sub
judice, the unobjected to PSR described Schneider's conduct to
include moving out of his apartment after finding the search
warrant receipt left by an ATF agent, telling two potential
witnesses to avoid ATF agents, and remaining "on the run" for
several months. By failing to object to the PSR, Schneider cannot
now complain about the factual basis for the district court's
decision since it was not given the opportunity to make factual
findings that could be reviewed by this Court.

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9 Moreover, further emphasis on the evading arrest conduct
here might well have led to denial of the acceptance of
15
It was not plain error for the district court to conclude that
the prior evading arrest charge was similar to Schneider's current
conduct.
Nor was it unreasonable under Strickland for Sims to fail to
object to the inclusion of the offense. As noted above, Harris and
the general thrust of the guidelines support considering the
evading arrest conduct as part of "the instant offense."
Concerning the similarity of the conduct, this Court has taken a
common-sense approach in determining whether offenses are similar.
United States v. Hardeman, 933 F.2d 278 (5th Cir. 1991). Such an
approach, "relies on all possible factors of similarity, including
a comparison of punishments . . ., the perceived seriousness of the
offense . . ., the elements of the offense, the level of
culpability involved, and the degree to which the commission of the
offense indicates a likelihood of recurring criminal conduct." Id.
at 281. Although this approach was held to be applicable where the
issue was whether the prior conviction was similar to a listed
offense, it would have been reasonable for Sims to conclude that
this same approach applied to determining whether the listed
offense was similar to the instant conduct. Therefore, it was not
unreasonable for Sims to believe that under this common-sense
approach the two acts were similar and that an objection would be
meritless. Sims reluctance to make such an objection also seems
reasonable in light of his trial strategy to end the sentencing
hearing as soon as possible.9

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responsibility two-point offense level reduction.
16
B. Offense Level Calculation
Schneider claims that he should not have received the fourteen
point enhancement for "recklessly endangered the safety of another"
pursuant to U.S.S.G. § 2K1.4(b)(2) because he detonated the bomb at
night so as to reduce the danger of an innocent bystander being
maimed or killed, and he didn't intend to actually hurt anyone. He
argues that he should have instead received only a four-point
enhancement for "endangered the safety of another person" pursuant
to U.S.S.G. § 2K1.4(b)(5). However, he failed to raise these
arguments below so his point of error is subject to the plain error
doctrine. As noted in United States v. Lopez, 923 F.2d 47 (5th
Cir. 1991), "Questions of fact capable of resolution by the
district court upon proper objection at sentencing can never
constitute plain error." Id. at 50. Schneider had ample
opportunity to raise this factual argument with the district court,
but failed to do so and his objection is therefore waived.
Smallwood, 920 F.2d at 1238.
Besides being no plain error by the district court in applying
the enhancement, Schneider's counsel was not ineffective by failing
to object to the enhancement. The fourteen-point enhancement did
not require that Schneider have the specific intent to hurt anyone;
he needed only to have been reckless or indifferent to the
consequences of his behavior. See, United States v. Adamson, 700
F.2d 953 (5th Cir. 1983) (en banc) (holding that "jury instructions
should not equate recklessness with intent to injure"); Black's Law

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17
Dictionary 1142 (5th ed. 1979). Schneider's intentional act of
causing the explosion coupled with his callous disregard for the
possibility of harm to bystanders sufficed to invoke U.S.S.G. §
2K1.4(b)(2).
Furthermore, the factual basis for the enhancement was
reasonable considering that the shrapnel traveled a distance of
forty feet and could have easily injured or killed an innocent
bystander. Schneider admitted that if people were walking by when
the bomb exploded, they could have been hurt or killed. Sims
testified that he was certainly "aware of the dangerous
potentiality of that type of situation." Considering these facts
and Sims' trial strategy, his failure to object, if deficient at
all, does not seem so deficient under Strickland as to deny
Schneider counsel as guaranteed under the Sixth Amendment.
Schneider also complains that he should not have received a
two-point enhancement for his status as supervisor of the offense.
He claims that since no evidence supports the existence of a
criminal enterprise, he cannot be characterized as the supervisor
of the offense. This point cannot be reviewed by this Court
because he has failed to raise this asserted factual error below.
Also, his attorney's failure to object did not rise to ineffective
assistance of counsel because the guideline does not apply merely
to a criminal enterprise, but rather to any criminal activity.
U.S.S.G. § 3B1.1(c) (allowing the enhancement where "the defendant
was an organizer, leader, manager, or supervisor in any criminal
activity"). This criminal activity can consist of the supervisor
and one other participant. United States v. Vasquez, 874 F.2d 250,

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18
252 (5th Cir. 1989).
Nor was it error to consider Schneider to be the supervisor of
the offense. As pointed out in United States v. Hinojosa, 958 F.2d
624, 633 (5th Cir. 1992), the application notes to the section
provide that:
"Factors the court should consider include the exercise
of decision making authority, the nature of participation
in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the
fruits of the crime, the degree of participation in
planning or organizing the offense, the nature and scope
of the illegal activity, and the degree of control and
authority exercised over others." U.S.S.G. § 3B1.1(c),
Application Note 3.
Applying these factors, we note that Schneider conceived and
planned the offense. He manufactured the bomb and paid Hutchison
one-quarter pound of marihuana in return for placing and detonating
the bomb. Finally, Schneider directed Hutchison on where and how to
place the bomb. All of these facts reasonably indicate that
Schneider was the supervisor of the criminal activity. Trial
counsel's timely objection, if made, would not have changed the
outcome. Given counsel's trial strategy, it was not unreasonable
for counsel to fail to make an objection.
Schneider finally objects to the two-point enhancement for
obstruction of justice which he claims is based on threats to
Reeves and others. He argues that, because the record is devoid of
any evidence that his letter to Reeves was threatening, and the
court found that the additional threats were too late to be
considered, the enhancement was improper. Again, he did not object
below; the error is waived. Nor can we say that his counsel was
ineffective for failing to object. The enhancement was not based

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10 This statute provides in pertinent part that "[e]xcept as
otherwise provided by law, a witness in attendance at any court
of the United States . . . shall be paid the fees and allowances
provided by this section." 28 U.S.C. § 1821(a)(1).
19
on the letter but rather on Schneider's deliberate evasion of law
enforcement agents he knew were looking for him, and the fact that
he told two of his associates to hide as well. Although he now
disputes these facts, he testified at his section 2255 hearing that
he did not inform his attorney, after reviewing the PSR, that the
PSR was inaccurate on this matter. Since his counsel had no notice
that the PSR might be inaccurate, and in light of Schneider's
pattern of obstructionist behavior, it was not unreasonable for
Sims to fail to object.
II. Mandamus Appeal
Schneider appeals the district court's denial of his pro se
mandamus petition seeking to compel certification of his witness
fees for appearing at his own section 2255 hearing. This hearing
was held on December 19, 1991, when he was in the custody of the
Texas Department of Corrections. The district court's denial of
the mandamus petition is reviewed under an abuse of discretion
standard. In re Hester, 899 F.2d 361, 367 (5th Cir. 1990). We
find no abuse of discretion.
Schneider argues that he has a right to witness fees under 28
U.S.C. § 1821.10 He also relies on Demarest v. Manspeaker, 111
S.Ct. 599 (1991), where the Supreme Court held that a convicted
state prisoner who testified at another person's criminal trial was
entitled to witness fees under section 1821 because "the general
language 'witness in attendance at any court of the United States'

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11 Even if Congress had not excepted incarcerated persons from
the statute, Schneider likely would not have been eligible for
witness fees because he was a witness at his own hearing. As the
movant, he likely could not receive any witness fees even though
he testified at the hearing. Cf., Todd Shipyards Corp. v.
Turbine Serv., Inc., 592 F.Supp. 380, 400 n. 24 (E.D. La. 1984),
20
found in subsection (a)(1) includes prisoners unless they are
otherwise excepted in the statute." Id. at 602.
We have held that to grant mandamus relief, the court must
find (1) that the plaintiff has a clear right to the relief sought,
(2) that the defendant has a clear duty to do the action in
question, and (3) that no other adequate remedy is available.
Green v. Heckler, 742 F.2d 237, 241 (5th Cir. 1984). The remedy of
mandamus is inappropriate in the case sub judice because Schneider
has no clear right to the relief sought under the statute.
As the United States points out, prisoners seeking witness
fees have been subsequently excepted from the statute. Congress
has expressly excluded incarcerated persons from entitlement under
section 1821:
"Notwithstanding 28 U.S.C. 1821, no funds appropriated to
the Department of Justice in fiscal year 1992 or any
prior fiscal year, or any other funds available from the
Treasury of the United States, shall be obligated or
expended to pay a fact witness fee to a person who is
incarcerated testifying as a fact witness in a court of
the United States . . . ." 105 Stat. 782, 795 (1991)
(emphasis added); see also 105 Stat. 130, 136 (identical
language applicable to 1991 and all prior fiscal years).
This appropriations act was enacted on October 28, 1991 and covered
the year ending September 30, 1992. 105 Stat. at 782, 833. Since
Schneider was incarcerated during his hearing on December 19, 1991,
he cannot receive witness fees from funds appropriated "in fiscal
year 1992 or any prior fiscal year."11 Schneider has failed to show

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aff'd in part and rev'd in part, 763 F.2d 745 (5th Cir. 1985)
(noting that in civil litigation a person is not entitled to
witness fees if he is identified as a party in interest).
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that he has a right to witness fees, therefore we find no abuse of
discretion and affirm the denial of his petition by the district
court below.
Conclusion
Schneider has failed to demonstrate reversible error in his
conviction or in the district court's sentence. Nor has he shown
that the district court erred in rejecting, following a full
evidentiary hearing, Schneider's claims of ineffective assistance
of counsel. Furthermore, Schneider has failed to show any right to
witness fees.
In Cause No. 92-2023, Schneider's conviction and sentence are
AFFIRMED.
In Cause No. 92-2386, the district court's denial of
Schneider's mandamus petition is AFFIRMED.

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