United States v. Upchurch , 88 F. App'x 794 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 1, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50404
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVA UPCHURCH,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-02-CR-66-2
Before GARWOOD, DEMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Alva Upchurch pleaded guilty to two counts of sexual
exploitation of children, and the district court sentenced her to
151 months in prison and a three-year term of supervised release.
Upchurch argues in this appeal that the district court erred in
determining that she had obstructed justice pursuant to U.S.S.G. §
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
3C1.1 and adjusting her offense level accordingly.
Because Upchurch adduced no evidence in the district court to
rebut the facts recited in the presentence report (PSR), the
district court was free to adopt those facts and rely upon them in
sentencing Upchurch. See United States v. Vital, 68 F.3d 114, 120
(5th Cir. 1995).
The PSR details Upchurch’s attempt to persuade the victim to
recant the account of the underlying facts that she gave to police.
This incident forms a sufficient basis for the district court’s
imposition of the disputed adjustment. See U.S.S.G. § 3C1.1,
comment. (4(a)). Upchurch has not shown that the district court’s
findings on this issue are not “plausible in light of the record as
a whole.” United States v. Brown, 7 F.3d 1155, 1159 (5th Cir.
1993) (internal quotations and citation omitted).
Upchurch argues that her attempt to have the minor victim
recant the account she gave the police occurred approximately two
days before the federal, as opposed to the state, investigation
began. The record contains nothing from which it may be inferred
that a federal investigation had commenced before Upchurch
attempted to have the minor victim recant, nor did the district
court or the PSR find or state that a federal (as opposed to a
state) investigation had then begun.
Upchurch relies on United States v. Clayton, 172 F.3d 347 (5th
Cir. 1999). Clayton, however, is inapposite, as there the
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allegedly obstructive conduct occurred immediately after commission
of the offense, and before any investigation had commenced. While
our opinion there does refer to “the federal investigation,” there
is no suggestion in Clayton that there was ever any other
investigation, and it is apparent that there could not have been at
the time of the assertedly obstructive conduct, which was
essentially contemporaneous with the offense. Here the criminal
conduct constituting the federal offense (violation of 18 U.S.C. §
2251(a) where the “visual depiction was produced using materials
that have been mailed, shipped or transported in interstate or
foreign commerce by any means, including by computer”) had all
occurred and was the identical conduct that was allegedly under
investigation by the local police, as Upchurch was plainly aware,
at the time of her effort to cause the minor victim to recant which
was clearly designed to obstruct that and any other investigation
into that criminal conduct. The fact that the federal authorities
are not shown to have then commenced their investigation is in
these circumstances not determinative. See United States v.
Roberts, 243 F.3d 235, 238-40 (6th Cir. 2001), and authorities
there cited.
Upchurch’s argument that her efforts to have the victim recant
did not in fact significantly impede any investigation are without
merit. Such obstruction comes within U.S.S.G. § 3C1.1, comment
4(a) which covers “attempting” to “unlawfully influenc[e] a . . .
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witness.” Upchurch’s reliance on United States v. Ahmed, 324 F.3d
368 (5th Cir. 2003), is misplaced, as Ahmed concerned only false
material statements to law enforcement officers and under U.S.S.G.
§ 3C1.1 comments 4(g) and 5(b), that form of obstruction normally
must have “significantly obstructed or impeded” the investigation
or prosecution.
Accordingly, the district court’s judgment is
AFFIRMED.
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