UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4440

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LARRY ROBERT JACKSON,

Defendant - Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Beckley. Thomas E. Johnston, 

District Judge. (5:08-cr-00132-1)

Submitted: April 30, 2010 Decided: June 7, 2010

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, David R. Bungard, 

Assistant Federal Public Defender, Jonathan D. Byrne, Appellate 

Counsel, Charleston, West Virginia, for Appellant. Charles T. 

Miller, United States Attorney, R. Booth Goodwin II, Assistant 

United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Larry Robert Jackson pleaded guilty to one count of 

wire fraud, in violation of 18 U.S.C. § 1343 (2006). The 

district court sentenced Jackson to twenty-four months in prison 

and ordered him to pay restitution of $29,078. Jackson appeals, 

raising two issues. First, he claims the district court erred 

by imposing a two-level sentencing enhancement for obstruction 

of justice; second, he argues that $2400 of the $29,078 in 

restitution should not have been awarded. We affirm.

This case revolved around a fraudulent business 

transaction. Jackson, a West Virginia resident, agreed to trade 

four bulldozers to Industrial Buckets, a Mexican company, for an 

excavator and $36,500. Jackson received the excavator, which he 

then traded to a man named Jeff Cooley for a used excavator and 

$17,500. Jackson, however, never owned or possessed the four 

bulldozers he promised to Industrial Buckets. Subsequently, 

Cooley purchased the Industrial Buckets excavator for $45,000, 

some $11,000 less than Industrial Buckets claimed the machine 

was worth. 

In the course of the investigation, West Virginia 

State Police Sergeant T.C. Bledsoe interviewed Jackson. The 

same evening as the interview, Jackson threatened to commit 

suicide and was taken to the hospital. In a hospital waiting 

room, Jackson told Christy Stanley, an emergency medical 
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technician, “Before I go to the state pen and be charged with 

these charges, I will shoot Sergeant Bledsoe in the head and 

kill him, and then I’ll shoot myself and I won’t even have to 

go.” Based on this threat, the probation officer recommended in 

the presentence report a two-level adjustment for obstruction of 

justice under U.S. Sentencing Guidelines Manual § 3C1.1 (2008). 

The probation officer also recommended restitution of $20,778 to 

Jeff Cooley and $16,900 to Industrial Buckets. Industrial 

Buckets’ claimed loss of $16,900 included $11,000 that 

Industrial Buckets said it lost when it resold the excavator to 

Cooley, as well as $2400 for shipping the excavator to Jackson, 

$2000 in travel expenses, and $1500 for lost work hours. 

At sentencing, the Government called Stanley as a 

witness, and she testified about the above threat to Bledsoe. 

Over Jackson’s objection, the district court applied the 

adjustment for obstruction of justice. The district court also 

ordered total restitution of $29,078, reducing Industrial 

Buckets claim from $16,900 to $8300. The district court arrived 

at $8300 by denying Industrial Buckets’ $11,000 resale loss, but 

awarding the company $2400 in shipping costs, which reflected 
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the amount it would have cost the company to return the 

excavator to Mexico.*

The sentencing guidelines provide for a two-level 

adjustment to a defendant’s offense level if the defendant 

“willfully obstructed or impeded, or attempted to obstruct or 

impede, the administration of justice with respect to the 

investigation, prosecution, or sentencing of the instant offense 

of conviction, and . . . the obstructive conduct related to (i) 

the defendant’s offense of conviction and any relevant conduct; 

or (ii) a closely related offense.” USSG § 3C1.1. Obstructive 

conduct within the meaning of § 3C1.1 includes, but is not 

limited to, “threatening, intimidating, or otherwise unlawfully 

influencing a co-defendant, witness, or juror, directly or 

indirectly, or attempting to do so.” Id., cmt. n.4(a). Whether 

a defendant obstructed justice is a factual question reviewed 

for clear error. United States v. Kiulin, 360 F.3d 456, 460 

(4th Cir. 2004). This deferential standard of review requires 

reversal only if the court is “‘left with the definite and firm 

conviction that a mistake has been committed.’” United States 

v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting 

Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).

 * The district court assumed the return freight would have 

been the same as the cost to have the excavator shipped to West 

Virginia.
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On appeal, Jackson argues that the district court 

erred by imposing the obstruction of justice adjustment because 

Stanley’s uncorroborated testimony was insufficient evidence 

that Jackson made the threat. Jackson further argues that, even 

if he did make the threat, it did not warrant the adjustment

given his fragile mental state at the time it was allegedly 

made. We have reviewed the facts of this case and find the 

district court did not clearly err in imposing the sentencing 

enhancement. The district court found Stanley’s testimony 

credible, and this court defers to the district court’s 

credibility determinations. United States v. Abu Ali, 528 F.3d 

210, 232 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009). 

The record thus reflects that Jackson made a threat to kill

Bledsoe and that Jackson made the threat to a person who would 

likely convey it to Bledsoe. Accordingly, there was sufficient 

evidence to support the conclusion that Jackson attempted to 

impede the investigation and prosecution of his offense.

A district court's order of restitution is reviewed 

for abuse of discretion. United States v. Henoud, 81 F.3d 484, 

487 (4th Cir. 1996). By definition, a court abuses its 

discretion when it makes an error of law. EEOC v. Navy Fed. 

Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). Under the 

Victim and Witness Protection Act (“VWPA”), the district court 

may order a defendant to pay restitution to any victim of an 
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offense of conviction. See 18 U.S.C.A. § 3663(a)(1)(A) (West 

Supp. 2009); United States v. Blake, 81 F.3d 498, 506 (4th Cir. 

1996) (authority of district court to order restitution is 

limited to terms of VWPA). The district court’s restitution 

order shall require the defendant to return the victim’s 

property or pay the victim for the property’s loss in value. 

See 18 U.S.C. § 3663A(b)(1) (2006).

Jackson argues that the district court erred in 

awarding Industrial Buckets $2400 because the company did not 

actually transport its excavator back to Mexico. We find the 

district court did not abuse its discretion in ordering the 

$2400 in restitution. Industrial Buckets essentially had two 

choices: reclaim the excavator from West Virginia or resell it. 

The district court assessed Jackson $2400, the cost of 

reclaiming the excavator, because Industrial Buckets’ decision 

to sell it at a loss may have been influenced by business 

considerations not directly attributable to Jackson’s crime. We 

find no abuse of discretion.

Accordingly, we affirm the sentence. We dispense with 

oral argument because the facts and legal contentions are 

adequately presented in the materials before the court and 

argument would not aid the decisional process.

AFFIRMED