UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5512

RODNEY JEROME SUMLER,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

William L. Osteen, Sr., District Judge.

(CR-91-107)

Argued: July 19, 1996

Decided: September 10, 1996

Before ERVIN, Circuit Judge, and BUTZNER and PHILLIPS,

Senior Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Lawrence Jay Fine, Winston-Salem, North Carolina, for

Appellant. Douglas Cannon, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee. ON BRIEF: Walter C.

Holton, Jr., United States Attorney, Greensboro, North Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Rodney Sumler appeals two aspects of his resentencing proceedings: the district court's two-level sentencing enhancement for

obstruction of justice and the imposition of a fine. On both issues, we

affirm.

I

A jury convicted Rodney Sumler on 22 counts arising out of an

extortion scheme involving the Board of Aldermen in WinstonSalem, North Carolina. The facts are set forth in our decision in

United States v. Hairston, 46 F.3d 361 (4th Cir. 1995). In Hairston,

we affirmed 18 of the 22 counts, reversed a count of perjury, and

vacated three other counts for being cumulative. We remanded the

case for resentencing for consideration of Sumler's ability to pay a

fine and because we had vacated or reversed four counts.

We review a district court's factual findings underlying sentencing

for clear error. 18 U.S.C. § 3742(e) (Supp. 1996). The statute directs

appellate courts to give "due deference" to a court's application of the

guidelines to the facts of each case. Id."Due deference" is a phrase

of flexible interpretation, ranging from clear error review for factual

findings to de novo review for legal determinations. United States v.

Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).

II

Sumler first challenges the court's assessment of two points under

the sentencing guidelines for his obstruction of justice. The guidelines

provide that a court should increase the offense level by two points

for defendants who willfully obstruct or impede the administration of

justice. USSG § 3C1.1. The guidelines offer as an example of ob-

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struction the production of a false document during an official investigation or judicial proceeding. USSG § 3C1.1, comment. (n.3(c)). The

court found that Sumler engaged in the obstruction of justice by creating false records of past events after receiving a subpoena to produce

his own records and the records of an institution with which he dealt.

We find no error.

The defendant also challenges the enhancement for obstruction of

justice as "double counting," claiming that he had already been penalized for such conduct in the racketeering and conspiracy counts of the

indictment. We reject this claim, as the racketeering and conspiracy

counts did not form the basis for the district court's sentence. In

imposing an offense level, the court grouped together all of the counts

on which Sumler was convicted. It then adopted the guideline application in the presentence report. The presentence report set the

offense level at 24, based on the offense that (together with enhancements) resulted in the highest level--extortion. Obstruction of justice

is not an element of most extortion offenses. See USSG § 2C1.1,

comment. (backg'd.). We find no "double counting" and affirm on

this issue.

As an aside, we note that the district court, in its grouping of

offenses, incorrectly included six counts (Counts 3, 4, 8, 19, 20, and

28) that occurred before November 1, 1987, the effective date of the

Sentencing Guidelines. Nevertheless, this did not affect the offense

level, since Sumler was convicted on three counts of extortion that

occurred after November 1, 1987: counts 12, 13, and 15. These

counts, standing alone, result in the offense level calculated by the

district court.

Next, Sumler claims that he did not have notice of the obstruction

of justice enhancement. We do not accept this assertion. The presentence report describes conduct that forms the basis for an enhancement based on obstruction of justice. Sumler was on notice that the

court could consider this conduct, and he had the opportunity to

"rebut or explain" this information. United States v. Bowman, 926

F.2d 380, 382 (4th Cir. 1991) (citation omitted).

III

The Sentencing Guidelines categorically state that a court "shall

impose a fine in all cases except where the defendant establishes that

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he is unable to pay and is not likely to become able to pay any fine."

USSG § 5E1.2. The defendant bears the burden of demonstrating his

present and prospective inability to pay. Hairston, 46 F.3d at 376. In

this case, Sumler responded to the district court's numerous requests

for financial information by offering only incomplete and inconsistent

responses. He did not submit an affidavit describing his financial situation, choosing instead to rely on the secondary knowledge provided

by his wife in her affidavit. A defendant does not meet his burden by

frustrating the court's ability to assess his financial condition. Id. at

377. The district court's imposition of the fine was proper.

AFFIRMED

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