The Honorable H. Franklin Waters, Chief Judge, United States District Court 1

for the Western District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-4172

___________

United States of America, *

 *

Appellee, *

 *

Appeal from the United States

v. *

District Court for the

 *

Western District of Arkansas

Ivan L. Due, *

 * {UNPUBLISHED}

Appellant. *

___________

 Submitted: February 3,

1998

 Filed: March 12,

1998

___________

Before McMILLIAN, HANSEN, and MURPHY, Circuit Judges.

___________

PER CURIAM.

Ivan L. Due appeals from the final judgment entered

in the District Court for the Western District of

1

Arkansas after he pleaded guilty to failing to report the

release of hazardous substances into the environment, in

violation of 42 U.S.C. § 9603(b). The district court
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sentenced Due to 18 months imprisonment and one year

supervised release, and imposed a $3,000 fine. Counsel

has filed a brief pursuant to Anders v.
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California, 386 U.S. 738 (1967). For reversal, Due

raises two challenges to his sentence. For the reasons

discussed below, we affirm the judgment of the district

court. 

Due first argues that the district court erred in

enhancing his offense level for obstructing justice. The

enhancement applies when a defendant directly or

indirectly threatens, intimidates, or otherwise

unlawfully influences a witness, or attempts to do so.

See U.S.S.G. § 3C1.1, comment. (n.3(a)) (1997). A

defendant is accountable not only for his or her own

conduct, but also for conduct that he or she aided or

abetted, counseled, commanded, induced, procured, or

willfully caused. See id., comment. (n.8) (1997). 

The record shows that Due was present at an office

meeting during which Walter Schluterman, vice president

of Custom Quality Gel-Coat, Inc. (CQ), told CQ employees

about the need for Schluterman and Due to distance

themselves from the hazardous waste disposal at CQ that

was currently being investigated by authorities;

Schluterman also discussed the possibility that CQ

employees could lose their jobs depending on the outcome

of the investigation. The record further shows that,

during two series of interviews, CQ employees provided

investigators with inconsistent accounts of what the

employees knew about the disposal. Given Due&s presence

at the meeting with CQ employees--combined with his

status as a part owner, officer, and supervisor, and his

failure to contradict Schluterman--we cannot say that the

district court erred in concluding Due unlawfully

attempted to influence witnesses, at least indirectly.

See United States v. Sykes, 4 F.3d 697, 699 (8th Cir.

1993) (per curiam) (standard of review). 
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Second, Due argues that the district court erred in

enhancing his offense level for his aggravating role in

the offense. Due was not only part owner and vice

president of CQ, but he was also a supervisor of the CQ

employees who participated in burying the waste, and CQ

employees indicated that Due and Schluterman had both

planned and participated in the illegal burial. Under

these circumstances, the district court did not
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clearly err in assessing the enhancement. See United

States v. Flores, 73 F.3d 826, 835 (8th Cir.) (standard

of review), cert. denied, 116 S. Ct. 2568 (1996);

U.S.S.G. § 3B1.1(c) (1997) (adjustment is appropriate

where defendant organized, supervised, led, or managed

criminal activity that involved fewer than five

participants and was not otherwise extensive). 

We have reviewed the record in accordance with Penson

v. Ohio, 488 U.S. 75, 80 (1988), for any nonfrivolous

issues for appeal, and have found none. Accordingly, we

affirm the judgment of the district court. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.