UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4824

DOUGLAS J. ATKINSON,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Rock Hill.

Matthew J. Perry, Jr., Senior District Judge.

(CR-96-227)

Submitted: March 31, 1997

Decided: April 25, 1997

Before HALL and MOTZ, Circuit Judges,

and PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joel Wyman Collins, Jr., Arthur Kerr Aiken, COLLINS & LACY,

P.C., Columbia, South Carolina, for Appellant. J. Rene Josey,

United

States Attorney, Dean A. Eichelberger, Assistant United States

Attorney, Columbia, South 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Unpublished opinions are not binding precedent in this circuit.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:

Appellant Douglas J. Atkinson pled guilty to one count of making

false statements to a financial institution in order to obtain

loans in

violation of 18 U.S.C. § 1014 (1994). On appeal, he challenges the

district court's loss calculation under USSG § 2F1.1* and its

imposition of an obstruction of justice enhancement pursuant to USSG

§ 3C1.1. Finding no reversible error, we affirm.

Atkinson was a loan officer at a credit union. After being turned

down for a personal loan, he began processing loans in customers'

names and diverting the funds to himself. Bank officials eventually

noticed an irregularity in Atkinson's loan portfolio, suspended

him,

and began an investigation. A few days later, a customer advised a

bank employee, Terri Ashworth, that one of the loans on his account

was not his but that the money had gone to Atkinson. Ashworth confronted Atkinson at his new job, where he admitted to the fraud and

gave Ashworth funds to pay off some of the loans. Atkinson also

convinced Ashworth not to inform bank officials about his activities.

Approximately one month after the bank began its investigation, it

turned the investigation over to the FBI. Agents interviewed

several

of the bank customers identified on the loans, including Ira Joe

Alley,

whose loan was paid off with the money given to Ashworth. Alley

told agents on three separate occasions that the loan was his

before

he finally admitted that the funds went to Atkinson. Ashworth also

lied to agents during her interviews. Atkinson admitted on crossexamination that he and Alley agreed in advance to lie about the

loan

if anyone should inquire about it. Evidence was presented showing

that Atkinson made similar arrangements with other bank customers.

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*United States Sentencing Commission, Guidelines Manual (Nov.

1995).

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Evidence was also presented showing that Atkinson paid off additional loans after the beginning of the FBI investigation.

In a fraudulent loan case, "loss" is defined as "the amount of the

loan not repaid at the time the offense is discovered, reduced by

the

amount the lending institution has recovered (or can expect to

recover) from any assets pledged to secure the loan." USSG § 2F1.1,

comment. (n.7(b)). The circuit reviews "de novo the district

court's

legal interpretation of the term `loss' under the Sentencing Guidelines, but `to the extent that the determination of the amount of

loss

is a factual matter, we review only for clear error.'" United

States v.

Castner, 50 F.3d 1267, 1274 (4th Cir. 1995). Only a preponderance

of the evidence need support these factual findings. United States

v.

Engleman, 916 F.2d 182, 184 (4th Cir. 1990).

We find that the district court properly calculated the loss as the

amount of the loans outstanding at the time the fraud was

discovered.

The plain language of USSG § 2F1.1, comment. (n.7(b)), prohibits a

reduction in the amount of the loss for payments made after

discovery

in cases such as this one where the loans were unsecured. We also

find persuasive the reasoning of other circuits which have

addressed

factually similar cases. See United States v. Lucas, 99 F.3d 1290,

1299 (a defendant cannot be permitted under the Guidelines to avoid

an increase for amount of loss in a fraud scheme simply by being

financially capable of repaying the money when discovered); United

States v. Sparks, 88 F.3d 408 (6th Cir. 1996) (bank loan officer

who

made a series of fraudulent loans in the names of various third

parties

for the purpose of benefiting himself not allowed to deduct

payments

made after discovery of the fraud because the bank had no realistic

expectation of immediate recovery at that point); United States v.

Bennett, 37 F.3d 687, 695 (1st Cir. 1994) (error for district court

to

give defendant credit for payments made after the date fraud was

discovered); United States v. Jindra, 7 F.3d 113, 114 (8th Cir. 1993)

(loss was the amount of the loans outstanding when the offense was

discovered because the defendant did not pledge assets to secure

the

loans).

We further find that the district court properly enhanced

Atkinson's
base offense level for obstruction of justice. In the present case,

the

district court found that Atkinson discussed ways to cover up his

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fraud with Alley and Ashworth, and we find that these conversations

support a finding of unlawful influence pursuant to USSG § 3C1.1.

In addition, both of these individuals eventually lied to FBI

agents,

and it took several interviews before they finally told the truth.

We

find that the record supports the district court's conclusion that

these

lies significantly impeded the investigation. Moreover, evidence

was

presented showing that some of the discussions between Atkinson,

Alley, and Ashworth occurred after the start of the official

investigation, and we find that this obstructive conduct falls squarely

within

the plain language of the Guidelines.

We therefore affirm the findings and sentence of the district

court.

We dispense with oral argument because the facts and legal contentions are adequately presented in the material before the court and

argument would not aid the decisional process.

AFFIRMED

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