UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4086

TROY M. GRIER,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, District Judge.

(CR-95-207-MU)

Submitted: August 4, 1998

Decided: August 20, 1998

Before WIDENER, ERVIN, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Aaron E. Michel, Charlotte, North Carolina, for Appellant. Mark T.

Calloway, United States Attorney, Brian L. Whisler, Assistant United

States Attorney, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:

Troy Grier appeals from the sentence imposed by the district court

after pleading guilty to conspiracy to commit offenses against the

United States (counterfeiting, bank fraud, and postal theft) in violation of 18 U.S.C. § 371 (1994). Grier appeals his sentence. We affirm.

In March 1995, Grier met Celeste Roseboro and Yuri Southerland,

who invited Grier to participate in their scheme to defraud merchants

and banks by passing fake checks for cash and merchandise. Grier

drove Roseboro and Southerland to various banks and merchants and

Southerland paid Grier $150 per day. Grier was involved in the

scheme from May 1995 to August 1995 and had also attempted to

pass stolen checks with forged signatures.

Grier first asserts that the district court erred in applying U. S. Sentencing Guidelines Manual § 3C1.1 (1997), which provides for a twolevel enhancement if "the defendant willfully obstructed or impeded,

or attempted to obstruct or impede the administration of justice during

the investigation, prosecution, or sentencing of the instant offense."

During sentencing, the prosecutor presented evidence that Grier failed

to appear at his sentencing hearing in August 1997 and that the United

States Marshals attempted to locate Grier and serve an arrest warrant.

When the marshals located Grier, they approached him and told him

to put his hands where they could see them. Grier, who was in his

vehicle at the time, sped off at a high rate of speed. The marshals pursued but failed to catch him. Grier eventually surrendered.

Grier asserts that mere flight from arrest does not warrant an

enhancement for obstruction of justice under the Guidelines. The

question of whether flight from arrest qualifies as obstruction of justice involves a legal interpretation of the guidelines, and as such, the

determination made by the district court is reviewed de novo. See

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

This court has stated that "endangering others during flight or in the

course of resisting arrest involves active, willful behavior; in contrast,

mere flight or disagreeableness during an encounter involves more

passive or instinctive conduct." United States v. John, 935 F.2d 644,

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648 (4th Cir. 1991). Grier's leading the marshals on a high speed

chase constituted active and willful behavior in contrast to passive

conduct and could have resulted in harm to the marshals or innocent

bystanders. See United States v. Hicks, 948 F.2d 877, 884 (4th Cir.

1991). We find, therefore, that the district court correctly enhanced

Grier's sentence for obstruction of justice.

Grier next asserts that the district court erred in its determination

of the amount of loss attributable to him. Specifically, Grier contests

the length of his involvement in the conspiracy. A district court's

finding of amount of loss is generally a factual question reviewed for

clear error. See United States v. Chatterji, 46 F.3d 1336, 1340 (4th

Cir. 1995).

The presentence report establishes that Grier was involved in the

conspiracy for approximately three months. Grier admitted in an

interview with the probation officer that he worked for Roseboro and

Southerland from May through August 1995. At sentencing, the district court adopted the presentence report's factual findings and determined that Grier was accountable for three months of the loss

attributable to the overall conspiracy. Grier did not present any evidence at the sentencing hearing establishing that he was not involved

in the conspiracy for that amount of time. Thus, we find that the district court's loss amount calculation was not clearly erroneous.

Finally, Grier asserts that he should have received a reduction for

his "minor" role in the offense. The district court's determination of

a defendant's role in the offense is reviewable under the clearly erroneous standard. See Daughtrey, 874 F.2d at 218.

A defendant's role in the offense is determined by the entirety of

his relevant conduct, not simply by actions encompassed by the count

of conviction. See United States v. Fells, 920 F.2d 1179, 1184 (4th

Cir. 1990). Grier fails to establish that his actions within the conspiracy made him less culpable than his other co-conspirators. The record

shows that Grier passed stolen checks and was more than just a minor

participant. Thus, the district court did not err in declining to adjust

Grier's sentence to reflect a minor role in the conspiracy.

Accordingly, we affirm Grier's sentence. We dispense with oral

argument because the facts and legal contentions are adequately pre-

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sented in the materials before the court and argument would not aid

the decisional process.

AFFIRMED

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