UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4882

DONALD ALAN SKAGGS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

David A. Faber, District Judge.

(CR-97-44)

Submitted: March 24, 1998

Decided: May 8, 1998

Before WIDENER and NIEMEYER, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, George H. Lancaster, Jr.,

Assistant Federal Public Defender, Charleston, West Virginia, for

Appellant. Rebecca A. Betts, United States Attorney, Steven I. Loew,

Assistant United States Attorney, Charleston, West Virginia, 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Unpublished opinions are not binding precedent in this circuit.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 Donald Allen Skaggs appeals his sentence for one count

of aiding and abetting others in the unlawful possession of money

order forms. See 18 U.S.C. §§ 2, 500 (1994). Skaggs pled guilty in

accordance with a plea agreement. On appeal, Skaggs contends the

district court erred in enhancing his sentence for obstruction of justice

under U.S. Sentencing Guidelines Manual§ 3C1.1 (1995). Finding no

error, we affirm.

Skaggs was indicted on one count of stealing blank money orders

and a postal money order machine (18 U.S.C. § 1707 (1994)) (count

one), one count of aiding and abetting others in the theft and possession of a postal money order machine (18 U.S.C.§§ 2, 500) (count

three), and the aforementioned charge of aiding and abetting illegal

possession of money order forms to which Skaggs pled guilty (count

two). The charges resulted from a burglary of a West Virginia post

office. Prior to his arrest, Skaggs hid the postal money order machine

and attempted to cash some money orders. After his arrest and confinement, money orders linked to the burglary were unsuccessfully

presented for payment in Florida.

Pursuant to a plea agreement, Skaggs pled guilty to count two, and

the Government dismissed counts one and three of the indictment.

Skaggs did not agree to cooperate with the Government. In its presentence investigation report, the Probation Department recommended a

two-level increase for obstruction of justice based upon the finding

that Skaggs had threatened potential witnesses and failed to disclose

the location of the postal money order machine. The Probation

Department concluded that Skaggs's failure to disclose the location

of the postal money order machine promoted continued criminal conduct because additional post-arrest money orders had surfaced.

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At sentencing, the court stated that it would not consider the

alleged threats for purposes of enhancing Skaggs's sentence. However, it overruled Skaggs's objection to the two-level enhancement,

finding that it "was obvious [Skaggs] participated in concealing the

evidence" and his failure to disclose was "a continuing concealment

of the evidence."

Under USSG § 3C1.1, an offense level can be increased by two

levels 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." Application

Note 3 includes a "non-exhaustive" list of examples in which the

enhancement would apply:

[D]estroying or concealing or directing or procuring another

person to destroy or conceal evidence that is material to an

official investigation or judicial proceeding (e.g., shredding

a document or destroying ledgers upon learning that an official investigation has commenced or is about to commence),

or attempting to do so; however if such conduct occurred

contemporaneously with arrest (e.g., attempting to swallow

or throw away a controlled substance), it shall not, standing

alone, be sufficient to warrant an adjustment for obstruction

unless it resulted in a material hindrance to the official

investigation or prosecution of the instant offense or the sentencing of the offender.

We review a district court's finding that Skaggs obstructed justice for

clear error. See United States v. Puckett, 61 F.3d 1092, 1095 (4th Cir.

1995).

Skaggs contends that his silence regarding the whereabouts of the

stolen property was not the type of affirmative misconduct contemplated by § 3C1.1. We find this argument to be without merit. Skaggs

concedes that he hid the postal money order machine and the money

orders. Furthermore, the property remained concealed after Skaggs's

arrest and was still being utilized to further a criminal objective.

Skaggs's continued silence facilitated the concealment of the property

and hindered the ongoing investigation.

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Skaggs also contends that obligating him to speak or face an

enhanced sentence violates his Fifth Amendment privilege against

self-incrimination. Skaggs's sentence was not enhanced because he

remained silent. Rather, his sentence was enhanced because he concealed material evidence from an ongoing investigation. Furthermore,

Skaggs did not face further criminal prosecution. The Government

agreed to dismiss all other charges concerning the burglary. In addition, Skaggs was given use immunity for any information provided by

him under the plea agreement. Thus, we also find this claim to be

without merit.

Accordingly, we find no clear error and affirm the sentence of the

district court. 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 in the decisional process.

AFFIRMED

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