UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit.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 proceed-
ings: 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 Winston-
Salem, 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 investi-
gation or judicial proceeding. USSG § 3C1.1, comment. (n.3(c)). The
court found that Sumler engaged in the obstruction of justice by creat-
ing 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 penal-
ized 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 appli-
cation in the presentence report. The presentence report set the
offense level at 24, based on the offense that (together with enhance-
ments) 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 presen-
tence report describes conduct that forms the basis for an enhance-
ment 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 situ-
ation, 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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