UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 99-4082

SHARON EDWARDS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-98-235-KC)

Submitted: July 30, 1999

Decided: August 25, 1999

Before WILKINS and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James E. McCollum, Jr., Carla M. Mathers, JAMES E. MCCOL-
LUM, JR., & ASSOCIATES, P.C., College Park, Maryland, for
Appellant. Lynne A. Battaglia, United States Attorney, James C.
Howard, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Sharon Edwards was convicted by a jury of two counts of bank
fraud, see 18 U.S.C. § 1344 (1994), and was sentenced to a term of
thirty months imprisonment. She appeals her sentence, contending
that the district court clearly erred in making a two-level adjustment
for obstruction of justice. See U.S. Sentencing Guidelines Manual
§ 3C1.1 (1998). We affirm.

The district court found that Edwards had engaged in two forms of
obstructive conduct: first, leaving a threatening message on the voice
mail of April Grant, a fellow employee whom Edwards believed had
reported that checks were being stolen at Kaiser Foundation Health
Plan, Inc., during the investigation of the offense and, second, con-
cealing the involvement of a co-conspirator, Pamela Gunn, during a
proffer session with the government.

An adjustment for obstruction of justice is warranted "[i]f the
defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the course of the investi-
gation, prosecution, or sentencing of the instant offense of convic-
tion." USSG § 3C1.1. Obstructive conduct includes attempts to
threaten or intimidate a witness, co-defendant, or juror. See USSG
§ 3C1.1, comment. (n.4(a)). The district court's determination that the
defendant engaged in conduct that obstructed justice is a factual find-
ing subject to the clearly erroneous standard of review. See United
States v. Puckett, 61 F.3d 1092, 1095 (4th Cir. 1995).

Concerning the district court's finding that she attempted to
threaten April Grant, Edwards first contends that the government did
not prove that Grant heard the message. However, it was not neces-
sary for the government to prove that Grant heard the message or was
actually intimidated by it, because an attempt to intimidate is suffi-

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cient for the adjustment to apply. See USSG§ 3C1.1, comment.
(n.4(a)).

Edwards also suggests that the district court's ruling was in error
because she testified at trial that she did not make the threat. But the
district court found credible the testimony of other witnesses who
identified her as the caller or identified the voice on the tape as hers.
Pamela Gunn testified at trial that she was with Edwards when
Edwards called April Grant and left the message on her voice mail.
Given that the district court found Gunn a credible witness, this evi-
dence alone was sufficient for the court to find that Edwards made the
call. See United States v. Self, 132 F.3d 1039, 1042 (4th Cir. 1997)
(resolution of factual dispute based on credibility of witnesses is not
clearly erroneous) (citation omitted), cert. denied, 118 S. Ct. 1573
(1998).

Edwards maintains that the adjustment should not apply because
Grant did not testify and thus was not "a co-defendant, witness, or
juror." USSG § 3C1.1, comment. (n.4(a)). However, Grant was a
potential witness and a threat to a potential witness is sufficient to
trigger the adjustment. See United States v. Johnson, 46 F.3d 636, 638
(7th Cir. 1995); United States v. Sanchez, 35 F.3d 673, 680 (2d Cir.
1994).

Next, Edwards argues that there was no evidence she acted with the
intention of obstructing the administration of justice. Her argument
focuses on whether the government proved that, at the time of the
call, there was an ongoing investigation by federal law enforcement
authorities--as opposed to a corporate investigation--and, if so,
whether Edwards was aware of the federal investigation. She does not
dispute the government's assertion at sentencing that the federal
investigation began in June 1997. She contends that the district court
improperly accepted the government attorney's memory as to when
the investigation began. Because Edwards did not contest the govern-
ment attorney's representation, the district court did not err in accept-
ing it as true.

No evidence was presented which established that Edwards knew
the federal investigation had begun when she threatened Grant. How-
ever, it is clear from Gunn's testimony about the statements Edwards

                     3
made to her when Edwards made the threatening call that Edwards
knew Kaiser was investigating the theft of checks, and that Edwards
believed Grant had assisted that investigation. The language of
§ 3C1.1 does not limit "the investigation" to a federal investigation.
This court has held that only conduct which occurs before any investi-
gation begins is outside the scope of § 3C1.1. See Self, 132 F.3d at
1042. Consequently, "the appropriate focus of inquiry is not whether
federal officials had begun involvement with the investigation, but
whether the investigation was for `the instant offense.'" Id. at 1043.
The term "instant offense" includes relevant conduct as defined in
USSG § 1B1.3. Id. Edwards was prosecuted for two counts of bank
fraud based on her receipt of money stolen from Kaiser, laundered
through co-conspirator Syvalia Satterfield's fraudulent "Kaiser Medi-
cal Systems" account at Crestar Bank, and transferred to her by means
of two checks drawn on the fraud account and made payable to her
cousin, Raynetta Green. By the time Edwards made the threat to
Grant, Crestar, Kaiser, and the FBI were investigating the scheme in
which she was a participant and, at the very least, Edwards knew of
the Kaiser investigation.

In sum, the district court had before it evidence that, at the time the
threat was made, an investigation of the instant offense was underway
and Edwards was aware of it. Consequently, the district court did not
need to inquire into whether Edwards knew specifically that federal
officials were involved, and the court did not clearly err in finding
that Edwards had attempted to obstruct justice on this ground.

The adjustment was also justified on the alternative ground identi-
fied by the court. In November 1997, before Edwards was indicted,
she accepted a proffer agreement offered by the government. She
agreed to give truthful information in return for the government's
assurance that her statements would not be used against her. In the
proffer interview, she denied knowing anything about the theft of
checks from Kaiser. At her trial, Edwards admitted lying during the
proffer session when she concealed her knowledge of Gunn's
involvement. She said she was motivated by a desire to let Gunn
negotiate an advantageous plea agreement.

At Edwards' sentencing, the government asserted that, when it con-
ducted the proffer session with Edwards, it had information about the

                    4
involvement of Satterfield and his employee, Barry Spriggs, but
needed to know who had been involved in the scheme at Kaiser.
Although Edwards had accepted a proffer agreement which required
her to be completely truthful and candid, she failed to tell the govern-
ment about Gunn's involvement.

Edwards' refusal to admit her own guilt in the proffer session could
not be a basis for the adjustment because she was not under oath. See
USSG § 3C1.1, comment. (n.2). In deciding that this conduct also
merited an obstruction of justice adjustment, the district court noted
that the commentary to § 3C1.1 provides that the adjustment is war-
ranted if the defendant makes "a materially false statement to a law
enforcement officer that significantly obstructed or impeded the offi-
cial investigation or prosecution of the instant offense." USSG
§ 3C1.1, comment. (n.4(g)).*

Edwards argues that her conduct did not significantly impede the
investigation, and thus did not warrant the adjustment. See USSG
§ 3C1.1, comment. (n.5(b) (making false statements under oath to law
enforcement officers does not merit adjustment unless Application
Note 4(g) applies). The government maintained that Edwards had suc-
cessfully concealed information to manipulate the criminal justice
system because she testified that her motive was to make it possible
for Gunn to get a better plea agreement. Gunn subsequently obtained
an advantageous plea agreement. The district court agreed that
Edwards' conduct constituted an attempt to obstruct justice. We find
that Edwards' conduct in concealing information to manipulate the
government in such a manner significantly impeded the investigation
because it misled the government about Gunn's involvement. There-
fore, the district court did not clearly err in finding that this conduct
also warranted the adjustment.

We therefore affirm the sentence. 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 the decisional
process.

AFFIRMED
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*The district court referred to Application Note 3(g), apparently using
the 1997 Guidelines Manual.

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